How justice could play out in the international case against Israel

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Six months ago, South Africa filed a case at the International Court of Justice in The Hague, Netherlands, accusing Israel of genocide, claiming that Israel’s “acts and omissions are genocidal … intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group.”

The Genocide Convention, ratified at the United Nations in 1948, defines genocide as “the intent to exterminate, in whole or in part, a national, ethnical, racial, or religious group.”

On Jan. 26, the court issued provisional measures in the case, ordering Israel to prevent acts that could be considered genocidal and to enable humanitarian assistance to Gaza. Israel appeared to ignore the order. However, the court did not order Israel to suspend military activities in Gaza.

On May 24, the court, also known as the World Court, the ICJ and U.N. Court, ordered additional provisional measures: for Israel to halt its military operations in Rafah, Gaza.

Israel appears to be ignoring this order as well.

The ICJ is not a criminal court; it has no criminal penalties, and it cannot prosecute individuals. The court adjudicates states’ disputes over treaties and advises U.N. entities on legal questions. Established in 1945 by the U.N., all U.N. member states are parties to this court and can submit a case. Fully 153 states, including South Africa and Israel, have ratified the Genocide Convention, which means that any of these states can weigh in on cases concerning genocide. Although the court’s decisions are binding, the court has no mechanisms to enforce its decisions.

An order for provisional measures can occur while a decision is investigated, which can take years. These measures often require parties to a conflict to cease activities that might violate the disputed treaty. However, despite no enforcement for provisional measures, this can appear as a “win” in the court of public opinion.

Many ICJ cases deal with boundary disputes: Following the war in former Yugoslavia, Bosnia charged Serbia with genocide and attempting to exterminate Bosnian Muslims. In 2007, the ICJ held that the Srebrenica massacre was, indeed, genocide. However, the court found that Serbia was not directly responsible for the genocide. The court did rule that Serbia had committed a breach of the Genocide Convention by 1) failing to prevent the genocide, 2) not cooperating with the International Criminal Tribunal for the former Yugoslavia in punishing the perpetrators and 3) failing to comply with previously ordered provisional measures.

In another case, in March 2022, in Ukraine v. Russia, the ICJ ordered Russia to immediately suspend its military operations in Ukraine — which Russia has ignored.

An infamous ICJ case was Nicaragua v. U.S. In 1986, the ICJ ruled that the U.S. violated international law by supporting rebels in their war against the Nicaraguan government. However, the U.S. refused to comply with the court’s ruling for the U.S. to pay war reparations, and it withdrew from the court’s jurisdiction. Nicaragua asked the U.N. Security Council to enforce the judgment, but the U.S., a permanent council member, vetoed any enforcement.

On March 1, Nicaragua filed an ICJ case accusing Germany of violating the Genocide Convention by facilitating genocide in Gaza. Nicaragua claims that Germany is facilitating genocide by 1) providing military, political and financial support to Israel and 2) suspending funding of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, or UNRWA.

The UNRWA issue arose over allegations that some UNRWA staff were part of the Oct. 7 Hamas attack on Israel. In response to these charges, the U.S., 16 other countries and the European Union also paused funding. After an independent review of the agency in April, most countries reinstated UNRWA support.

Nicaragua, like South Africa, also asked for provisional measures to prevent “genocidal acts” and to provide aid. On April 30, the court rejected the request.

However, the court will hear arguments on Nicaragua’s case, which alleges that, by supporting Israel, Germany failed to prevent genocide in Gaza — just like Serbia failed to prevent genocide in Srebrenica. The case will likely take years.

In related news, on May 20, Karim Khan, chief prosecutor of the International Criminal Court, announced that the ICC will seek arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, and Hamas leaders Yahya Sinwar, Mohammed Deif and Ismail Haniyeh for war crimes and crimes against humanity.

This court, also in The Hague, is an independent tribunal run by 124 member states. The mandate is the criminal prosecution of highest-ranking individuals for genocide, war crimes, crimes against humanity and aggression, occurring from 2002 onward, almost anywhere in the world and without regard for the nationality of the accused or the victims. Persons found guilty can face life in prison.

The ICC has been investigating the situation in Palestine since 2019.

Khan cited accusations against the Hamas leaders of murder, extermination, hostage-taking and acts of sexual violence as war crimes, and accusations for Netanyahu and Gallant for war crimes and crimes against humanity including the starvation of civilians as a weapon of war and “intentionally directing attacks against a civilian population.”

The ICC, like the ICJ, has no enforcement mechanism, relying on the state parties to arrest and transfer suspects to The Hague. The likelihood of arrest warrants has generated threats against the ICC and its personnel from both Hamas’ and Israel’s supporters.

The rule of law must apply equally to all states and to all people.

Ellen J. Kennedy is an adjunct professor at Mitchell Hamline School of Law and founder and executive director of World Without Genocide, located at Mitchell Hamline. She can be reached at kennedy@worldwithoutgenocide.org.

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Ellen J. Kennedy