Protesters holding Palestinian flags gather outside the International Court of Justice during the genocide case against Israel made by South Africa in The Hague, Netherlands, on Jan. 26, 2024.
Photo: Nikos Oikonomou/Anadolu via Getty Images
On Friday, the International Court of Justice — part of the United Nations — issued an interim ruling in the case initiated by South Africa asserting that Israel “is committing genocide in manifest violation of the Genocide Convention.” What happens now?
The court did not make a determination on South Africa’s first request, which was to instruct Israel to “immediately suspend its military operation in and against Gaza” — i.e., engage in a ceasefire.
However, the ICJ did demand that Israel take actions that for all intents and purposes do require it to stop its assault on Gaza. “Israel must,” the ICJ stated, “take all measures in its power to prevent the commission of all acts within the scope of Article II of this [Genocide] Convention, in particular: (a) killing members of the group [i.e., Palestinians in Gaza].”
If history is anything to go by, the United States will now step in to prevent any enforcement of the ICJ’s ruling. While it’s totally forgotten today by Americans — and indeed was barely noticed at the time — the ICJ responded to a complaint from Nicaragua during the 1980s by ruling that the U.S. had violated international law in numerous ways by mining Nicaragua’s harbors and supporting the Contras in their attempt to overthrow the country’s Sandinista government.
This backstory tells us a great deal about how the U.S. views international law: meaning, the U.S. has complete contempt for it, and sees it purely as a tool that can sometimes be used against our enemies, but can never be permitted to apply to us or our allies like Israel.
The International Court of Justice was established in 1945 with the creation of the United Nations. It’s one of six organs of the U.N., including the most famous (the U.N. Security Council), the slightly less famous (the General Assembly), and the parts no one’s ever heard of (the Trusteeship Council).
Article 94 of the U.N. Charter explains clearly that if you’re part of the U.N., you have to obey rulings by the ICJ: “Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.”
Article 94 continues that if a country does not comply with obligations created by an ICJ judgment, “the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”
Nicaragua filed a complaint against the U.S. at the ICJ — called an “application” in the court’s nomenclature — in April 1984.
Over the 20th century, the U.S. had intervened repeatedly in Nicaraguan politics to make sure the country’s government did not damage the profits of American investors. Smedley Butler, a famed Marine general-turned anti-imperialist, once wrote that “I helped purify Nicaragua for the International Banking House of Brown Brothers in 1902–1912.”
The U.S. helped Anastasio Somoza, the son of a rich plantation owner, seize power in Nicaragua in 1937. When he was assassinated in 1956, his eldest son Luis took charge. A few years after Luis died of a heart attack in 1963, his younger brother became dictator.
All of this was super from the perspective of the U.S. But then in 1979, something horrible happened: The last Somoza was overthrown in a revolution led by the socialist Sandinista movement.
In 1981, the incoming Reagan administration saw destroying the Sandinistas as a top priority. Toward that end, it funded and organized the Contras, largely members of the former regime’s National Guard. The Contras fought the Sandinista army while also massacring copious numbers of Nicaraguan civilians.
Nicaragua’s application to the ICJ argued that the U.S. was violating the U.N. Charter, the Charter of the Organization of American States, and, from way back in 1933, the Montevideo Convention on the Rights and Duties of States.
Within a month, the ICJ had issued provisional measures ordering the U.S. to stop mining Nicaraguan ports and to respect the country’s sovereignty.
The U.S. responded by completely ignoring this. Soon it announced that it wasn’t even going to show up in court, stating that it “intends not to participate in any further proceedings in connection with this case.”
The ICJ issued a final ruling in 1986, finding that the U.S. was “in breach of its obligation under customary international law” in four separate ways. The U.S. was therefore “under a duty immediately to cease and to refrain from all such acts” and also “under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua.”
The U.S. again chuckled and ignored this.
Because the ICJ does not itself have any enforcement mechanism, this left Nicaragua with one recourse: Follow Article 94 of the U.N. Charter and ask the Security Council to take action.
But of course the U.S. is one of the five permanent members of the Security Council, and as such can veto anything. That’s exactly what it did with two resolutions introduced in 1986 that optimistically reminded everyone that “according to the Charter of the United Nations, the International Court of Justice is the principal judicial organ of the United Nations and that each Member undertakes to comply with the decision of the Court.”
In both cases, there were several abstentions, but the U.S. was the only one of the 15 members of the Security Council to vote no. Then the General Assembly passed a nonbinding resolution calling on the U.S. to comply with the ICJ ruling. It passed 94-3, with the only countries voting against it being the U.S., El Salvador, and Israel. The U.S. ignored it.
An ICJ ruling on whether Israel is committing genocide will likely take years. But according to the U.N. Charter, Israel must obey its provisional demands immediately — just as the U.S. was required to obey the court’s provisional demands in 1984.
Whether this will happen can be judged by the words of Israeli Prime Minister Benjamin Netanyahu earlier this month: “No one will stop us – not The Hague, not the Axis of Evil and no one else.”
Therefore South Africa, just like Nicaragua decades ago, will have no recourse except to request that the U.N. Security Council take action. And the U.S. will have to decide whether it will again make certain that it and its allies can safely ignore and reject international law.
The post Will the U.S. Block the ICJ on Gaza? It’s Thwarted the Court Before. appeared first on The Intercept.
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