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What does the ICJ ruling mean for Israel's Western allies?

What does the ICJ ruling mean for Israel's Western allies?
8 min read
29 January, 2024
Analysis: In terms of global opinion and moral standing there will be costs, but will Washington and European countries change their policy on the Gaza war?

The 26 January ruling at the International Court of Justice (ICJ), frequently referred to as the World Court, marked a milestone in the decades-long Palestinian struggle for dignity and efforts to hold Israel accountable for its violations of international law.

In late 2023, South Africa filed a case at the ICJ, accusing Israel of failing to uphold its commitments under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide amid the war on Gaza.

The World Court did not determine whether or not Israel is guilty of genocide, but the ICJ ruled that South Africa’s claims are plausible.

The ICJ ordered provisional measures for Israel’s government to desist from genocidal acts, hold individuals accountable for past public incitements to genocide while preventing any such incitement in the future, and take swift measures to guarantee that humanitarian assistance is provided to civilians in the besieged Gaza Strip.

Additionally, Israel received orders to preserve all evidence of genocide and send a report to the ICJ within 30 days about all the measures the Israeli government is taking to comply with the ICJ’s provisional measures.

Finding South Africa’s accusations of genocide to be plausible, the ICJ will further investigate. This outcome marks a victory for those who want to see Tel Aviv under greater global pressure to abide by international law as conditions in Gaza worsen by the minute.

The message to Israel is that the international community refuses to be silent as the country continues with its criminal conduct in Gaza, which has killed more than 26,000 Palestinians and displaced 1.8 million people in the besieged enclave since October.

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A major problem, however, is that the ICJ lacks its own enforcement mechanisms. Additionally, Israel always flagrantly disregards international law, including the ICJ’s 2004 ruling about the illegal Israeli occupation in the West Bank. There’s absolutely no reason to expect Tel Aviv to abide by the ICJ in this instance.

Also, unfortunate is the fact that the ICJ did not demand that Israel adhere to a ceasefire. However, many experts on international law assess that a ceasefire would be necessary for Israel to abide by the provisional measures which the World Court ordered. Further, as a consequence of this South African victory at the ICJ, the odds are good that global pressure on Tel Aviv to adhere to a ceasefire will intensify.

Despite this ICJ ruling not giving South Africa and others who are critical of Israel’s war on Gaza all that they wanted, it nonetheless constitutes a “serious call on Israel to take seriously its responsibilities to abide by the genocide convention,” explained John Feffer, the director of Foreign Policy in Focus at the Washington-based Institute for Policy Studies, in an interview with The New Arab.

An important question is what this ICJ ruling could mean for the US and other Western governments that support Israel’s war on Gaza.

In terms of Washington's foreign policy, experts doubt that much will change as a consequence of the ICJ's ruling in South Africa's genocide case. [Getty]

In terms of global opinion, international pressure, and moral standing, there are costs for Washington and European capitals to pay in the aftermath of this ICJ ruling. However, in more practical terms, it is doubtful that Western governments will change their policies vis-à-vis the Israeli war on Gaza.

“Western governments will come under greater public and political pressure to reconsider their unqualified support, and material support in particular, for Israel’s onslaught on the Gaza Strip. It also raises the possibility of legal exposure and individual criminal responsibility,” Mouin Rabbani, a political analyst and co-editor of Jadaliyya, told TNA.

“That said, I do not expect them to change their policies in any substantial way. Western governments have always treated international law as something that only applies to others, and this case will be no different.”

No expected changes in US foreign policy

In terms of Washington’s foreign policy, other experts also doubt that much will change as a consequence of the ICJ’s ruling in this genocide case.

“The United States already declared that the South African case was ‘meritless’ and it is not now going to change its position. Because of this, I doubt that the United States will change its orientation toward the Israel-Palestine issue and will continue to support Israel politically, diplomatically, and militarily,” Dr Imad Harb, the director of Research and Analysis at the Arab Center Washington, DC, told TNA in an interview.

“It will, however, continue to pay lip service to lessening the humanitarian impact and to a Palestinian state, but will not influence the realisation of either.”

