ICJ vs Israel: strategies to confront non-compliance

In the ongoing devastating Israel-Palestine conflict, South Africa took the decisive action of filing a case at the International Court of Justice (ICJ) accusing Israel of engaging in “genocidal acts” in Gaza. The ICJ has issued a series of escalating orders, demanding that Israel cease any actions that could be classified as genocidal, facilitate the unhindered delivery of humanitarian aid and permit investigations into alleged war crimes. Despite the binding nature of these rulings, the ICJ lacks direct enforcement mechanisms and relies on voluntary compliance.

Israel’s persistent non-compliance highlights its disregard for the Court’s authority, complicating international efforts to address the humanitarian crisis in Gaza and undermining the credibility of international judicial institutions. However, there are various measures that can be taken by the world community in case of continuous defiance by Israel.

Article 94(2) of the UN Charter grants the UNSC authority to ensure the enforcement of ICJ rulings. In instances of non-compliance, the affected party may refer the matter to the UNSC. Should Israel persist in its refusal to adhere to ICJ measures, South Africa retains the option to elevate the matter to the UNSC. To do this, South Africa would need to provide evidence of Israel’s failure to adhere to ICJ directives and request the Council’s intervention to enforce the judgment.

Upon reviewing the situation, the UNSC may employ various measures to pressure Israel into compliance. These measures may include issuing formal recommendations urging Israel to comply with ICJ rulings, engaging in diplomatic dialogue, or imposing economic sanctions targeting Israel’s commercial interests. In severe cases where non-compliance threatens international peace and security, the UNSC may authorise coercive actions, such as comprehensive sanctions, to compel Israel to adhere to the ICJ’s judgment. However, it is important to acknowledge the limitations of the UNSC’s enforcement capabilities, particularly due to the veto power held by P5, with historical indications suggesting that the US would be inclined to exercise this power to block any resolutions.

Additionally, the international community can also invoke universal jurisdiction. Pursuant to this principle every state is obligated to prosecute and punish perpetrators of war crimes, crimes against humanity, genocide and torture irrespective of the jurisdiction, territory and citizenship. Shifting the focus towards framing the case as crimes against humanity rather than genocide can enhance accountability.

Notably, establishing crimes against humanity involves a more comprehensive and systematic approach, as articulated in Article 7(1) of the Rome Statute, which requires demonstrating a physical, contextual and mental element. Consequently, numerous countries could bring cases against Israeli military personnel for committing crimes against humanity. The process would commence with the prosecuting state evaluating whether the alleged crimes fall within the scope of its universal jurisdiction laws, followed by an investigation, evidence collection and case preparation. Upon accumulating sufficient evidence, the state may issue arrest warrants and proceed with domestic prosecution. Collaboration with other entities and international bodies may be pursued, and pertinent legal frameworks, including treaties and customary international law, may be invoked to fortify jurisdictional claims.

Engaging in an open dialogue through OIC could also play a constructive role. The OIC, as a multilateral forum composed of predominantly Muslim-majority countries, provides a platform for member states to collectively address issues affecting the Islamic world, including the Israeli-Palestinian conflict. Through diplomatic channels within the OIC, member states could coordinate efforts to exert diplomatic pressure on Israel to comply with the ICJ’s rulings. This could involve issuing joint statements or resolutions condemning Israel’s non-compliance and calling for immediate cessation of military operations. Additionally, the OIC could facilitate mediation efforts by appointing a neutral mediator or envoy to engage in dialogue with Israeli authorities.