After Israel presents its arguments to the International Court of Justice (ICJ) tomorrow afternoon against South Africa's allegations, the 17 judges, who include the former President of Israel's Supreme Court Aharon Barak, will decide whether to issue a temporary injunction. At this stage, the court will not rule on whether Israel has committed genocide and war crimes, as alleged. These charges will be examined at length and it could be years before there is a ruling.
These are the options open to the ICJ at this stage:
The first option is that the request is dismissed and no injunction is issued. This outcome is considered unlikely. The next option is the issuing of a general injunction instructing that these offenses must not be committed. Adv. Roy Schondorf, a former deputy legal advisor to the Israeli government on international law, and currently head of International Dispute Resolution at the Herzog Fox & Neeman law firm explains, "This would be a hollow order. An order that is declaratory but does not say much. For example, ordering the State of Israel to act according to the law of warfare, or not to violate the genocide convention."
Another possibility is for the ICJ to intervene in the field of humanitarian supplies and order Israel to guarantee humanitarian aid. In addition, there is a possibility that the court will determine that statements made by Israeli officials must be investigated. Israel is expected to obey such an order. This week, the Israeli government's Attorney General issued an unusual notice that "Statements that call for, among other things, intentional harm to innocent civilians, are against current policy and could constitute criminal offenses, including incitement." Several cases are currently under consideration by law enforcement officials. The message is intended, according to the assessment, to deter senior officials from speaking out in general about the population in Gaza.
At the most severe extreme, there is the possibility of the ICJ issuing an order to stop Israel's military operation in the Gaza Strip.
Would Israel comply with an order by the ICJ?
The ICJ does not have the power to enforce its decisions, but there is the possibility of countries turning to the UN Security Council, with a request to enforce any ruling. "Israeli is not expected to obey any order, even though it is required to according to international law," Adv. Schondorf says. "But countries can turn to the Security Council and demand that steps be taken to obligate Israel. The US can use its veto, but it is not easy to veto an order of the court. The US could make demands of Israel concerning the fighting." Adv. Schondorf adds that such a situation would snowball in the international arena and could influence countries on whether to sell military equipment to Israel.
Prof. Amichai Cohen, an expert in international law, and external counsel to the Barnea Jaffa Lande law firm, says that this is an unlikely outcome. But if it does happen, he believes that Israel would not halt the fighting. "In the only case that such an order was issued, in the case of Ukraine versus Russia, the order was issued because Ukraine told the ICJ that it would stop hostilities as soon as Russia did. It goes without saying that there is no such statement here."
Also in his opinion, issuing a cease-fire order could lead to problems in relations with Israel's allies. "It is unlikely that Western European countries would continue to sell weapons to Israel, in order to continue the war that the court ordered to stop."
Since 2001, the ICJ has issued temporary injunctions in 15 different cases. In seven of the 15 cases, the country to whom the injunction was issued against did not obey the order," says Prof. Cohen. But he stresses that five of those seven cases were against Russia or the US, against which the court has no real ability to enforce an injunction.
Published by Globes, Israel business news - en.globes.co.il - on January 11, 2024.
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