Israel genocide case: Possible scenarios for interim world court ruling

ISTANBUL

All eyes are on The Hague today as the International Court of Justice (ICJ) is set to rule on South Africa’s request for provisional measures against Israel over its alleged genocide in Gaza.

Legal experts and human rights lawyers have expressed hope that the top UN court will order provisional, or emergency, measures in Gaza.

The court will not be ruling on the overall question of whether Israel is committing genocide, a decision that experts say could take years.

But they offer varying perspectives about a potential decision on the series of interim measures requested by South Africa, which include the suspension of Israeli military operations in Gaza and permission for deliveries of food, water, fuel and other essential humanitarian aid.

Today’s decision will be taken by a panel of 17 judges from various countries: Australia, Brazil, China, France, Germany, India, Jamaica, Japan, Lebanon, Morocco, Russia, Slovakia, Somalia, Uganda, US, along with an ad hoc judge each from Israel and South Africa.

What are the possible outcomes?

Gerhard Kemp, a professor of criminal law at the University of the West of England, Bristol, told Anadolu he expects the ICJ to grant “at least some of South Africa’s requested provisional measures.”

However, he does not believe the world court will “order the immediate suspension of Israel’s military operations in Gaza.”

“I expect the ICJ to order Israel ‘to prevent genocide’ and probably some of the humanitarian steps identified in South Africa’s application, for example, access to food and medical supplies,” he said.

Another possibility is that the court orders no provisional measures or that it does not have jurisdiction in the case, the latter being a primary point of contention in Israel’s defense at the ICJ.

“If the ICJ does not find in favor of South Africa’s application, then South Africa could, in theory, still declare a dispute between South Africa and Israel under the Genocide Convention, and may move on to a hearing on the merits,” Kemp explained.

“But it will then be more difficult if the ICJ could not find a risk of genocide now at the preliminary phase.”

Michael Becker, an assistant professor of international human rights law, at Trinity College Dublin, is of the view that the ICJ will find that South Africa satisfied the requirements for provisional measures.

“South Africa did enough to demonstrate that its claims under the Genocide Convention are at least plausible, and demonstrated that the humanitarian crisis in Gaza poses an urgent risk of irreparable prejudice to the rights of Palestinians in Gaza,” he told Anadolu.

Like Kemp, he is also unsure if the ICJ will order Israel to suspend all military operations.

“It is possible that the court will do so, but it seems more likely that measures will be directed at constraining Israel’s military operation – not compelling a cease-fire,” said Becker, a former ICJ staffer.

“It also seems likely that the ICJ will direct Israel to facilitate the delivery of humanitarian assistance, but the precise formulation of the court’s direction will be something to watch for.”

Becker pointed out that even if the court does not grant South Africa’s request for provisional measures, the case will still move forward over the larger question of Israeli genocide in Gaza.

Penny Green, a professor of law and globalization at Queen Mary University of London, had earlier told Anadolu there is enough evidence to suggest that Israel’s actions in Gaza are tantamount to genocide – and with intent.

In Green’s assessment, the ICJ will likely accept South Africa’s plea for provisionary measures.

“It will probably say that, yes, there is a plausible case that genocide is being committed by Israel against the Palestinians in Gaza,” she said.

“In that case, they will instigate preliminary provisional measures against Israel to stop the genocide.”

She warned that a ruling against South Africa could have grave consequences for the international legal order.

“If the court finds against South Africa, if the court supports Israel and says that a genocide isn’t being committed, then, from my perspective, the ICJ and the international legal order is finished,” she said.

On the other hand, seasoned lawyer Francis Boyle told Anadolu in an interview earlier this month that he expects South Africa to “win a cease-and-desist order against Israel for genocide against Palestinians.”

Compliance and enforcement

Kemp emphasized that Friday’s ICJ decision will be binding on both parties, South Africa and Israel.

“Whatever the court decides, including the possibility of a suspension of military action, Israel would be bound by that,” he said.

“Whether Israel will adhere to an unfavorable outcome is doubtful, given the public statements by its leaders,” he added.

Since the Jan. 11-12 hearings, several Israeli leaders, including Prime Minister Benjamin Netanyahu, have given remarks to this effect.

Netanyahu said Israel will continue its deadly offensive on Gaza, which has already killed nearly 26,000 Palestinians and injured almost 64,000, regardless of what the ICJ decides.

“If Israel fails to implement any of the measures ordered by the ICJ, then Israel will be in breach of its obligations as a state party to the Genocide Convention to adhere to the dispute resolution clause of that treaty,” said Kemp.

“That means that South Africa can approach other organs of the UN, notably the UN Security Council, for enforcement. But we can expect the US to veto any measures or sanctions against Israel.”

International human rights lawyer Boyle also spoke about the possibility of a US veto earlier this month, explaining that South Africa could then take the order to the UN General Assembly (UNGA) for enforcement under the “Uniting for Peace” resolution.

Boyle was referring to UN Resolution 377 A (V), called Uniting for Peace, passed in 1950 with the aim of addressing situations where the UN “fails to exercise its primary responsibility for the maintenance of international peace and security” because of a Security Council deadlock.

The UNGA then “could suspend Israel from participation in United Nations activities, exactly like the General Assembly suspended the criminal apartheid regime in South Africa at that time, and the genocidal Yugoslavia from participation in the United Nations Organization,” according to Boyle.

Another possibility is the UNGA admitting Palestine as a full-fledged UN member state, he said, stressing that “the votes are there” to change its status from an observer to a full-fledged UN member state.

Becker also pointed out that the ICJ has no means to directly enforce its orders.

“This responsibility falls to other actors, whether that means individual states or the UN Security Council,” he said.

However, it is important to keep in mind that how other states respond to any decision by Israel to defy the order may also depend on the content of the court’s decision, he added.

“The bottom line is that the court’s decision is likely to put additional pressure on Israel, as well as states that have broadly supported its action in Gaza, to change course,” said the former ICJ staffer.

“The precise impact of the court’s decision will be difficult to measure, however, as the ICJ case needs to be viewed as part of a broader political process.”

* With additional reporting by Muhammed Enes Calli