Tel Aviv has done a manifestly inadequate job of showing to the world how its policies and practices reflect good-faith implementation of the World Court’s decision, experts say.
A month after the International Court of Justice (ICJ) ordered Israel to show restraint in its military operation in Gaza and prevent any action that may be characterized as genocide, not much has changed on the ground in the besieged Palestinian enclave.
Despite the ICJ ruling of January 26, 2024, Israel has continued to intensify its military assault on Gaza as it threatens to send troops into Rafah, a city along the territory’s southern border with Egypt, where thousands of Gazans have fled to escape fighting elsewhere.
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Gaza is running out of food, with aid agencies unable to get to the area because of the bombing and Israeli protesters blocking aid trucks trying to get through, according to a UNRWA spokesperson.
“At the Karen Abu Salem crossing (Kerem Shalom), Israeli protesters stood in the way to stop trucks, making the flow of aid very unpredictable,” Jonathan Fowler, an UNRWA spokesperson, told Al Arabiya English.
He said the crossing was closed from February 8 to 10 and again from February 15 to 17. According to Fowler, UNRWA and other UN entities have not been able to pick up vital humanitarian supplies “due to safety concerns, including the looting or storming of convoys by desperate, hungry people who wait for food aid sometimes for days.”
Desperate Gazans have resorted to eating scavenged scraps of rotten corn animal fodder and even leaves. In refugee camps, children hold out plastic containers and battered cooking pots for whatever little food is available.
The World Court’s ruling in January was perceived by the international community to slow down Israel’s military assault on Gaza. However, a month later, it seems to have had no impact on Israel, who continues to inflict starvation and airstrikes on the Gaza Strip, which have taken a more brutal form with no immediate signs of slowing down.
Is Israel in breach of the ICJ’s ruling?
Based on daily reports coming out of Gaza, it is difficult to state with any confidence that Israel has, in fact, taken effective measures to ensure that its forces are not engaged in conduct that may be characterized by the ICJ as genocidal, according to Michael Becker, a former legal officer at the ICJ.
“The Court’s order imposed a clear obligation upon Israel to facilitate the effective delivery of humanitarian aid into Gaza. However, based on reports from UN officials and other sources that point to an ever-worsening humanitarian situation, including some reports that Israeli officials have actively blocked the delivery of aid shipments, it does not seem that Israel has done enough to comply with this part of the Court’s order,” Becker told Al Arabiya English.
Israel may view this situation very differently and take the position that its conduct remains within the bounds of the ICJ’s decision, but if that is the case, he said, it has done an “inadequate job” of showing it to the Court, as it looks at the full case brought by South Africa, which could take several years.
“Israel may also feel that it has taken positive steps since January 26, 2024, to alleviate the situation and faces an impossible task because of the unlawful tactics used by Hamas,” Becker said. “But if that is the case, Israel has done a manifestly inadequate job of showing to the world how its policies and practices reflect good faith implementation of the Court’s decision.”
Providing supplies to people across the Gaza Strip “is extremely difficult,” according to Fowler, who pointed out that the last time UNRWA was able to deliver food to the north was on January 23, 2024. He said the Rafah crossing from Egypt has been closed intermittently, and the flow of supplies has been low on the days that the border has been open.
Legal consequences for Israel
If Israel continues to contravene the ICJ’s ruling, its actions will, in effect, generate more evidence for South Africa to rely upon when seeking to establish genocidal intent as the court case moves forward, according to Becker.
He explained that at this stage, Israel faces short-term repercussions, largely in the “political realm rather than the legal realm,” adding that as the situation in Gaza worsens, Israel’s allies, including the US, will face “ever greater pressure to exert their influence” to bring an end to the war.
US President Joe Biden and his administration are facing growing pressure to back a ceasefire in Gaza, with fresh criticism mounting after the US vetoed another United Nations Security Council resolution calling for Israel to implement one.
In some cases, there have been litigations aimed at blocking the sale or transfer of weapons to Israel as a result of it deviating from the Court’s orders and international law.
Several nations have hit the pause button on weapons exports to Israel after the ICJ in January ruled that Israel could be committing genocide, including Italy, the Netherlands, Spain, Itochu weapons manufacturers of Japan, and a local government of Belgium’s Walloon region that announced it had suspended licenses to export munitions to Israel.
“The more Israel’s conduct appears to deviate from the court’s order or otherwise contravenes international law, the greater the likelihood of success for those types of lawsuits,” Becker added.
Legal duties of Israel’s allies under international law
According to international law and the Geneva Convention, each country has an obligation to do what it reasonably can to deter those suspected of engaging in genocidal activity.
In a previous case, Becker said, the ICJ had explained that each state’s duty to prevent genocide under the Convention arises at the instant that the state learns of the existence of a serious risk that genocide will be committed.
“Because the ICJ found in its January 2024 order that South Africa’s claims under the genocide convention are at least plausible, this arguably provides the trigger to activate the duty to prevent [genocide],” Becker told Al Arabiya English.
He, however, added the scope of that duty to prevent genocide “will vary from state to state” because it depends on each country’s capacity to influence Israel “in a meaningful way through lawful measures.”
According to legal experts, countries supporting Israel, namely its key ally, the United States, Germany, and the UK, continue to supply military equipment and aid to Israel, despite reports on the risk of genocide and increasing protests.
Such actions might constitute these countries as complicit in a plausible genocide in Gaza. Experts have argued that the US, in particular, has sufficient influence over Israel and that its actions and inaction violate the duty to prevent genocide.
However, the US has a reservation to the Genocide Convention, upheld by the ICJ, that mandates that Washington must give its consent, to be brought before the ICJ, on any claims under the Convention – though it is unlikely to give such consent, according to the American think tank, The Atlantic Council.
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