• Why America’s reaction to South Africa’s case could spell the beginning of the end of the UN
• America’s long history of going against the International Criminal Court
The Hague is the capital of the Netherlands, and within it sit both the ICJ and the ICC. The ICJ is the international court of justice, the highest court in the UN, and its main function is to adjudicate on disputes between nation-states. The ICC, on the other hand, conducts trials and gives judgements on individuals such as world leaders and military personnel. It was on the 29th of December that South Africa, a country that has previously suffered from apartheid and transgression, decided to file a case accusing Israel of ‘genocidal acts’ in its assaults on Gaza. The case officially began on Thursday, starting off with South Africa’s account and position on the matter. The media attention the case received should have been the main headline of the day in the West, as it assumes that a western ally whom the West has been propagating and supporting since its establishment has broken the genocide treaty that was established in 1948 and to whom Israel, South Africa, and the West are parties. Unfortunately, however, it was the opposite; many western mainstream media outlets had chosen to put the story under the bus as a substory or chose not to talk about it at all.
What will the ICJ case do exactly?
The official court hearings in the ICJ case have already begun; however, the main ruling in the South Africa case could take years. Nevertheless, South Africa has made some immediate demands, one of them being for the ICJ to urgently implement ‘provisional measures’ to stop the continuation of war crimes in Gaza. Provisional measures are measures that can be applied even before the main court case begins. It is a legally binding order that parties to the Genocide Convention must adhere to. Although it could take weeks before such an order is given out, it could lead to the ICJ ordering a ceasefire on behalf of the safety of the Palestinian people within Gaza. Will Israel abide? Unfortunately, the ICJ, although the highest UN body, does not have any enforcement capability, and therefore the furthest it can go in changing the situation on the ground is by ordering Israel to stop the aggression or approaching the UN Security Council for a vote. If the latter is what the ICJ pursues to achieve its aim, then it becomes a matter that will be determined among the five veto powers of the UN Security Council: the US, the UK, France, Russia, and China. In this current genocide alone, the US has used its veto power twice to prevent a ceasefire in Gaza from taking place when the majority of the UN security council members had voted in favour.
Even after the enactment of Article 99 for the first time this century by the UN secretary general to call for a ceasefire in Gaza, the US has still not budged on its unwavering support for Israel. However, it must be noted that as the genocide has gone this far, with public opinion changing and the majority of Americans now wanting a permanent ceasefire, it becomes evident that the US will hesitate much more before using their imperialistic tendencies to thwart the calls for a ceasefire using a veto this time around but will still be willing to do so.
So if a veto is used to prevent an ICJ order, does that make the ICJ completely useless?
After South Africa’s announcement of bringing the genocide case against Israel, both the US and Israel have been starkly opposed to the decision. With US secretary of state Anthony Blinken saying, “The U.S. believes South Africa’s genocide submission against Israel distracts the world from important efforts for peace and security,” And Israel has suggested that South Africa is now a legal arm for Hamas. The rhetoric has only been increasing as the court case has progressed, with multiple more statements released by both the US and Israel regarding the case. This shows that there is undoubtedly a fear amongst the US and Israel that the narrative of self-defence and victimhood that they have been trying to propagate for decades may become even more ruptured than it already is if the ICJ rules in favour of South Africa’s case. It could also mean that America’s already tarnished image on the international stage as the leader of the free world will become even more tainted. A Harris poll in December has shown that support for Hamas over Israel amongst 18- to 24-year-olds has reached 50%, with 51% of 18- to 24-year-olds believing Israel should be ended and handed over to Hamas. This was a stark increase from October and quite literally demonstrates the damage the Israeli narrative of victimhood has suffered throughout the period of this genocide. A court case showing Israel is committing genocide, regardless of whether it leads to little to no results on the ground, will only add salt to the wound regarding Israel’s image on a global level.
ICJ vs. ICC and America’s dark recent history to protect itself
As mentioned in the introduction, the ICJ is responsible for solving international disputes, while the ICC persecutes individuals. The ICJ is the highest court of the UN, and the ICC (international criminal court) is an independent court that, along with the ICJ, sits in the Hague (capital of the Netherlands). There are 123 member countries of the ICC, and although it is true that the US and Israel do not recognise the ICC, the very fact that Afghanistan and Palestine are members of the ICC gives it jurisdiction over American soldiers who fought in Afghanistan and Israeli soldiers who fought in Palestinian territory. This means the ICC can legally carry out investigations against Israel just as it carried out investigations against Russia in its war against Ukraine. In March last year, the ICC issued an arrest warrant for Vladamir Putin, even though Russia was not a member of the ICC. Although the ICC does not have a police force and therefore runs on member state compliance, it was this arrest warrant against Putin that prevented Vladamir Putin from going to the BRICs summit to South Africa in July 2023 out of fear of the risk of being arrested.
During the beginning phase of the war on terror in 2001, President George W. Bush signed the US Servicemembers Protection Act in 2002. The law authorizes the use of military force to liberate any American citizen or citizen of a U.S.-allied country being held by the court, which is located in The Hague. In other words, it gives America the legal right, per its own set of laws, to invade the Hague to break out American citizens regardless of whether they’ve committed the most heinous of war crimes or not. To just imagine, the US threatening the invasion of the capital of a NATO country in order to protect its image is astonishing but a dark reality. Some may perceive that this was a one-off situation during the early days of the war on terror, when American desperation to avenge its fallen citizens was at its peak. However, recent history under Donald Trump’s premiership has shown that this was not just a one-off event to protect America’s military and global image. On September 2, 2020, the Trump administration imposed sanctions on ICC prosecutor Fatou Bensouda and another senior prosecution official. These sanctions included the blocking of bank accounts and US-held property. On top of this Secretary of State at the time, Mike Pompeo had said that the US had restricted the issuance of visas for certain ‘unnamed individuals’ who were involved in the ‘ICC’s efforts to investigate US personnel’. Earlier, before the sanctions were implemented, the Trump administration had previously threatened to thwart ICC investigations in Palestine and Afghanistan. However, after its demands were not met, they resorted to forcing their way out by means of personal torment through sanctions. All in all, this goes to show that America will stop at nothing to protect their soldiers from persecution, as well as the international image that goes along with doing it.
Although it is not known if the US will be as supportive for Israel as it has been for its own troops, South Africa’s case at the ICJ is not calling for the persecution of Israel or Israeli troops, but rather an end to the hostilities and labelling Israel’s actions for what they are: a genocide. If a provisional measure is given out for a ceasefire by the ICJ, it will mean that the US will likely use a veto to prevent any real change from happening, and therefore it will be willing to go against a ruling formulated by 15 judges across the world. This will likely be the biggest humiliation the US and Israel will face on the international stage since the beginning of this genocide. Will the US resort to dirty measures to protect Israel’s image? Seeing as most of the international community is now focused on the ICJ hearing, unlike the previous hearings of the past, it’s unlikely that the US will resort to these bully tactics to prevent public outcry.
To give the connotation that the ICJ or ICC is completely useless is an overstatement. Undoubtedly, the power is limited, but its symbolic power is strong enough to make even the Americans buckle as recent history has shown. Israel’s public image is something Israel needs in continuing in their colonialist ambitions, and if it’s ruptured even more by the ICJ when the world is fixated on Gaza, it will be bad news for Israel.
