By Jordan Cope | Jerusalem Post | February 7, 2024
In January, the International Court of Justice (ICJ), in its South Africa vs Israel case, released its interim order. The ICJ refused to dismiss South Africa’s baseless charges, which falsely accuse Israel of genocide in the October 7 war against Hamas in Gaza.
However, it also refused to grant the plaintiff’s main request – a demand that Israel unilaterally ceasefire. The decision has perplexed many pro-Israel activists and their foils, leaving both sides jubilant and disappointed, sometimes simultaneously, as they try to digest the order and predict the court’s final ruling on the merits.
To understand the order’s true essence, one must heed the unwritten. For a court that has recently granted a provisional measure (similar to a preliminary injunction) demanding a ceasefire, the court’s refusal to follow suit here is telling. It likely reveals the ICJ’s belief that Israel’s war in Gaza is lawful. With South Africa having failed to convince the court of provisional measures requiring that Israel halt or even change the course of its fighting – motions requiring a lower burden of proof (“plausibility”) – Israel appears poised for ultimate vindication.
A valid question therefore remains: why has the ICJ seemingly sought to obscure the essence of its order with condemnations of Israel and other redundant provisional measures? The short answer is political necessity, both for the ICJ’s judges and its institution at large.
What are the politics tied to the ICJ?
While many view the ICJ as an independent judicial body, it is inherently political. As the “principal judicial organ of the United Nations,” the ICJ is strongly influenced by the UN. Its judges are elected by the UN General Assembly and Security Council (UNSC), bodies notorious for anti-Israel bias. Whereas the former UN organ has exhausted roughly 70% of its condemnations of Israel since 2015, the latter has failed to place Hamas and Hezbollah – which aspire to Israel’s destruction—on its terrorism blacklist. Were it not for the US, which has vetoed 45 anti-Israel resolutions, the UNSC too could mirror the General Assembly in terms of anti-Israel bias.
By nature of the ICJ’s structure, its judges are accountable to the UN. As ICJ judges face reelection every nine years, some surely will feel pressure to deliberate according to the agendas of their constituents – UN member states – and their anti-Israel biases. According to a study conducted by law professors Eric Posner and Miguel de Figueiredo, there is “strong evidence” to suggest that ICJ “judges favor the states that appoint them.”
What will siding with Israel lead to?
When ICJ judges side with Israel, they must demonstrate tremendous willpower or cunning, especially so in this case, which took place after the UN General Assembly voted overwhelmingly to support a ceasefire in Gaza. Judges who defy the status quo and stand with Israel potentially hurt their odds of reelection. Further, they risk jeopardizing the courts’ flailing legitimacy, characterized by its toothlessness and inability to enforce rulings.
In this case, it would make sense that the ICJ obfuscates its ruling with criticisms of Israel in order to save face with its constituents, UN member states, which, largely consisting of non-democracies, frequently scapegoat Israel to deflect from their own human rights abuses.
It is also likely that the ICJ has “tempered” its interim order that otherwise favors Israel with anti-Israel remarks and by allowing the case to proceed with the following provisional measures being granted:
These measures include that Israel: 1) take all possible measures to prevent the commission of acts constituting genocide; 2) take all possible measures “to prevent and punish the direct and public incitement to commit genocide;” 3) “take immediate and effective measures to enable the provision” of humanitarian assistance; 4) “take effective measures to prevent the destruction and ensure the preservation of evidence” that could indicate the occurrence of genocide; and 5) submit a report in a month indicating it’s compliance with the above.
However damning these measures may sound, they don’t really demand specific changes to how Israel is conducting its war – a win for the IDF. Further, they in no certain terms imply guilt on Israel’s part, but rather seemingly demand of it what it is already doing.
These tactics nevertheless create confusion, which has benefited the ICJ, quieting dissent, creating a false appearance of victory for anti-Israel activists, while allowing Israel to continue its defensive war in Gaza. By the time the ICJ’s final verdict on the merits arrives – surely years from now – the war will likely have long settled.
In summary, the ICJ has seemingly sought to shroud its interim order that is otherwise favorable to Israel with language strongly critical of it, in order to create a buffer from criticism where it can otherwise apply the law. This tactic also allows it to save face with its anti-Israel landlord, the UN, which carries the keys to the judges’ future on the panel, and to boost its otherwise flailing reputation with UN member states. While time will only reveal the ICJ’s true motives in this confusing order, one ought not be surprised if its final ruling vindicates Israel, even if it is likely to come with another tongue-lashing against the Jewish state.
The writer is an attorney and the director of policy education at StandWithUs, an international nonpartisan organization which supports Israel and combats antisemitism.
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