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ICJ’s Israel judgement seeks to restore rule of law to a brutal conflict

In its politically incendiary but legally nuanced hearing on Friday, the UN’s highest court made one thing clear: Israel’s battle with Hamas will ultimately be judged against the international norms of how war ought to be waged.

That, legal experts said, was in itself to be celebrated: the restoration of the primacy of international humanitarian law to a conflict marked by the most primal of tactics.

Since October 7, when Hamas attacked Israel in a cross border raid, the war has included the taking of hostages, the killing of innocents, the imposition of a siege and the widescale destruction of civilian infrastructure.

Each of those acts, the International Court of Justice said, was prima facie evidence to let the trial continue, placing Israel in the docket for genocide, the gravest of crimes against humanity, while demanding Hamas release its hostages unconditionally.

Its interim rulings — the final verdict will take years — left both sides with little moral victory. On one hand, the court did not call for Israel to halt its campaign against Hamas, tacitly acknowledging the dangers still posed by the Palestinian militant group, a fact that Prime Minister Benjamin Netanyahu praised immediately.

But, by agreeing to continue hearing South Africa’s claim that Israel was perpetrating a genocide in Gaza, it put the Jewish state on notice that its actions were being monitored for the gravest crime a nation can commit.

For now, the court’s 17-judge panel has presented Israel with both legal peril and an opportunity, said David Kaye, who was the US state department’s top legal adviser on the laws of war after the 9/11 terrorist attacks.

Kaye said Israel could seize the moment to “to show the world that it is acting in compliance with international law”.

“For Israel the court’s order presents it with a dilemma — and the dilemma is how does it convey to the world that it is acting consistently with international law?” he said.

“Any approach that looks like it is just restating what it has already said, or just providing the international community with talking points, could reinforce the sense that it is behaving illegally in Gaza. That’s the risk.”

The complexities of international humanitarian law, a body of jurisprudence that took firm shape after the horrors of the second world war and the Holocaust, allow both Israelis and Palestinians to seek a ruling that rises above divisive geopolitics, misinformation and bias.

“At a very high altitude, after several months of conflict that has been driven by a situation on the ground and by politics, you have your first legal intervention,” said Kaye, now a professor at the University of California-Irvine.

“It’s a warning to Israel that however you characterise the acts in Gaza, they are raising serious, grave concerns to its commitment to international legal norms.”

For Palestinians, the case allows the rare opportunity to seek justice under the impartiality of international laws, rather than the Israeli courts that critics say have circumscribed their lives since 1948.

“This is a binding legal obligation [and] an important reminder that no state is above the law,” said Riyad al-Maliki, the Palestinian foreign minister.

Diana Buttu, a Palestinian lawyer who helped win an ICJ opinion in 2004 that Israel’s Separation Barrier was illegal, said: “This marks the end of the era of Israeli impunity — this decision isn’t just about Israel and Palestinians, but it forces other states around the world to undertake measures that Israel isn’t carrying out genocide.

“Israel is now in the same category of other states like Myanmar, Rwanda and Yugoslavia who have been credibly accused of genocide.”

While lambasting the court for letting the trial continue, Israeli leaders signalled a nod to the court’s demands. Netanyahu and Yoav Gallant, his defence minister, said that the Israel Defence Force was seeking to facilitate humanitarian assistance to Gaza and that its soldiers were acting professionally.

Human rights groups, international aid agencies, including the UN, and Palestinians reject that assertion strongly. They point to the deaths of at least 26,000 people in Gaza, according to Palestinian officials, most of them women and children, and the humanitarian disaster within the enclave.

The court made pointed references to the scale of that suffering, an indication that it would form a central theme of its final ruling. It ordered Israel to provide a report within 30 days of how it was limiting Palestinian civilian harm.

“They effectively reminded the party, Israel, of its obligations to comply with the law,” said Yuval Shany, a professor of Public International Law at the Hebrew University of Jerusalem. “Israel would still be in a position to say after the order had been issued that it didn’t require it to do something it is not already claiming to be doing.”

But in practice, he said, the ruling was problematic because “it keeps the case before the court in a rather active manner, which would effectively require Israel to provide explanations on an ongoing basis as to how it is implementing its international obligations”.

Unlike the International Criminal Court, the ICJ does not have investigatory powers, and the reports that it has ordered from Israel will probably be provided to South Africa to challenge.

The ICC, in a separate case going back to 2015, is investigating allegations of war crimes by both Israel and Hamas and that case poses the still-distant possibility that individual Israeli politicians and military leaders either provide evidence to the court, or face international arrest warrants.

The existence of the case, and the ICJ genocide case, is for many Israelis evidence that they will be judged unfairly in an any international forum, said Alan Baker, a former Israeli military prosecutor.

Baker added that was Palestinian policy is to delegitimise Israel, using “lawfare” and the UN to damage Israel’s standing.

“These cases receive such high publicity that it is damaging to Israel’s profile,” he said. “This type of litigation is damaging to Israel.” 

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