Israel at the International Court of Justice: A Stern Test for the United Nations and its Institutions

By Marvin Hannington Kalema

The year 2024 promises to be yet another interesting one if the events that transpired at the close of the past year are anything to go by.

On the 29th of December 2023, the government of the Republic of South Africa formally filed a case against the state of Israel with the Hague based International Court of Justice, (ICJ) where renowned Ugandan legal brain, Mrs. Jalia Ssebutinde, sits as a judge. The application to institute proceedings, is in relation to the Israel’s conduct in its ongoing war against Palestine.

The eighty-four paged application filed in court lists a number of grounds for their complaint but perhaps the flesh to their application is their reference to the acts performed, condoned and threatened by the state of Israel to the Palestinian people as genocidal in nature – essentially contravening the principle of self-determination.

South Africa argues that such acts are genocidal as they are intended to bring about substantial destruction of the Palestinian national and ethnic community in the Gaza strip. The African nation points out further that such acts are in direct contravention of various provisions in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). South Africa further prays that the ICJ outlines provisional measures to be adhered to by Israel to stop the continued abuse of human rights in its ongoing war on Palestine before the situation becomes irreparable.

To scholars of international law, relations and diplomacy – and perhaps all objective peace-loving global citizens, this new development could be a major test of the objectiveness, impartiality and independence of the UN and its institutions in particular the ICJ.

I therefore highlight why it is important, in light of the current global reputation of the UN, for the court as scheduled between the days of 11-12th January, to swiftly and justly handle the application, if the global peace-keeping organization is intent on achieving its major aim and preserving its significantly damaged credibility.

It is additionally important to also note that much as the decisions of the ICJ are not binding and are more like advisory opinions, their relevance in influencing a global push to take further action against Israel in more appropriate forums like  the ICC must not be wholly dismissed like many already are.

Speaking plainly, the credibility of the UN has long suffered significant damage over the years and one may perhaps rightfully argue that confidence in the capability of the organization to execute the given mandate as established in its founding charter is waning fast.

Research into public confidence of the UN has produced statistics that do provide some insight. The World Value & European Value Survey (WVS/EVS) conducted between 2017-2022 in over 90 countries representing all geographical regions, indicated only about half of these countries maintain confidence in the organization.

Furthermore, more intriguing revelations from the WVS/EVS data indicate that confidence in the UN has been on a consistent decline since the 1990s in the Middle East, Northern Africa, Eastern Europe and Latin American regions. To anyone with keen interest in global events, it is quickly ascertainable that these are particularly the conflict-stricken areas, hence their low confidence in the global peace-maker is damning, if anything.  Obviously, this has not occurred in a vacuum as justifiable reasons do exist.

The peace-keeping body has generally failed to remain impartial and independent in its application and implementation of international law principles.

If anything has significantly contributed to the organization’s declining popularity of late, this has to be top of the list. Overtime, the world has witnessed major global superpowers especially and quite ironically, members of the Security Council influence the organization to condone or refrain from taking action on their abrasive and wanton abuse of said principles.

The organization has repeatedly appeared to have its hands tied as superpowers go about antagonizing world peace through various wars that align with their own selfish interests and not world peace.

Additionally, the organization has been ambiguous and unclear in its response to various conflicts all over the world that have drastically claimed civilian lives. There has generally been strong criticism and punishment for African war lords by the UN but often times, it has remained shockingly complicit when Western led actors such as the U.S and allies with their so-called anti-terrorism campaigns in the Middle East kill millions of innocent civilians due to reckless actions that are in their entirety, gross violations of international laws of war.

In essence, such tactics of selective application of the law, similar to the setting in George Orwell’s classic the Animal Farm, do not inspire much confidence in a body charged with promoting equality in the quest for world peace.

In the case at hand, the ICJ ought to decisively and objectively assess the case before it, and pronounce itself accordingly. It is in the interest of the court to ensure that its decision is as rational and just as it can be, free from any overt or covert influence. The court must strive to steer away from the precarious position, its sister institution, the International Criminal Court finds itself. The court’s independence and credibility are increasingly questioned yet it is supposed to play a major role in promoting world peace.

Comments from then National Security Advisor John Bolton in 2018 to the effect that the White House would no longer cooperate with the ICC, and would block any efforts to pursue U.S. or Israeli citizens, must only drive the ICJ to remain objective and not bow to any external pressure in the instant case.

The massacre of over 22,000 people including women and over 7,000 children in the Gaza should be reason enough for a swift and unequivocal response to the situation. It regrettably took weeks of back-and-forth discussions at the UN, just to secure a humanitarian ceasefire to ensure delivery of food and medical supplies to the Gaza population. The ICJ is hereby tasked with remaining extremely objective and delivering justice, restore confidence in the public as well as offering the much-needed relief to the Gazans.

It is important that the court duly assesses the overwhelming evidence of mass human rights violations as laid out in the application and take a step to address this. The applicants rightly note in their application that there is no attack on a state’s sovereignty, no matter how drastic, can be used to justify and defend breach of the Genocide convention. There is absolutely no moral or legal ground upon which the state of Israel can rely on to justify the massacre of children and families or razing down of homes, schools and hospitals.

At the 78th UN general assembly last year, part of the event’s theme reiterated the need to rebuild trust and reignite global solidarity. Before global states can trust each other, their unwavering trust in the UN as the body uniting them must be assured and confirmed. Additionally, in his 2022 address to the UN general assembly, the organization’s chief Antonio Guterres rightly cited geopolitical tension and lack of trust as the factors that poison the dream of international co-operation. He must have borne it in mind that recent developments have plunged public trust in his institution, hence action must be taken by its institutions to counter that.

On the other hand, as a parmanent member of the UNSC, the U.S must act responsibly and support upholding international laws. For this to happen, U.S officals like White House National Security Council spokesman John Kirby who told press that South-Africa’s suit against Israel is “meritless, counterproductive, and completely without any baisis,” must be called to order to let ICJ determine the case without such prejudice.

Also, there is need for all UN member states especially the Parmanent Security Council Members (P5) to strongly advocate and support dilague and diplomacy as a way of ensuring peace and tranquility globally. On this note, one can argue that today, more than ever, China’s proposed Global Security Inititive which seeks to address global security throgh dialogue, diplomacy, consultantion and respect of international laws is relevant and should be embraced by the entire world.

In conclusion, the UN and the ICJ, if desirous to further exert global influence, may borrow from the words of former US secretary of state and diplomat, Colin Powell that; credibility is built upon trust, integrity and consistency, as it goes about its business of hearing the application and pronouncing itself on the matter. It should be in the minds of all the judges that the world is watching with keen interest, how the court will conduct itself in the grand scheme of global peace and protection of human rights.

The writer is a Law scholar at Johannesburg University and a research fellow with Development Watch Centre.

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