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How a Slow-Moving Court Became the Center of the World’s Hottest Debate

WorldMiddle EastHow a Slow-Moving Court Became the Center of the World’s Hottest Debate

Hamas’s Oct. 7 attack on Israel had many unpredictable consequences, but the elevation of the International Court of Justice to global public attention is a particularly unexpected one.

In December, South Africa brought a case against Israel alleging violations of the Genocide Convention, and last week the court held hearings on a separate matter regarding Israel’s occupation of Palestinian territories.

The two matters have turned the court into a new arena for the political disputes and legal arguments over Israel’s actions in Gaza, where over 29,000 people have been killed, many by heavy Israeli bombardment. And although the court’s enforcement powers are limited, its public hearings, at a time of intense interest in the conflict, give it considerable power to shape, and reflect, global opinion.

The court’s conspicuous role is partly a coincidence of timing: The U.N. General Assembly requested that the court in The Hague issue a nonbinding advisory opinion on the legality of Israel’s occupation back in January 2023. It’s unlikely we’d be discussing those hearings in detail if war had not broken out in the meantime, and if South Africa had not filed its genocide case in the same court.

But for now, the court, the U.N.’s highest judicial body, has been thrust into the spotlight and asked to weigh in on a closely watched global conflict while hostilities are ongoing.

That has created a highly unusual situation. International court cases often move too slowly to have a real-time effect on current events, and frequently concern dry and arcane subjects such as fishery disputes.

Notably, procedural rules for both the Genocide Convention case and the advisory hearings have allowed dozens of countries to participate despite having no direct involvement in either the Israel-Hamas conflict or the occupation.

“What we’re seeing here, both with the South Africa case and now with the advisory proceedings, is that this is really being presented as a global concern,” said Yuval Shany, a professor of international law at the Hebrew University of Jerusalem.

South Africa’s case alleges that Israel has committed genocidal acts in Gaza, in violation of the Convention on the Prevention and Punishment of Genocide. (Any state that is a party to that treaty can bring a case before the international court, so South Africa was able to do so even though it isn’t directly involved in the conflict.) The court held public hearings in mid-January.

Israel denied the allegations, arguing that statements by Israeli government and military officials were taken out of context, and that its military has taken steps to preserve civilian lives. After the hearings, the Israeli government declassified a set of 30 secret orders which it said showed the effort to minimize casualties.

Just under a month after the case was filed, the court issued a series of “provisional measures,” similar to a temporary injunction, ordering Israel to refrain from genocidal acts, to prevent and punish incitement and to allow humanitarian aid into Gaza. The court, which stopped short of demanding that Israel halt its military offensive, also ordered Israel to send a report within one month detailing the measures it had taken to comply with the provisional measures, a deadline that expires Monday.

The other matter dates to early 2023, when the U.N. General Assembly requested that the court issue a nonbinding advisory opinion on the legality of Israel’s occupation of Palestinian territories, following a General Assembly resolution on the same issue.

The hearings involve testimony from more than fifty countries, nearly all of which have been critical of Israel. South Africa garnered significant coverage for its testimony when it again advocated for Palestinian interests. The United States and Britain were the most prominent defenders of Israel, asking the court not to order an end to the occupation and arguing that doing so would place Israel’s security at risk.

Israel is mounting a defense in the genocide case, which is a particularly sensitive topic for the country. “Given the Jewish people’s history, it is not surprising that Israel was among the first states to ratify the Genocide Convention, without reservation,” Tal Becker, an Israeli lawyer, told the court in his opening statement.

However, it has chosen not to participate in the hearings about its occupation, calling the proceedings unwarranted and biased. Israel delivered a letter to the court in which it argued that the focus of the proceedings failed to “recognize Israel’s right and duty to protect its citizens” or to take into account years of agreements with the Palestinians to negotiate “the permanent status of the territory, security arrangements, settlements and borders.”

But Israel also may have decided to avoid the hearings because they place the current government in a political bind at home, Shany said. Many of those legal arguments that might boost Israel’s chances of success in court would not play well to the domestic constituents of Israel’s right-wing government. That may have been the reason that Israel chose not to appear in the hearing on the legality of the occupation of Palestinian territories, he said.

“Internationally, they would have to reaffirm their commitment to a road map that could lead to a two-state solution,” he said. “And they would have to focus attention on the Oslo Accords, etc., while reaffirming the Palestinian right to self-determination. Which they have done on many occasions. These are their legal claims. But that would not play well domestically.”

While the cases are clearly intended to have a political impact, the court is supposed to be less subject to kind of political control typical of other U.N. bodies. Judges are not meant to be representatives of the states they are from, and do not necessarily vote in favor of their home country. For instance, Judge Aharon Barak, the Israeli Holocaust survivor whom Israel selected as an ad hoc judge for the genocide case, voted in favor of two of the provisional measures.

And while Israel has often successfully lobbied the United States to veto U.N. Security Council resolutions that might open the door to sanctions, no such vetoes exist in the International Court of Justice.

But the court has no power to impose sanctions, either. It does not have a police force or the ability to enforce judgments. And the advisory opinion on the occupation will be just that: advisory, imposing no binding orders.

Kate Cronin-Furman, a political science professor at University College London, said that Israel’s past record suggested it might not be particularly sensitive to direct pressure from the court. When the I.C.J. previously ruled that Israel’s conduct in the occupied territories was unlawful, it had only a “marginal effect” on its policies, she said.

That may be less true of the genocide case. The reporting requirement that the court imposed with its provisional measures had created a “monitoring” effect, Shany said, which already seems to be having some political impact on Israel.

Shany pointed to a recent letter by the Israel Defense Forces’ attorney general that warned troops against using excessive force against civilians, looting, and other violations of the law, as an example of such political effects. The letter said that such acts cause Israel and its military “strategic damage in the international arena, the seriousness of which is difficult to overstate.”

Cronin-Furman said that the court proceedings could also have a powerful indirect effect if it shifts public opinion or policy among the allies that Israel relies on for support, including the United States.

“Other countries that have historically supported Israel will be more sensitive to the I.C.J. rulings,” she said. “If international public opinion coalesces around a consensus that Israel’s conduct is beyond the pale, those governments may publicly reduce or withdraw their support and/or privately exert pressure on the Israeli government, all of which is much more likely to shape Israel’s incentives than the direct impact of an I.C.J. ruling.”

The provisional measures issued in January have not yet had that effect on the United States, which last Tuesday vetoed a U.N. Security Council measure calling for an immediate cease-fire in the Gaza Strip. It was the sole vote against the measure. However, the United States is circulating its own resolution that would call for a temporary cease-fire “as soon as practicable,” the first time it has used the term “cease-fire” since the current conflict began, and would also bar Israel from carrying out an attack in Rafah under current conditions there.

Legal experts have cautiously welcomed the new attention on the court. “It should be an aspiration of the international community, all states, that politically charged questions with immensely high moral stakes are deliberated and evaluated by an impartial legal body,” said Janina Dill, an Oxford University professor and the co-director of the Oxford Institute for Ethics, Law, and Armed Conflict. “This is how the rule of law works, this is how the international legal order should work.”

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