Israel is the victim of escalating international lawfare

The International Court of Justice has undermined itself – if it is to regain credibility, it must change course

Across the course of the past year, Israel’s military action in Gaza has been the subject of repeated challenge in international courts. In late December 2023, South Africa began proceedings in the International Court of Justice (ICJ), alleging that Israel had committed and was committing genocide against the Palestinians. 
This was an extraordinary allegation to make in the immediate aftermath of the 7 October atrocities, when Israel was using force in self-defence to attempt to rescue hostages and to degrade Hamas’s capacity to commit further acts of mass murder, rape, and hostage-taking.
Israel decided to participate in the proceedings, arguing that its actions were fully in conformity with the Law of Armed Conflict and were obviously not aimed at the destruction of the Palestinian people. Israel denied further that the ICJ had jurisdiction insofar as there was no dispute between it and South Africa and maintained that South Africa’s factual narrative was partial and misleading.
In January, the ICJ made an initial ruling, holding that it had prima facie jurisdiction and that at least some of the rights claimed by South Africa under the Genocide Convention were plausible. This did not mean that the Court was ruling that it was plausible that Israel was committing genocide, a misapprehension amplified by many lawyers, before being corrected by the ICJ’s former president. Still, the ruling, while not final, clearly inflicted much reputational damage on Israel.
South Africa asked the Court to make various “provisional measures” restraining Israeli military action. The ICJ refused to order Israel to suspend military operations, but instead effectively reminded Israel of its responsibilities under the Genocide Convention. 
In February, March and then in May, South Africa requested additional provisional measures to require Israel to refrain from its planned Rafah offensive, to ensure food supplies to the Palestinian people, and to desist from its Rafah offensive. The ICJ refused the first, but allowed the second and third in part.
All states, and indeed all combatants, should comply with the Law of Armed Conflict, which forbids, amongst other things, targeting civilians. But one would not ordinarily expect a state’s military operations to be subject to international judicial supervision in the midst of a conflict, not least in view of the court’s distance from the facts and lack of responsibility. 
It is striking that Israel’s use of force has been questioned in this way.
The political deployment of legal processes stepped up in May, when the prosecutor of the International Criminal Court (ICC) applied for arrest warrants against the Prime Minister and Defence Minister of Israel, as well as against Hamas commanders. 
This was a very ill-judged decision on the part of the prosecutor, implying an equivalence between terrorists who had openly committed mass murder and the leaders of a democratic state using force in self-defence against them. 
It remains to be seen whether the ICC will issue arrest warrants. What is clear is that in seeking these arrest warrants the prosecutor adopted an unfair process and ignored the clear limits on the ICC’s jurisdiction, which does not extend to Israeli citizens.
Israel is not a party to the Rome Statute, which established the ICC, and Palestine, which is not a state, cannot cede criminal jurisdiction over Israelis to the ICC, not least since in agreeing the Oslo Accords it disavowed any such jurisdiction. 
The prosecutor’s many failings were spelled out by an expert panel of lawyers meeting at Policy Exchange last month. The failings include the prosecutor’s apparent misunderstanding of the Law of Armed Conflict and his indifference to the fundamental principle of complementarity, which means that the ICC only has a role when domestic legal remedies are effectively unavailable.
More recently still, in July, the ICJ issued an advisory opinion stating that Israel’s occupation of Palestinian territories was illegal. This opinion followed from a request that was initiated in December 2022, well before the present conflict began, but is both a further propaganda victory for Israel’s foes and an indication of a loss of intellectual integrity in international adjudication.
The ICJ’s advisory jurisdiction cannot responsibly be used to evade the fundamental rule of state consent, which means that states cannot be forced to submit to adjudication. One saw the same objectionable move in the ICJ’s 2019 advisory opinion about the Chagos Islands, which seems to have led the British government in recent days wrongly to decide to cede the Islands to Mauritius. 
In relation to Palestine, the ICJ’s intervention threatens to undermine the Oslo Accords which provide that the conflict is to be settled through negotiations between the two parties.
These developments have yet to run their course. But it is clear already that they constitute a worrying escalation in lawfare. Much will turn on whether international courts recover a concern for the principled limits of their jurisdiction.
Professor Richard Ekins KC is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government at the University of Oxford