At its politically incendiary but legally nuanced hearing Friday, the U.N.’s highest court made one thing clear: Israel’s battle against Hamas will ultimately be judged by international standards for how war must be carried out.
Legal experts say this in itself is worth celebrating: the restoration of the primacy of international humanitarian law in a conflict marked by the most primitive tactics.
Since October 7, when Hamas attacked Israel in a cross-border raid, the war has been accompanied by hostage-taking, killings of innocents, the imposition of a siege and large-scale destruction of civil infrastructure.
Each of these acts, the International Court of Justice said, constituted prima facie evidence justifying the continuation of the trial, placing Israel in the dock for genocide, the gravest of crimes against humanity, while demanding that Hamas releases his hostages unconditionally.
His interim rulings – the final verdict will take years – have left both sides with little moral victory. On the one hand, the court did not ask Israel to stop its campaign against Hamas, tacitly recognizing the dangers the Palestinian militant group still poses, a fact that Prime Minister Benjamin Netanyahu immediately welcomed.
But by agreeing to continue to hear South Africa’s claims that Israel was perpetrating genocide in Gaza, it sent a message to the Jewish state that its actions were being monitored for the gravest crime of nation can commit.
For now, the court’s 17 judges have presented Israel with both legal peril and opportunity, said David Kaye, who was the U.S. State Department’s top legal adviser on the laws of war after the attacks. September 11 terrorists.
Kaye said Israel could use the opportunity to “show the world that it is acting in accordance with international law.”
“For Israel, the Court’s order presents it with a dilemma – and the dilemma is how to make the world understand that it is acting in accordance with international law? he said.
“Any approach that appears to simply repeat what she has already said, or simply provide talking points for the international community, could reinforce the feeling that she is behaving illegally in Gaza. That’s the risk.
The complexities of international humanitarian law, a body of jurisprudence that took shape after the horrors of World War II and the Holocaust, allow Israelis and Palestinians to seek a decision that rises beyond geopolitical divisions, misinformation and prejudice.
“At a very high altitude, after several months of conflict driven by the situation on the ground and by politics, you have your first legal intervention,” said Kaye, now a professor at the University of California-Irvine.
“This is a warning to Israel: however you characterize the actions in Gaza, they raise very serious concerns about its commitment to international legal standards.”
For Palestinians, the case offers a rare opportunity to seek justice under the impartiality of international laws, rather than in Israeli courts that critics say have restricted their lives since 1948.
“This is a binding legal obligation (and) an important reminder that no state is above the law,” said Riyad al-Maliki, the Palestinian foreign minister.
Diana Buttu, a Palestinian lawyer who helped obtain an ICJ opinion in 2004 that the Israeli separation barrier was illegal, said: “This marks the end of the era of Israeli impunity – this decision does not concern not only Israel and the Palestinians, but it forces other states around the world to take action so that Israel does not commit genocide.
“Israel is now in the same category as other states like Myanmar, Rwanda and Yugoslavia that have been credibly accused of genocide. »
While castigating the court for allowing the trial to continue, Israeli leaders indicated they were acquiescing to the court’s demands. Netanyahu and Yoav Gallant, his defense minister, said the Israeli military was seeking to facilitate humanitarian aid to Gaza and that its soldiers were acting professionally.
Human rights groups, international aid agencies including the UN, and Palestinians categorically reject this claim. They highlight the deaths of at least 26,000 people in Gaza, according to Palestinian officials, most of them women and children, and the humanitarian disaster reigning in the enclave.
The court made pointed references to the extent of this suffering, indicating that it would be a central theme of its final decision. He ordered Israel to provide a report within 30 days on how it was limiting harm to Palestinian civilians.
“They effectively reminded the party, Israel, of its obligations to respect the law,” said Yuval Shany, professor of public international law at the Hebrew University of Jerusalem. “Israel would still be able to say, after the order was issued, that it was not requiring it to do anything it is not already claiming to do. »
But in practice, he explained, the decision is problematic because “it keeps the case before the court in a rather active manner, which would effectively require Israel to provide explanations on an ongoing basis for how it is implementing implements its international obligations.
Unlike the International Criminal Court, the ICJ does not have investigative powers and the reports it ordered from Israel will likely be provided to South Africa to challenge.
The ICC, in a separate case dating back to 2015, is investigating allegations of war crimes committed by both Israel and Hamas and the case raises the still remote possibility that Israeli politicians and military leaders will provide evidence to the court or be stopped by the international community. mandates.
The existence of this case, as well as that of the ICJ on genocide, is proof to many Israelis that they will be judged unfairly in any international forum, said Alan Baker, a former Israeli military prosecutor.
Baker added that Palestinian policy is to delegitimize Israel, using “legal warfare” and the UN to damage Israel’s reputation.
“These cases are receiving so much publicity that it is damaging Israel’s image,” he said. “This type of litigation is harmful to Israel. »