What is the potential and limitations of the ICJ case for providing immediate relief in Gaza?

International Court of Justice ICJ 3
The Hague-based International Court of Justice. (Photo: ICJ website)

There are high hopes that South Africa’s ICJ (International Court of Justice) case can result in some important protective steps being taken to bring much needed relief in Gaza. This can come as a result of provisional measures being ordered in two important contexts. Firstly, there can be an order for substantially stepping up relief supplies, something which is important as well as likely. Secondly, there can be an order for halting military operations on both sides which is very important but not very likely.

As far as the main case is concerned, it may take years to decide whether there was any criminal genocidal intent. Just now what is more important are protective provisional measures and there is likelihood that these can come within a few weeks, probably in February. These are eagerly awaited and should come as soon as possible as each day continues to bring more and more distressing news. The sooner these can come the better it is.

The second step relates to implementation as these provisional measures can become effective only with the approval of the Security Council of the United Nations, and here these can be stopped by the use of the veto power of a single permanent member of the United Nations. Prime Minister of Israel Mr. Netanyahu has stated that he is determined to carry on his attack against the Hamas till he achieves the desired results. Let us see whether the US exercises its powers in a way which can annoy Netanyahu. This appears unlikely. What appears likely is that the provisional measures by themselves may be able to step up relief supplies and efforts, but may not be able to stop the military actions. Hence other efforts for peace should also continue, instead of placing all hopes in the decisions of the ICJ.

In the case of the Russia Ukraine War, the ICJ had ordered cessation of military operations in March 2022 but the war is still continuing. Russia had justified its military advance on the basis of alleged genocidal actions in parts of the Russian speaking region of Ukraine but Ukraine had denied this. The court did not accept the genocidal intentions and asked the military action to stop, but nothing came out of it.

However a question arises as to whether the ICJ is able within its procedures to take account of a much wider set of relevant factors. To give an example, in the case of Ukraine war could the ICJ have  considered at least the statements made by several senior US and western diplomats that legitimate security concerns of Russia had been violated or challenged by endless eastward expansion of NATO after promises of expanding not even one inch had been made?

The ICJ could also have considered that even if what had happened in the Russian speaking region of Ukraine had not amounted to a genocide, wasn’t it at least a very grave matter of atrocities against people of a certain ethnicity or language group, or was it not a grave provocation?

Also, it is not possible to consider this war without also considering the 2014 US/West assisted coup which ousted a legitimately elected government of Ukraine and set the country on a confrontational course resulting ultimately in very serious and distressing consequences for the overwhelming majority of the people living here. Is it not possible for the ICJ, in the interests of justice, to take a wider view considering all relevant issues?

Similarly, in the case of Gaza, it is important to consider several other important issues such as a lot of important information which suggests that there was deliberate neglect of warnings that were certainly available regarding the October 7 attack. This in turns suggests that this attack was used as a pretext for a much more massive attack on Gaza with the possible objective of evacuating all or most of the people here. If such important issues can be considered by the ICJ on the strength of all available evidence, then the case for stopping the military operation becomes much stronger. What is more, instead of indicting an entire country in such cases, the attempt should be to indict only the most aggressive elements. Once an entire country is indicted, the response is to close ranks, whereas if only the most aggressive elements likely to be responsible for the mass distress are indicted, then these elements get isolated and weakened, particularly if already there are reasons for many, many people in the country to be suspicious of such leaders. In fact if the justice processes lead to the weakening of the most aggressive forces on both sides, then we will get nearer to peace, as dominating aggressive forces on both sides feed on each other leading to prolonging of conflicts.

Lastly, an important question needs to be raised– whether several prominent leaders of the most powerful countries who have been responsible for the death of several hundred thousand innocent people in recent decades will ever be brought before the ICJ? The answer on the basis of the past record appears to be a big no.

Bharat Dogra is Honorary Convener, Campaign to Save Earth Now. His recent books include Planet in Peril, Protecting Earth for Children and A Day in 2071.     


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