It’s “highly likely” the UN’s top court will decide that South Africa’s genocide case against Israel is plausible, an international law expert says. Such a ruling will exacerbate pressure for Australia to take a stronger stance towards Israel, with several issues likely to be pressure points. Zacharias Szumer reports.
After two days of hearings last week, the International Court of Justice (ICJ) has retired to consider South Africa’s allegation that Israel’s post-October 7 counteroffensive in Gaza – which has so far left almost 25,000 dead – amounts to an act of genocide.
While the court will take years to issue a final determination, provisional measures are “highly likely” to be made – and made quite soon, a legal expert says.
Provisional measures aren’t a legal ruling on whether Israel’s conduct is genocidal – just that South Africa has presented a plausible case, and Palestinians face irreparable harm if hostilities continue.
Provisional measures are ‘highly likely’
Based on previous cases and the urgency of a genocide claim, a decision could be reached within 7-10 days, says Donald Rothwell, a professor of international law at the Australian National University.
With a shakeup of the sitting ICJ judges happening on February 6, there’s a strong incentive for the court to determine the case before then, Rothwell says.
“On the basis of ICJ precedent in previous cases – such as the 2020 Gambia v Myanmar Genocide case – it is highly likely the court will issue provisional measures in this instance,” he said.
However, Rothwell isn’t certain the measures will include an order for Israel to completely suspend military activities in Gaza. He added:
The ICJ will be careful not to issue orders that seek to impair Israel’s inherent right as a sovereign state to exercise self-defence.
While the content of any impending provisional measures is unknown, the court may only order Israel to do more to reduce civilian casualties or facilitate the entry of humanitarian aid.
Where will Australia stand?
For his part, Israeli Prime Minister Benjamin Netanyahu has promised that the ICJ won’t deter Israel in its mission to eliminate Hamas, retrieve its hostages and ensure Gaza “will never again constitute a threat to Israel”.
Leaders from the United States and the United Kingdom have both criticised South Africa’s case. It’s also likely the US will use its veto power to block any resolution from the United Nations Security Council seeking to enforce the ICJ’s ruling.
Australia has so far avoided commenting directly on the case, but any provisional measures would exacerbate pressure on the Albanese government, something that has been increasing as the death toll in Gaza has continued to rise in the last few months.
“Australia has obligations under the Genocide Convention. A ruling from the principal judicial organ of the UN, which Australia respects, will make it imperative for the government to act,” says Rawan Arraf, executive director of the Australian Centre of International Justice (ACIJ).
Arraf says that, while Australia has long neglected to censure Israel for previous “war crimes and crimes against humanity”, she “can’t see the Australian government ignoring an ICJ order that will essentially say there is a plausible case that Israel is committing genocide.”
This would change things. It should change things. If they do ignore it, it would be scandalous.
Are Australians serving with the IDF at legal risk?
In late December, the ACIJ wrote a letter calling on the government and federal police to investigate Australian citizens currently serving in the Israeli Defence Forces (IDF).
The letter argued such individuals could be violating Australian criminal law, given the “mounting evidence the IDF is committing grave crimes” and that “Australia has obligations under international law to prosecute the commission of such crimes.”
The ACIJ is yet to receive a response to the letter, Arraf says, but added that any provisional measures would surely “strengthen the need to investigate and prosecute” individuals who had violated international law.
Rothwell was more circumspect about the impact of ICJ provisional measures on issues such as Australian citizens serving in the IDF.
“I think we’d need to be really cautious at the moment … we’d just need to read what orders the court issues to gain an understanding as to what obligations Australia, and any other state parties to the convention, might have,” he said.
Nonetheless, Australian courts would give “a great deal of weight to a decision of an international court on such a matter,” he said, even if they aren’t bound by any ICJ ruling, especially at the provisional measures phase.
Australia does have “a clear legal framework under which Australian citizens who are alleged to have engaged in conduct amounting to genocide could, in theory, be prosecuted,” he said, referring to the war crimes charges laid against a former SAS soldier who served in Afghanistan.
However, he said it would be “absolutely exceptional” that any Australian citizens would be subject to criminal genocide prosecution, given that such a charge is reserved for military and political leaders.
Nonetheless, “as a result of this provisional measures ruling …. Australia could take the view that it might well wish to remind Australian citizens serving with the IDF that they are still subject to Australian law, and indeed they could possibly be subject to war crimes, in a very generic sense, under Australian law,” he said.
Neither the Attorney-General’s Department nor the Department of Foreign Affairs and Trade could provide MWM with the number of Australian citizens currently serving in the IDF.
Australian law allows Australian citizens and permanent residents to engage in hostile activities overseas, so long as they are serving in or with the armed forces of a foreign country.
Impact on Australia’s weapons trade and defence cooperation
Arraf also said that provisional measures should increase pressure on Australia to “reconsider, review and end complicity that provides any kind of support to Israel in conducting its military operations in Gaza”.
This includes ceasing all forms of defence cooperation with Israel, whether military exports or Israeli defence industry investments in Australia, she said.
Australia has reportedly sent $13 million in arms and ammunition to Israel in the past five years.
However, due to Australia’s highly opaque weapons export approval system, little else is publicly known.
Australia is forbidden under international law to actively contribute to another country breaching the laws of war, and the Department of Defence says that any military exports are assessed to ensure compliance with these obligations.
The impact of any ICJ provisional measures on Australian defence exports to Israel “depends on how Australia interprets the court’s ruling,” says Lauren Sanders, an expert in war crimes enforcement and weapons law at the University of Queensland.
“From an Australian perspective, it really comes down to politics, as opposed to being a definitive international ruling on interpretations of breaches of the law at this provisional stage.”
“Tying the provisional measures … to Australia’s exports is probably going to be difficult in a technical sense, but it’s more likely to create political pressure on the government to be either transparent in their release of what export permits they’ve issued for Israel, or in relation to stopping the exports of particular items to Israel during this period.”
Beyond arms exports, the ICJ case could place pressure on other forms of defence cooperation and Australian investments.
Since 2015, the annual Be’er Sheva dialogues have brought together senior Australian and Israeli defence officials and parliamentarians to “discuss areas of shared strategic interests and challenges, as well as the potential for collaboration.”
Australia’s sovereign wealth fund recently invested almost $500,000 in Israeli military technology company Elbit Systems, after it was removed from the exclusions list in April 2023. Elbit is blacklisted by funds in countries like Norway and Denmark, and the group has been subject to divestment by global banks and pension funds.
According to Freedom of Information requests made in 2021, the Future Fund also had around $4 million invested across four Israeli banks, which Arraf has said are “fundamental to the settlement project” in the West Bank.