Modern Australian
The Times

no court alone can protect civilians in war

  • Written by Paul Taucher, Lecturer in History, Murdoch University

The world has reacted with anger this week after an Israeli air strike on a safe zone for displaced civilians in southern Gaza reportedly resulted in the deaths of at least 45 people, including women and children.

This latest action in the Israel’s war in Gaza has come despite the International Court of Justice (ICJ) delivering an order last Friday that it must immediately halt its military campaign in Rafah due to the risk to civilians.

It appears Israel is determined to defy the ICJ’s order. Israeli tanks moved into the heart of Rafah earlier this week.

If it continues its assault on Rafah, it would present the ICJ (the UN’s top court) with perhaps the greatest challenge to its legitimacy since it was established following the second world war.

Palestinians fleeing from Rafah
Palestinians fleeing from Rafah on May 28. Abdel Kreem Hana/AP

The ICJ view of the conflict

The court became directly involved in the conflict in December when South Africa lodged a case against Israel, arguing its offensive had amounted to or created the conditions for a genocide of the Palestinian people.

In late January, the ICJ issued a range of orders, including that Israel must take immediate steps to prevent acts of genocide against the Palestinian people and ensure humanitarian aid gets into Gaza.

Last week, the ICJ reiterated its concern over aid, and more critically, ordered Israel to:

Immediately halt its military offensive, and any other action in the Rafah governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.

ICJ justices at the court in The Hague.
ICJ President Nawaf Salam (centre) stands during a ruling on the situation in Rafah on May 24. Koen van Weel/ANP/EPA

There is a large amount of legal ambiguity in the wording of this order.

In one interpretation – favoured by the Israeli government – military and other actions in Rafah can continue, provided these actions are not genocidal.

In another interpretation, the order prohibits Israel from carrying out any further military or other actions in Rafah full-stop.

There’s also a question over how to interpret the word may. That is, at what point can it be said that Israel’s actions may lead to physical destruction?

While the order is ambiguous from a legal standpoint, arguably it is not to many observers: the court wants Israel to stop what it is doing.

The lack of enforcement

It is likely no accident the panel of judges provided such ambiguous orders.

The ICJ is an independent court, but it operates in a difficult political and diplomatic environment. Critically, it also has no independent ability to enforce its orders – there is no world police the ICJ can rely on to ensure its orders are carried out.

Instead, the court relies on the support of powerful countries that are willing to enforce its decisions through diplomatic measures, including sanctions.

Officially, the UN Security Council – as the global body responsible for peace and security – enforces ICJ decisions. However, in practical terms, the veto power of the five permanent members of the Security Council extends to the ICJ.

As such, the United States would likely veto any Security Council resolution to restrict Israeli actions in any substantive way.

While the US has warned Israel not to launch a major offensive in Rafah, a senior administration official has reportedly said this week’s air strike did not cross a “red line”.

This kind of roadblock to the enforcement of the ICJ’s orders threatens the legitimacy and credibility of the court. To exist as a trusted adjudicator in international law, it has to be seen to be applying that law impartially and fairly. And its rulings cannot be ignored.

The court alone can’t stop the fighting

In the past, the effective pursuit of states and individuals for breaches of international humanitarian law has required overwhelming political will, usually in the wake of the complete military defeat of a country at war.

This was the case with the Nuremberg and Tokyo war crimes trials following the second world war, and in other international trials since then. In these past cases, the nations and leaders in question were powerless to resist the overwhelming pressure of the international community.

Read more: There has been much talk of war crimes in the Israel-Gaza conflict. But will anyone actually be prosecuted?

When it comes to allegations of genocide and other breaches of international law, it is also much easier for judges on international courts and tribunals to make decisions after the events have occurred, rather than while they are still continuing, as in the Gaza war.

A government that legitimately holds power is likely to regard the orders of an international body as an encroachment on its sovereignty, as Israel does with the current orders of the ICJ and International Criminal Court.

Ultimately, what the conflict in Gaza and the various legal and political responses have shown is that no court in the world – nor any international law – alone has the capacity to effectively protect civilians during times of war.

