What if interim ruling goes against Israel on January 26

The International Court of Justice (ICJ) is poised to deliver a highly anticipated verdict on January 26, responding to South Africa’s request for an interim ruling against Israel.

South Africa brought the case to the court, accusing Israel of “grave violence and genocidal acts” in Gaza and seeking an immediate ceasefire. Israel rebuffed the allegations, characterising them as a “partial and deeply flawed picture.”

After hearing the arguments on January 11 and 12 at The Hague, the ICJ is now on the verge of delivering its ruling.

“The ICJ will currently only look at ‘provisional measures of protection,’ which is the equivalent of the term’ interim orders’ used in Indian courts,” explained Pratik Bakshi, co-founder at World Law Forum.

Bakshi clarified that these measures are designed to prevent ongoing conflicts or disputes from escalating further. “The ICJ will not be deciding on whether Israel is guilty of genocide, and it may be years before the court comes to a conclusion on this point,” he noted.

Legal experts suggest that if the ICJ issues provisional measure orders against Israel, they will be legally binding and final. However, the path to enforcement may prove challenging.

“Orders of the International Court of Justice, including orders indicating provisional measures, are in theory legally binding on the Contracting States to the Genocide Convention, i.e. Israel and South Africa. Such orders are final and without appeal,” stated Bindi Dave, senior partner at Wadia Ghandy & Co.

Despite the legal binding, Bakshi highlighted that the ICJ lacks real enforcement power. “Israel has the choice to ignore the ICJ’s ruling and proceed with its operations in Gaza, as the ICJ lacks an independent enforcement mechanism for ensuring compliance with its decisions,” echoed Ankur Mahindro, managing partner at Kred Jure.

In such a scenario, the ICJ can turn to the United Nations Security Council to take appropriate measures.

“Given, however, that enforcement of sanctions is subject to the veto of any of the five permanent members of the Security Council, a proposed resolution for actual or effective enforcement of any provisional measures is susceptible to getting embroiled in political wrangling, especially given the perceived proximity of the United States to Israel,” added Dave.

Previous decisions by the ICJ in comparable cases, such as provisional measures against Russia to halt its invasion of Ukraine or to prevent Myanmar’s violence against Rohingyas, have not proven effective in improving conflict situations.

Nevertheless, experts suggest that Israel might have to temper the intensity of its attacks due to international pressure if the ruling goes against it. 

First Published: Jan 25 2024 | 3:58 PM IST