Tomer Rayfer

ICJ Hearing: an effort to subjugate Israel internationally?

For the first time in its history, Israel is facing accusations of committing genocide and violating international law, considering its actions as part of the “Iron Swords” war, and following South Africa’s admission to the court at the end of 2023.

The public hearing, which was held on 11-12 January 2024 in the International Court of Justice (ICJ), and the subsequent January 26 decision hold legal and political questions about Israel’s future position during the war in the short-term, but even more in the long-term in its impact on the bargaining position regarding a hostage release deal. The motives behind this procedure do not involve establishing a robust legal foundation or ensuring justice; instead, they represent an additional attempt to subjugate Israel in the international arena. Most importantly, the main beneficiary of this hearing won’t be the Palestinians, but rather only Hamas.


The consequences – Why would Israel have encountered disadvantages in most alternative scenarios?

Examining the reality both on a factual and legal level raises significant doubt that Israel is indeed violating the treaty and committing genocide. The legal debate in The Hague is more of a cynical misuse of legal tools to defeat Israel in the battle than a procedure in the name of justice. The United Nations has never been the unbiased organization we wish it to be. For instance, the Secretary-General of the United Nations, Antonio Guterres, announced the activation of Article 99 of the UN Charter in December 2023 – for the first time since 1989. This article states that “the Secretary-General can bring to the attention of the Security Council any issue that in his view threatens peace and security in the world.” The interesting question is why this article was not activated in the cases of the Syrian civil war or the genocide in Darfur.

The reality that the ICJis the main judicial body of the United Nations turns the whole discussion into a rigged political game, as almost any other possible outcome than the selected one could only strengthen Hamas at the expense of Israel.

Lawyers Galit Raguan, left, and Omri Sender, right, both spoke Friday in Israel’s defense at the international court.

(Hollandse Hoogte/Shutterstock )

First, it’s important to distinguish between the mere assertion that Israel is committing genocide and the acceptance of South Africa’s requests for an interim order. Issuance of an interim order does not necessitate a positive determination by the court that Israel is indeed responsible for genocide. It is sufficient for the court to be convinced of the reasonable feasibility of South Africa’s claims and that the requested remedies are urgently required to protect the rights on which they are based until the final decision of the case. Hence, the probability of an outright dismissal of the claim without any relief was low. However, The ICJ preferred accusatory rhetoric against Israel activities in Gaza over a practical ruling, which significantly diminishes Israel’s leverage for future negotiations in the hostage deal.

Furthermore, it is assumed that the tribunal granted unilateral relief and will not provide a humanitarian response to the Israeli abductees following the laws of war. In other words, even now, the introduction of aid and a visit by the Red Cross to the abductees is unenforceable.  As a terrorist organization, sanctions by international law cannot be applied to Hamas, which controls the strip and does not follow the court’s instructions. A similar example of the lack of commitment by terrorist organizations to agreements and/or instructions is the gas agreement signed between Israel and Lebanon. Allegedly, Israel gave up a natural resource spread over about 860 square kilometers by shifting its border. Did this contribute to promoting peace and security? Today, Hezbollah actively participates in fighting against Israel and has claimed several innocent victims.

As far as Israel is concerned, it has no possibility of opposing the tribunal’s decision, no matter how dismal it may be. If it does not follow the tribunal’s instructions, the US will have a very difficult time standing by it, and exercising its veto when the Security Council obliges compliance with the tribunal’s order. If so, it can be concluded that Israel came to the discussion with the chances of continuing the war effort against the Hamas organization stacked against it. Therefore, it is likely that Israel will proceed with even more caution now, not necessarily because of the ICJ’s decision, but rather its unwillingness to put the US in an uncomfortable position.

Nevertheless, the utilization of the trial as a tool to subdue Israel may be a trump card that has not been sufficiently considered. On the face of it, if we examine the situation rationally, from the perspective of the ICJ, issuing an immediate interim order to stop the fighting would prevent harm to those not involved in the fighting on the one hand, but would not constitute a positive decision that Israel is indeed responsible for the genocide on the other. On top of that, it may be the best option from ICJ’s perspective in the sense of the absence of possibilities for the negotiations between Israel and Hamas for the release of hostages. However, the subsequent outcome of ICJ’s actions in this case will not facilitate the path toward a peaceful relationship with the Palestinians; rather, it will encourage Hamas to maintain the so-called resistance pivot directed by Iran – a fact that ICJ apparently understands.

About the Author
The writer is a fourth-year student pursuing a dual degree in Law (LLB) and Business Administration (BA) at Reichman University. The writer holds a comprehensive security background, with approximately eight years of dedicated service as an officer and combatant commander in the IDF. Currently, he is a fellow of the Argov Fellows Program in Leadership and Diplomacy.