Legal thinkers can debate the wording of the ICJ’s latest order, and political leaders can debate the power of the court, but the only thing that can end the war is widespread international pressure for both sides to agree to a ceasefire. This includes from powerful nations such as the US.

Thus, it is not the legitimacy of the ICJ that is most urgently in question at the moment, but rather how deeply the world’s most influential powers believe in the role of international institutions to maintain peace and security.

Authors: Paul Taucher, Lecturer in History, Murdoch University

Read more https://theconversation.com/as-israel-pushes-into-rafah-it-exposes-an-uncomfortable-truth-no-court-alone-can-protect-civilians-in-war-231052

Where to Enjoy Your Off-Road Caravan on the Gold Coast

With a caravan, you can travel anywhere and everywhere without battling the rush of the peak holiday season or last-minute reservations. While the r...

How Osteopathy Supports Recovery from Sciatica and Nerve Pain

Sciatica isn't just annoying. It's genuinely painful. It sits deep in your glute and shoots straight down the back of your leg. It turns something as...

The Winter Jewellery Edit: Five Pieces You'll Wear All Season

As wardrobes shift to cosy knits, tailored coats and rich seasonal textures, jewellery becomes the finishing touch that pulls every winter outfit to...

7 Signs It's Time to Upgrade Your Piston Air Compressor

If you run a workshop, panel shop, or fabrication business anywhere around Perth, you already know what heat and dust do to equipment over a few sum...

How Long Do Bathroom Renovations Melbourne Take? Step-by-Step Process Explained

Planning a bathroom renovation is exciting, but one of the biggest questions homeowners ask is, "How long will it take?" While every project is uniq...

Why Your Skin Breaks Out: The Science of Acne Explained

Acne is the most common skin condition in the world. An estimated 85% of people experience it at some point between the ages of 12 and 24, and a gro...

10 Swimwear Trends Australian Women Are Wearing This Summer

Every Australian summer brings a fresh wave of swimwear trends, but some styles have much greater staying power than others. While fashion constantly ...

Why Regular Skills Updates Are Essential for Licensed Security Officers

A guard at a Brisbane shopping centre gets a call about a shoplifter who's turned aggressive.  They’ve done the job for six years. But their de-...

10 Benefits of Choosing Professional Tutoring Penrith Services

Every student has unique learning strengths, challenges, and academic goals. While classroom teaching provides essential knowledge and structure, so...

Sunshine Coast Baby Classes Prove Big Hit Among First-Time Mums

There's a movement gaining traction on the Sunshine Coast, providing a village of support, socialisation and relief for first-time mothers and babie...

Father's Day Gift Ideas for Men Who Are Hard to Buy For

Some dads are easy to buy for. Others do not want anything, already have everything, or give you the classic "don't worry about me" answer every yea...

Top 5 Mistakes That Wear Out Your Brakes Faster

Brakes don't need frequent replacements like oil changes do.   But a lot of the wear happens quietly, over months, because of habits most drivers...

Plantation Shutters vs Curtains: Which Is Better for Your New Home?

Moving into a new home is an exciting opportunity to personalise your space and make it your own. While many homeowners focus on furniture, flooring...

Celebration of Life vs Traditional Funeral: What's the Difference?

When saying goodbye to someone you love, there is no single way to honour their life. Every family has different traditions, beliefs, and preference...

Building Approval for Roofing Projects: What Homeowners Need to Know

Roofing projects are an important part of maintaining and protecting your home. Whether you're repairing storm damage, replacing an ageing roof, or ...

Chatswood Tutoring And Its Role In Academic Achievement

Academic success often requires more than classroom attendance alone. Students face increasing expectations as they progress through school, particu...

Why Laser Hair Removal Treatments Continue Growing In Popularity

Managing unwanted hair can become time-consuming and frustrating for many people, especially when shaving, waxing, and other temporary methods requi...

Choosing the Right Devices for a Flexible Workplace

For IT leaders managing large fleets, the device layer is where workforce productivity and security policy meet. The shift towards flexible and hybrid...