Gordon Gray, the former US ambassador to Tunisia, shares the view that Washington’s foreign policy vis-à-vis the Gaza war is highly unlikely to shift because of the ICJ’s ruling.

“I do not expect the initial ICJ ruling will lead the Biden administration to change its policy vis-a-vis how Israel conducts its military operations in Gaza. It will continue to push Prime Minister Netanyahu to limit civilian casualties - and, more broadly, to accept a two-state solution - but it is very unlikely to resort to any coercive measures to achieve these policy goals,” the former American diplomat told TNA.

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The stakes for Europe

European countries lack a unified set of policies toward this war. While some countries in the European Union (EU) have strongly opposed Israel’s gruesome military campaign, with Belgium, for example, going as far as calling for sanctions on Israel, Germany and some Central European nations have joined the US in terms of giving Tel Aviv uncritical support.

As witnessed in the days and weeks leading to this ruling, EU member states were essentially divided into two camps. Support for the ICJ and/or South Africa’s case came from Belgium, Slovenia, and Spain, while Austria, the Czech Republic, Germany, and Hungary were opposed to South Africa filing this case.

However, now that this ruling has been issued, EU members will need to carefully consider their next moves. Whereas Washington has been known to disregard international law and the ICJ in the past, with the Nicaragua v. United States of America case in 1984 being a salient example, the security thinking of policymakers in European capitals has traditionally placed much greater value on international law and UN bodies such as the ICJ.

“The decision will continue to split Europe. But the fact that some key EU states will reject the ICJ’s ruling will profoundly contradict and undermine Europe’s broader security paradigm,” wrote Dr Trita Parsi, the executive vice president of the Quincy Institute for Responsible Statecraft.

Since Israel began waging its war on Gaza in October, the soft power influence of the US and European countries in the Global South has suffered irreversible damage. [Getty]

Patrick Theros, the former US ambassador to Qatar, said in an interview with TNA that London can be expected to do whatever Washington decides while the EU’s 27 members will probably move forward in a divided manner. He believes that “France might try to lead an EU effort to use the ICJ decision to force a limited geographic ceasefire to allow humanitarian aid to enter [Gaza] by sea”.

Perhaps Western capitals will attempt to convince Israel to modify its policies toward Gaza, mainly in terms of easing the blockade and adopting different targeting strategies that reduce civilian deaths, according to Feffer, who said that officials in Washington, London, and elsewhere would likely find these modifications to “undercut the charges of genocide”.

But he does not expect the West to take steps necessary to pressure Tel Aviv into accepting a ceasefire, entering into negotiations with the Palestinians in good faith, or considering a two-state solution.

“The ICJ ruling will be used by the West to persuade Israel to have a ‘kinder and gentler’ war and occupation strategy, not to abandon such a strategy altogether,” commented Feffer.

The West's moral standing

Since Israel began waging its apocalyptic military campaign against Gaza in October, the US and European countries' soft-power influence in the Global South has suffered what is probably irreversible damage.

Although there has always been a realisation that Washington and European capitals have never pushed for consistent enforcement of international law, now more than ever the perception of Western governments being hypocritical with respect to international humanitarian law and the so-called “international rules-based order” is widespread throughout non-Western countries.

“The United States is increasingly isolated in its support of Israel. It rallied the world against Russia's invasion of Ukraine - with mixed success - but has applied a double standard to Israel’s incursion into Gaza. This undermines US moral authority, such that it is, when it comes to policies of human rights and international law,” explained Feffer.

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Now with this matter addressed in the World Court’s 26 January ruling set to go before the UN Security Council, which is the body that can actually enforce ICJ rulings, the US can be expected to veto the resolution in order to shield the Israelis from accountability.

If that is indeed how Washington proceeds, there is no denying that the US will be ever more associated with Israel’s conduct that many governments, human rights organisations, legal experts, and religious leaders label as genocidal.

“American refusal to accommodate itself in some visible way to the ICJ decision will have enormous negative consequences for US interests down the road,” commented Theros.

Giorgio Cafiero is the CEO of Gulf State Analytics.

Follow him on Twitter: @GiorgioCafiero