If the ICJ today orders Israel to cease its military operations in Gaza, the consequences would be dire.
At 14:00 SAST today, the International Court of Justice (ICJ) will rule on the first phase of South Africa’s application, asking it to institute provisional measures against Israel, including a total halt to military activities in the territory of Gaza, over what it considers to be plausible allegations of genocidal actions.
These provisional measures would remain in force until the ICJ can make a ruling on whether or not Israel actually did, in its view, violate the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. That could take years.
I’ve written at some length about South Africa’s application, its selective morality, and Israel’s robust response before the court. I’m not proposing to rehash these arguments here, save to say that support and condemnation of South Africa’s action has largely fallen along political lines, with the left and the geo-political ‘Global South’ reflexively applauding it, while conservatives, classical liberals and the liberal democracies of the West have strongly condemned it.
The implications of an order against Israel, however, will be far-reaching.
Human shields
The most repugnant of these implications is that it will vindicate the military strategy of using human shields.
The laws that protect civilians during warfare assume that combatants are distinguishable from civilians by wearing uniforms, that civilian structures are not abused for military purposes, and that civilian populations do not remain present in combat theatres.
Violating these conditions in themselves constitute war crimes, and the civilian casualties that occur as a consequence ought rightfully to be blamed not on the opposing force, but on the side that placed civilians in peril in the first place.
Hamas, and many terrorist groups like it, often disguise themselves as civilians. They embed themselves among civilians, and operate from within and among civilian structures – including residential buildings, schools, hospitals and houses of worship. They instruct civilians to ignore evacuation notices, in order to maximise the civilian casualties of war.
These casualties, which often include women and children, are then used for propaganda purposes, with the help of a compliant international media which is only too happy to publish dramatic photographic evidence of Israel’s perfidy. There have been allegations that particularly poignant photos have been staged outright.
Hamas openly exploits the civilian casualties it engineers to garner international sympathy for its cause and inflame public condemnation of Israel.
Describing the civilian casualties that Hamas deliberately brings about as ‘genocide’ on the part of Israel would tell the world’s less scrupulous armies that hiding behind civilians and provoking civilian casualties are valid military strategies.
An ICJ ruling against Israel would reward Hamas for using human shields and legitimise the practice in other conflicts.
Cheapening genocide
South Africa’s action also risks cheapening the crime of genocide. It is meant to apply only to killing people for belonging to a particular national, ethnic, racial or religious group.
The killing of civilians, even if deliberate, may be a war crime, or it may be a crime against humanity, but it does not necessarily constitute genocide.
By trying to lump various alleged war crimes into an over-arching claim of genocide, this term for the ultimate crime may come to apply to a large proportion of the parties to wars, whether just or unjust, aggressive or defensive, restrained or indiscriminate.
Conversely, it takes focus away from potentially legitimate accusations that Israel’s Defence Force crossed the line with particular actions during its war against Hamas.
Air strikes
It also calls into question the future of missile or air strikes as a legitimate military tactic. If any unintentional civilian casualties can simply be recast as deliberate and presented as evidence of genocidal intent, then all future wars will require boots on the ground, with all the risk to life that this entails.
Civilian casualties are tragic, but one cannot simply legislate against them and hope to solve the awful consequences of war.
It is in any case questionable whether the rate of civilian casualties in Gaza – inasfar as it can be determined at all – has been particularly high. In 2022, the UN Security Council was told that 90% of all war-time casualties are civilians.
If that alone renders the pursuit of a war ‘genocidal’, then no military campaign, however just and necessary, can escape the charge.
Unilateral ceasefire
An ICJ ruling to cease all military activities in Gaza, which is what South Africa has requested, would apply only to Israel, and not to Hamas, which is the official government of Gaza.
Hamas continues to attack Israel. It continues to launch rockets. It continues to hold hostages. It has sworn to repeat attacks like the heinous massacre of civilians on 7 October 2023.
If the ICJ were to rule against Israel, it would imply that it could not defend its territorial integrity and its citizens against ongoing aggression.
The right to self-defence against an armed attack is considered fundamental by the United Nations. Telling only one side to lay down its arms would render it helpless and nullify this right.
Existential threat
If Israel were forced to lay down its weapons, then there really would be genocide: genocide of the Jews.
This is an existential question for Israel. It isn’t a matter of politics, or whether or not the Netanyahu government is legitimate, or prosecutes the war against Hamas in an acceptable manner.
If Israel were to cease its military activities in Gaza, its own existence would hang in the balance. Even if it is ultimately found not guilty of committing genocide, it would have lost the propaganda war of legitimacy.
Its enemies, now given a free hand to attack it without fear of retaliation, are committed to a one-state solution that destroys Israel and puts in its place an Islamic extremist state, in which Jews would be killed, or from which they would be expelled as they have been from other Islamic countries.
Any view of the world in which Israel has a right to exist, and a two-state solution is the objective, cannot tolerate an order that Israel unilaterally ceases its defensive war against Hamas.
The legitimacy of the ICJ
Ultimately, setting all these precedents would fatally undermine the legitimacy of the ICJ, and perhaps even the wider UN.
Israel would obviously ignore a ruling against it. It cannot afford to do otherwise. Who can comply with an order to bare their neck against their attackers?
Israel would be supported by major world powers, including the United States and many European countries.
A unilateral ceasefire ruling would itself be illegitimate, and would fatally poison the ICJ’s reputation, stature and legitimacy.
[Image: A member of Hamas shows identity cards of Israeli soldiers. Photograph courtesy of the German Federal Agency for Civic Education.]
The views of the writer are not necessarily the views of the Daily Friend or the IRR
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