Eye on the Middle East | ICJ interim order is a signal for peace in the region - Hindustan Times

Eye on the Middle East | ICJ interim order is a signal for Israel to find a resolution, bring peace in the region

Jan 28, 2024 01:18 PM IST

A political solution to the Israel-Palestine question shall act as a cushion to absorb any International Court of Justice's verdict on genocide in the future

On January 26, the International Court of Justice (ICJ) delivered its order indicating provisional measures, in South Africa’s case against Israel. South Africa brought a case (also endorsed by the Arab League) against Israel to the ICJ in late December, alleging breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

Judges at the International Court of Justice (ICJ) rule on emergency measures against Israel following accusations by South Africa that the Israeli military operation in Gaza is a state-led genocide, in The Hague, Netherlands, January 26, 2024.(REUTERS/Piroschka van de Wouw) PREMIUM
Judges at the International Court of Justice (ICJ) rule on emergency measures against Israel following accusations by South Africa that the Israeli military operation in Gaza is a state-led genocide, in The Hague, Netherlands, January 26, 2024.(REUTERS/Piroschka van de Wouw)

In its interim order, the ICJ directed Israel to take “all measures possible” to prevent breaches of Article II of the Genocide Convention, prevent and punish “the direct and public incitement to commit genocide”, allow humanitarian assistance into Gaza, and submit a report to the court on the measures taken within a month.

The court reiterated that provisional measures did not prejudice a future decision on the merits of the case. While this is standard in any contentious case, it assumes relevance for the prevention of genocide — a peremptory norm in international law from which no derogation is permitted. Indeed, Judge Dalveer Bhandari in a separate declaration further added that an inference ofdolus specialis(special intent) for genocide by Israel could be drawn at a later stage, and that the current measures are triggered only by the plausibility of intent.

Israel and the Court’s order

Even as it denounced the recent ICJ verdict, Israel has long engaged in a fervent diplomatic effort to garner international support for itself since its war in Gaza began, further proven by its decision to participate in current ICJ proceedings. Notwithstanding the lack of effective enforcement mechanisms, the ICJ’s rulings have binding effects on the parties involved. This puts Israel’s methods of war-fighting under enhanced scrutiny and effectively increases the need for a ceasefire — South Africa maintains that the Court’s call for allowing humanitarian aid cannot be fulfilled without it. The net political effect of this legal development then is greater incentive for Israel to wind down its attack if not end it entirely.

Israel has evidently already shifted the articulation of its objectives, from the need to “destroy Hamas completely” to the need to eject Hamas from Gaza. The shift indicates that should the remaining Hamas leaders leave Gaza, it would credibly fulfil Israel’s aims at a lower threshold, making it easier for Israel to exit the war and declare its objectives met.

Israel and Palestine at ICJ previously

ICJ jurisprudence pertaining to Israel and Palestine has not tilted in Israel’s favour in the past too — in 2004, the court (in a UN invoked advisory opinion) declared that Israel’s ‘separation barrier’ in the West Bank was violative of international law. Further, a corpus of UN resolutions have consistently declared Israel’s occupation of Palestine to be illegal. Genocide, however, is a distinct matter entirely — more politically loaded for a state that was founded by a group that itself was victim of genocide in World War 2.

Israel then is paradoxically committed both to its current war aims in Gaza, as well as to an international trial of genocide which it cannot ignore in the context of its own history and the international narrative built around it. This makes the court’s ruling, even if interim, both legally and politically significant for both Israel and its Middle Eastern neighbours.

What happens in the Middle East now?

The immediate reactions to the court’s order from across the Arab states (and the Arab League), Turkey, and Iran were interpreted to be categorically against Israel — an expected reaction given that the League officially endorsed South Africa’s case. Led by Saudi Arabia, these states have long been engaged in a determined diplomatic effort to impose a ceasefire (with Egypt and Qatar acting as direct mediators between Israel and Hamas). The puzzle, however, pertains to the long term. The October 7, 2023 attacks by Hamas in Israel upended a slow but steady drift towards larger Arab-Israeli peace.

Saudi Arabia recently asserted that it shall not normalise ties with Israel without agreement on a future Palestinian state— the language used is still one of potential normalisation, indicative of new Arab strategic priorities.

How peace in the region is possible

The ICJ usually takes long to deliver a merits judgement on a case concerning alleged genocide — the Croatia vs Serbia case was brought to the Court in 1999, the final order on merits was delivered in 2015, after 16 years. The ICJ is also considering Gambia’s case against Myanmar on its merits — a case where multiple UN fact-finding missions have already submitted evidence, a feature missing from the South Africa-Israel case thus far.

The ICJ verdict on Israel, when it comes, will be a fresh factor to reconcile with in the future. This increases the urgency to not only move beyond the present Gaza conflict, but seek a resolution of the larger political solution to the Israel-Palestine issue now. This explains the increasing willingness for Middle Eastern states to demand a broader political resolution and the establishment of a sovereign Palestinian state, even as they push for a ceasefire. Saudi Arabia’s further assertion that it shall not help rebuild Gaza without a credible pathway to a Palestinian state, seeks to increase incentives for Israel to negotiate terms on the core issue defining Arab-Israel politics for decades, one seemingly side-stepped in earlier normalisation efforts.

A political solution to the larger Israel-Palestine question then, with efforts at reconciliation and reconstruction, shall act as a cushion for absorbing any ICJ judgement on genocide, whether in favour of Israel or against.

Bashir Ali Abbas is a Research Associate at the Council for Strategic and Defense Research, New Delhi, and a South Asia Visiting Fellow at the Stimson Center, Washington DC. In Eye on the Middle East, Bashir writes about the Middle East/West Asia region, and its larger implications for India. Views expressed are strictly his own.

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