MALAIKA MAHLATSI: Why ICJ ruling is a victory despite ceasefire not being ordered

On the afternoon of 26 January 2024, a day that will be remembered in history, the International Court of Justice (ICJ) handed down its ruling on the South Africa vs Israel case. Earlier in the month, South Africa brought the case before the ICJ, arguing that the state of Israel is engaging in genocidal acts in Palestine. The ICJ, in its ruling on the matter, sided with South Africa, contending that there is a prima facie case of genocide against Israel. The court further ordered that Israel take all measures within its powers to prevent acts of genocide against Palestinians in Gaza.

South Africa had sought to have the court order a ceasefire – a critical intervention in a war that has claimed the lives of over 26,000 Palestinians (and counting), and where almost 2 million Palestinians have been displaced. And although this request was not granted, the significance of the ruling must not be understated, especially given that it was supported by an overwhelming majority of the judges of the ICJ.

The ICJ does not have the power to enforce the order. As such, the next step in this matter is the United Nations Security Council (UNSC), which has the power to enforce the judgment. Countries within the UNSC must now act to prevent genocide by Israel and also ensure that they too are not in violation of the Genocide Convention.

In the weeks leading up to the verdict, officials from the Israeli government had repeatedly stated that the country would not abide by the order. The Israeli Prime Minister, Benjamin Netanyahu, posted on his official X account that Israel would not be swayed by the decision of the ICJ. Netanyahu asserted that: “Nobody will stop us – not The Hague, not the axis of evil and not anybody else”. The defiance of Netanyahu and his government is likely to continue following the order handed down by the ICJ.

It wouldn’t be the first time that a country ignores an order from the world court. Just months after the Russo-Ukrainian war, the same court ordered Russia to suspend military operations in Ukraine. The order was ignored by Russia. Israel is likely to go the same route – but the situation is very different for its allies. Western allies of Israel, specifically the United States, the United Kingdom, Canada and the European Union, have not only been expressing support for Israel through public statements, including dismissing South Africa’s case as meritless and without any basis in fact, but have also been providing financial and military assistance to Israel’s war on Palestine.

With the ICJ having established a prima facie case of genocide against Israel, its allies are now bound by the Genocide Convention, which criminalises the complicity of the commission of genocide. Member states that are signatories to the genocide are not only prohibited from engaging in genocide, but they are obligated to pursue the enforcement of this prohibition. Should they continue to fund Israel’s war efforts, its Western allies will be complicit in the commission of genocide. This complicity lays the foundation for a criminal case to be brought against some of these Western allies, likely before the International Criminal Court (ICC). This is not an impossibility in light of South Africa’s commitment to the pursuit of justice for Palestine.

The ICC investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression. While Israel and the USA are not signatories to the Rome Statute and thus not members of the ICC, the rest of Israel’s allies are. This means that they are liable for prosecution by the ICC as accomplices to genocide in line with the law of complicity in international criminal law.

The concept of complicity is recognised in the Convention on the Prevention and Punishment of the Crime of Genocide; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the International Convention on the Suppression and Punishment of the Crime of Apartheid. The International Law Commission’s draft Code of Crimes asserts that individual criminal liability would be incurred, in the case of crimes against humanity, genocide and war crimes, by a person who "knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime, including providing the means for its commission". This is in line with the Rome Statute. The concept of aiding and abetting was initially defined in the Nuremberg Tribunal and later, the Rwanda Tribunal. Aiding means giving assistance to someone while abetting involves facilitating the commission of an act by being sympathetic thereto. Individuals can be charged of aiding and abetting genocide and war crimes and are open to prosecution regardless of having sovereign impunity.

While Israel may escape justice at the ICC, this will not be the case for members of the European Union who aid and abet the country. In line with the law of complicity, they can be charged. It is important to note that most of those charged and convicted in the Nuremberg trials were held responsible not as principals but as accomplices. This was also the case with the International Criminal Tribunal for the former Yugoslavia. It is unlikely that the European Union, which has a history of supporting both the ICJ and the ICC, would want to continue aiding and abetting Israel at its own expense.

Even for the USA, that is not a signatory to the Rome Statute, the order given by the ICJ is not easy to ignore, particularly for domestic reasons. There is a growing increase in the number of Americans who are opposed not only to the war in Palestine, but also to the continued funding of Israel by their government. In a Reuters/Ipsos poll in November 2023, the majority of respondents, at 39%, argued that the US should be a neutral mediator in the war. About 32% said the country should support Israel, while 15% said the country shouldn’t be involved at all. What is important about this poll is that the number of those who said the US must support Israel dropped by almost 10%, from 41% in the same poll conducted in the previous month.

Furthermore, just a few weeks ago, the Democratic-controlled Senate failed to advance President Joe Biden over US$105 billion spending package, most of which was consisted of military aid for Israel and Ukraine. While the politics around this are complex, involving the Republicans’ demand for certain concessions on domestic migration issues, it is significant that the context in which the package failed to pass is waning support for Israel among American citizens. As the USA prepares for elections, with primaries already underway, Biden can ill-afford to alienate the many Democrats who are calling for a ceasefire in Palestine. And now, with the ICJ ruling, the cost of continuing to support Israel is far greater to Biden than the benefit.

But it is a great cost for all Israel’s allies. The UK, Canada and key European Union members including Germany, France, Denmark and the Netherlands, who have all been supporting Israel, are now faced with a crisis of legitimacy. These countries supported the case of The Gambia against Myanmar in the same ICJ – a case almost identical to the South African case against Israel. In that case, the ICJ issued an order that reads almost exactly the same as that on Israel – right down to the provisions granted. It would be incredibly difficult for the UK and the EU to disregard the ICJ ruling on Israel without jeopardising their standing on the Myanmar case and any other future cases. At a time when the power dynamics between the global North and the global South are shifting, and where geopolitical power is realigning, the EU and the UK can ill-afford alienation. It would be mindless for these countries to stand by Israel’s destruction.

As the eyes of the world turn to the Security Council, we must applaud the South African government for taking this first step toward bringing an end to the senseless war in Palestine. And we must not rest until justice is done, for injustice anywhere is a threat to justice everywhere.