South Africa vs. Israel at the ICJ

Don't get your hopes up.

The Peace Palace in The Hague, where the ICJ sits.

I don’t know why everyone is making such a brouhaha over the South African case at the International Court of Justice (ICJ), in which the Israels are accused of committing genocide against the Palestinians.

The reason I don’t know what all the fuss is about, is because, usually, in a legal case, we don’t know what the judges will rule, and therefore what the consequences will be. In this case however, we know what the consequences will be, regardless of what the judges rule. In other words, the Court’s ruling will be irrelevant. It will have absolutely no effect on the Palestinians in Gaza, as the Israelis will just ignore the Court’s ruling if it goes against them, and will simply continue their genocide against the Palestinians. Should the esteemed judges of the Court, somehow find it in their intellect to rule in favour of Israel, that, of course, would legitimize Israel’s genocidal war, in which case, they will also continue their war in Gaza. So I repeat, the outcome of the ICJ case is irrelevant to the Palestinians.

Why do I believe this is the case? Well, simply because exactly 20 years ago, in December 2003, not just one country, but the entire General Assembly of the UN brought a case to the ICJ, against the Israelis, over the wall they had built to keep the Palestinians out. The ICJ ruled HEAVILY against the Israeli wall. Despite the very favourable ruling for the Palestinians, nothing changed, nothing improved for them. In fact, the Israelis have since, expanded the wall. See: https://www.icj-cij.org/case/131

One needs to understand that the ICJ is a toothless organisation, that cannot enforce any outcome of its rulings. That’s the problem. Unlike in a “normal” court case - whether civil or criminal - no one will be held accountable, no one will be sent to prison. An ICJ ruling is merely symbolic, and can be used by countries, diplomatically and/or politically.

The ICJ is one of the five organs of the United Nations, the other four being the General Assembly, the Security Council, the Economic and Social Council and the Secretariat. All nations that are members of the UN, are automatically members of the five UN organs. All nations of the world, are members of the UN. The Palestinians, however, do not have a nation, and are therefore not members of any of the UN organs. They have “observer status” at the UN, which means they can listen, talk, but not vote, nor bring a case to the ICJ’s attention. Which is why other nations do so on behalf of the Palestinians.

The ICJ is comprised of 15 judges, each having a different nationality. The 15 current nationalities held by the Court’s judges are: the USA, Russia, China, Germany, France, Slovakia, Australia, Japan, Brazil, India, Uganda, Ethiopia, Morocco, Lebanon, and Jamaica. Interestingly, the President of the Court, is Justice Joan Donoghue, the American judge, and the Vice-President is, Justice Kirill Gevorgian, the Russian judge. For more info on the 15 judges, go to: https://www.icj-cij.org/current-members

For the layman, the ICJ is often confused with the ICC, the International Criminal Court. I assume that is because both are located in the same city, namely The Hague, in The Netherlands, and both are international courts with similar names and similar abbreviations.

The difference between the two courts is that the ICJ is a United Nations entity, which means that every country in the world can “use” the court, whereas the ICC is an independent court, set up to prosecute individuals for crimes against humanity. The ICC set up its own jurisdiction, so countries have to agree to that self-imposed jurisdiction to “use” the court. In legal terms, it means a country has to ratify the Treaty of Rome, which came into effect in July 2002. Neither the USA nor Russia have ratified the Treaty and are therefore not “members” of the ICC. In fact, in August 2002, Dubya, the US President at the time, signed into law the American Servicemembers Protection Act (ASPA), fondly known as the “The Hague Invasion Act”. By passing this law, the Americans gave themselves the right to invade the city of The Hague, should any American citizen, including soldiers (servicemen), be brought to trial at the court. For more info, go to: https://www.globalissues.org/article/490/united-states-and-the-icc#USthreatensmilitaryforceifpersonnelheldattheHague

Another distinction between the ICJ and the ICC, is that at the ICC, individuals are brought to trial and are sent to prison if found guilty, whereas cases at the ICJ are not against individuals, but between countries. The ruling of the ICC has consequences for the individual; the ruling of the ICJ is merely a legal opinion, it is not binding. In other words, the country being accused in the case, is not bound to take any legal, political, financial, or military action as a result of the ruling. It can ignore the ruling, as Israel did on the Court’s 2004 ruling on the wall. The ICJ is not a supreme court of any kind, even though its rulings are final, with no possibility of appeal. It is up to the country being accused, to apply the decisions of the Court. Most countries do honour their obligations under the ICJ’s ruling, and comply. If a country does not comply, the Security Council, with five veto powers, can be asked to make a decision on the matter. Which is why Israel has been able to ignore the ICJ’s ruling of 2004 on the wall, and which is why it will ignore the current case against it, brought by South Africa. They have the veto power of the Uncle Sam, safe in their back pocket.

UPDATE TO THE ABOVE ARTICLE, 15 January, 2024

It seems there are more options available than what I wrote above, four days ago. Instead of writing about them, I will simply share this video clip, where Franis Boyle, renowned international lawyer, explains it all very well.

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