Daniel Markind

The IDF Becomes the ICJ’s Chief Enforcer

On Shabbat morning, June 8, 2024, the Israel Defense Forces became the enforcement arm of the International Court of Justice. Five months after ruling in Paragraph 85 of its opinion in the original South Africa case accusing Israel of genocide that, “it is gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release,” the ICJ has not even called for any party to enforce its order. Not even when South Africa hauled Israel again before the ICJ to try to enforce paragraph 86 of that same opinion (which required Israel to refrain from committing acts of genocide), no party demanded to the ICJ that if it was prepared to hear a case seeking enforcement of Paragraph 86 it also should insist on enforcement of Paragraph 85 concerning the hostages.

Enter the IDF. In a daring and bloody daytime read in densely populated Nuseirat in central Gaza, the Israelis liberated four hostages from 256 days of Hamas captivity, including the celebrated Noa Argamani. While 116 Israelis, of which many may be dead, remain imprisoned by Hamas and its terrorist collaborators, the release of these four provides a good start to enforcing the concept of international law.

Given that fact, one might assume the ICJ and the international community would celebrate the enormous IDF achievement. One would be wrong. In a shattering bit of moral absurdity, European Union Foreign Minister Josep Borrell first posted on X the EU excitement upon hearing the news of the rescue, then immediately followed with a post claiming that as the Palestinians claim the hostage rescue killed 247 Palestinians,…”(r)eports from Gaza of another massacre of civilians are appalling. We condemn this in the strongest terms. The bloodbath must end immediately.” Apparently to the EU, the more you disregard international law by hiding hostages among terrorists in dense civilian areas and then fire on the people trying to rescue them, the more you become immune to anyone attempting to rescue them.

It is no surprise to anyone who has watched the ICJ, the EU, the International Criminal Court and other international agencies over the last few decades how uniquely cynically they can act – especially concerning Israel.

As with most international organizations, the ICJ has no individual enforcement mechanism. Instead, it relies on the UN Security Council and the member states. Given international polarization, that enforcement is rarely evident – witness the ICJ’s inability to stop Russian aggression in Ukraine. As nobody (at times, even Israel) seem concerned about insisting on the enforcement of paragraph 85 in the South Africa genocide case, the IDF stepped into the breach.

While indispensable, military force remains only a mechanism to attain political objectives by violent means. It has natural limits. For Israel to truly take advantage of the IDF success on June 8, Israel needs an overall national strategy to do so. That will require, at the least: (1) more effective engagement at the ICJ demanding enforcement of paragraph 85; (2) clear evidence, and effective presentation thereof, of Israel’s following of international law in the prosecution of the Hamas war; and (3) a national conception of the “day after” for Gazza, and indeed relating to all of the Palestinians.

No matter how you conceptualize it, Israel needs to disengage from the Palestinians. There are no good options, as the geography is such as to make Israel’s choices either continuing to lord over millions of Palestinians or dealing with nearly indefensible geographic borders. Still, the current status quo, which involves Israel acting as if it can just ignore the Palestinians, has come to a dead end for both sides. The Palestinians, who celebrated with such triumphalism on October 7, now have almost 40,000 dead, the entire Gaza Strip nearly wrecked and much of the last year being spent without shelter, school or many basic necessities. The Israelis have had a year of war, incessant attacks on two fronts, international isolation and barely-masked internal division.

While the ICJ’s actual reach is limited, and while the IDF enforces the ICJ’s rulings better than anyone else, for Israel to take advantage of the sacrifices of the last year it must make some very hard choices. The current situation remains the road to nowhere.

About the Author
Daniel B, Markind is an attorney based in Philadelphia specializing in real estate, commercial, energy and aviation law. He is the former Chair of the National Legal Committee of the Jewish National Fund of America as well as being a former member of the National Executive Board and the National Chair of the JNF National Future Leadership. He writes frequently on Middle Eastern and energy issues. Mr. Markind lives in the Philadelphia area with his wife and children.
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