After Israel presents its arguments to the International Court of Justice (ICJ) tomorrow afternoon to South Africa’s allegations, the 17 judges who include the former President of Israel’s Supreme Court Aharon Barak will decide whether to issue a temporary injunction against Israel. At this stage the court will not rule on whether Israel has committed genocide and war crimes, as alleged. These charges will be examined at length and it could be years before there is a ruling.
These are the options open to the ICJ at this stage:
The first option is that the request will be dismissed and there will be no order issued. Estimate are that this outcome is less likely. The next option is the issuing of a general order instructing in a general way that these offenses not be committed. Adv. Roy Schondorf, a former deputy legal advisor to the Israeli government on international law, and currently head of International Dispute Resolution at the Herzog Fox & Neeman law firm explains, “This would be a hollow order. An order that is declaratory but does not say much. For example, ordering the State of Israel to act according to the law of warfare or not to violate the genocide convention.”
Another possibility is for the ICJ to intervene in the field of humanitarian supplies and order Israel to guarantee humanitarian aid. In addition, there is a possibility that the court will determine that statements made by Israeli officials must be investigated. Israel is expected to obey such an order as well. This week, the Israeli government’s Attorney General issued an unusual notice that “Statements that call for, among other things, intentional harm to innocent civilians, are against current policy and could constitute criminal offenses, including incitement”. These days, there are several cases under consideration by law enforcement officials. The message is intended, according to the assessment, to deter senior officials from speaking out in general about the population in Gaza.
At the most severe extreme, there is the possibility of the ICJ issuing an order to stop Israel’s fighting in the Gaza Strip.
Would Israel obey any order issued by the ICJ?
The ICJ does not have the power to enforce its decisions but there is the possibility that countries turn to the UN Security Council with a request to enforce any ruling. Adv. Schondorf says, “Israeli is not expected to obey any order, even though it is required to according to international law. But countries can turn to the Security Council and demand that steps be taken to obligate Israel. The US can use its veto, but it is not easy to veto an order of the court. The US could make demands from Israel concerning the fighting.” Adv. Schondorf adds that such a situation would snowball in the international arena and could influence countries on whether to sell military equipment to Israel.
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Prof. Amichai Cohen, an expert in international law, and external counsel to the Barnea Jaffa Lande law firm says that this is an unlikely outcome. But if it does happen, he believes that Israel would not halt the fighting. “In the only case that such an order was issued, in the case of Ukraine versus Russia, the order was issued because Ukraine told the ICJ that it would stop hostilities as soon as Russia did. It goes without saying that there is no such statement here.”
Also in his opinion, issuing a cease-fire order could lead to problems in relations with Israel’s allies. “It is unlikely that Western European countries will continue to sell weapons to Israel in order to continue the war that the court ordered to stop.”
Since 2001, the ICJ has issued temporary injunctions in 15 different cases. In seven of the 15 cases, the country to whom the injunction was issued against did not obey the order,” says Prof. Cohen. But he stresses that five of those seven cases were against Russia or the US, against whom the court’s ability to enforce an order is not really significant.
Published by Globes, Israel business news – en.globes.co.il – on January 11, 2024.
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