ICJ will likely order ceasefire in Gaza on Friday, say legal experts

As the International Court of Justice is set to convene in The Hague Friday at 1 PM local time, legal experts who spoke to The New Arab predict the court is likely to approve some or all of South Africa's requests for provisional measures that could include ordering a ceasefire in Gaza

This follows nearly two weeks of deliberations after accusations by South Africa the Israeli military operation in Gaza amounts to a state-led genocide, with over 25,000 killed directly by Israel fire and many more wounded, displaced, and stuck in famine conditions.

Activists and political figures supporting the Palestinian cause are expected to gather outside the court building, while Naledi Pandor, South Africa's Minister of International Relations and Cooperation, is set to attend the session.

"Israel has failed to provide any compelling legal basis to counter the South African case regarding the necessity of issuing emergency measures," said Palestinian lawyer Abeer Baker.

"Israel's response has focused on its right to self-defence...but Israel's relationship with Gaza did not start on October 7, she added.

"Establishing the context is not an attempt to justify crimes against Israeli civilians on that date. Instead, it may be the first question that needs understanding: Is the occupation or Israeli control of Gaza before 7/10 legal? If the answer is yes, then we turn to discussing the right to self-defense. Malcolm Shaw, the British lawyer within the Israeli defence team, dismissed the context issue, even though it could provide essential answers to the most critical legal questions surrounding the principle of self-defence in this specific situation."

.@emadmoussa on why South Africa's ICJ case is the first meaningful step to stop Israel's genocidal intentions in Gaza and beyond: https://t.co/OvFMk7KgM7

— The New Arab (@The_NewArab) January 22, 2024

Baker said that South Africa's approach to framing the legal discourse within the context of the Israeli occupation was firmly grounded in legal principles. "To dissect the justification for invoking self-defence, one must first delineate the legal status of the area under attack", said Baker, in reference to Israel's multi-generational occupation of the Palestinian territory.

The ICJ is slated to convene on February 19 to address the ongoing Israeli occupation, encompassing the current situation in Gaza, at least until October 6.

Regarding Israel's claims surrounding procedural feasibility and the court's jurisdiction or competence to handle the case, the human rights activist and lawyer pointed out a critical failure on the part of the Israeli legal team. 

"Israel, by signing the Genocide Convention, effectively entrusted this court to mediate in disputes", she said. She further elucidated that Israel's plea to dismiss the request and lawsuit, citing a lack of jurisdiction due to the absence of a bilateral dispute between Israel and South Africa, lacks a solid foundation.

"South Africa has invoked its right to [initiate] litigation based on the concept of 'universal rights,' a notion updated post-proceedings in the Gambia v. Myanmar case (2019). This concept dictates that fundamental principles and standards in international law, particularly the prohibition of genocide, are binding obligations for all states towards the international community as a whole – not contingent on the complaining state being a direct party to the event."

Baker remarked on Israel's attempts to politicize South Africa's appeal to the ICJ, asserting, "South Africa has effectively trapped Israel, leaving no room for scepticism about its intentions. We are not dealing with an adversarial state or one entangled in border disputes. Consequently, Israel has resorted to casting doubt on South Africa's goodwill, insinuating that it 'hosted a representative from Hamas,' as if endorsing them. This claim is not only baseless but also absurd. The Israeli side failed to provide any evidence indicating politically motivated motives behind South Africa's litigation request."

Baker also underscored that "South Africa did not hesitate to condemn the events of October, describing them as 'atrocities.' However, it emphasized that the events of 7/10 cannot justify further atrocities against [Palestinian] civilians."

ICJ ruling a victory for Palestinians?

Sonia Boulos, Associate Professor of International Human Rights Law at the University of Nebrija in Spain, agreed with Baker.

"I anticipate the court will issue a provisional measure orders, considering various factors such as similar past cases like Ukraine and Gambia", she said.

"The court will not assess whether all facts point to genocide; rather, if part of the facts can be framed as a charge of genocide, it is sufficient to issue the temporary measures requested by South Africa, which include halting military operations in Gaza and preventing people from being expelled from their homes or destruction of evidence", she added.

According to the legal expert, the court may not accept all nine articles presented by South Africa, but it may instruct Israel to comply with international laws.

However, Israel has blatantly disregarded the binding decisions of the United Nations Security Council in the past. It acted contrary to the Advisory Opinion of the ICJ regarding the legal consequences of building the separation wall in the occupied Palestinian territory in 2004. 

Still, Article 94 of the United Nations Charter requires all member states to comply with the decisions of the ICJ in cases to which they are parties. In case of non-compliance, the United Nations Security Council is authorized to take necessary measures to enforce the judgment. However, given the alliance between the United States and Israel, it is challenging to envision the Security Council playing a role in enforcing future decisions due to the veto powers held by the United States.

While the ICJ's decision could be an ethical triumph for the Palestinian victims, Boulos said "the final decision cannot be construed as a simple win or loss; there are several levels. Currently, the court will decide on interim measures, and South Africa presented an excellent intervention regarding these measures," she added.

"Even if the decision does not align with our expectations, it will be significant in terms of public opinion pressure and may strengthen anti-war movements. Individual countries, institutions, or companies may cut ties with Israel."

This article has been updated to fix earlier typos