The provisional orders of the International Court of Justice in South Africa’s application against Israel have reinforced the centrality of international law to the global order. An increasingly brutal invasion of Palestine by Israel, supported by the Global North, had created a sense of despondency about the United Nations, international organisations and the possibility of justice for some of the most disadvantaged people in the world.
Even the United States, in its invasions of Iraq and Afghanistan, had to pay lip service to the need for avoiding civilian casualties. If international law was not observed by the United States and its allies, it was, at the very least, not publicly derided.
Israel, undoubtedly having faced a tragic loss on October 7, chose to take a path that sought to deny international law. Open calls were made, as was noted by the International Court of Justice in its opinion, by high-ranking officials including the President of Israel, blaming the Palestinian people for the October 7 attacks. The logic for such an accusation was that if they were not complicit they would rise up against Hamas. How an oppressed and disempowered population living in constant fear of violence from Israel was supposed to rise up against Israel’s enemies is a question best left to be answered by Israeli polemicists.
Regardless, the one basic principle of law that has been valued and observed across cultures and systems is that individuals are punished for crimes that they have committed. Their families, communities and nations have never been held responsible by association. America, after all, has been able to repair relations with Vietnam, Japan with South Korea and Chine, even Germany with Israel. The fact that the Americans committed war crimes in Vietnam, the Japanese butchered and oppressed the Chinese and Koreans and the Germans committed the holocaust does not, and cannot, mean that the citizens of these countries are to be punished for the crimes committed by their governments and fellow citizens. The unreasonable demand made of the Palestinian people for their continued safety, essentially for them to hold on their lives, is, to put it mildly, horrifying.
The ICJ has, while declining to order a ceasefire, passed the following measures, with Justice Dalveer Bhandari of India, joining in the majority judgment ordering provisional measures. The Court has ordered Israel to ensure that acts of genocide do not take place in the Gaza strip. It has also ordered that Israel must punish incitement to genocide. Further orders include directions to Israel to allow humanitarian aid into Gaza and to protect Palestinians. Measures to safeguard evidence of such crimes have also been ordered.
All these measures, ordered by the International Court of Justice, should act as a moral deterrent to Israel. Enforcement of judgments of the Court have to be done by the UN Security Council, where the US will likely block any action against Israel. As such, while the International Court may have passed a judgment, it is unlikely to be effectively enforced against Israel in the even that Israel chooses to ignore the Court’s order.
The real value of the Court’s order, however, lies not in any corporal enforcement of its judgments but as an important voice in the unbelievable tragedy that is unfolding in Palestine. At a time when the US, the UK, Germany and Canada have sought to either turn a blind eye to the Israeli government’s actions or actively participate in the ongoing genocide. Recognising the Palestinians in Gaza as a protected class of persons will give the Israeli government some pause in its ongoing campaign. It will also surely bolster the large numbers of Israelis who want this war and the slaughter of the Palestinians to end.
It will also support the voices of the moderates in Palestine, and across the world, for that matter, who recognise that the only lasting solution is co-existence on equal terms. This is a small step towards sanity, but a badly needed one. It is also an opportunity for Israel to end this genocidal campaign which seems designed not to protect the Israels who were taken hostage but to further the days of the government of Benjamin Netanyahu. This is an opportunity which everyone must make the most of.
Sarim Naved is a Delhi-based lawyer.
