[COLUMNIST] Navigating The Thorny Path to Justice: Is the Palestinians’ Quest for Justice at the ICJ will be Hindered by the UNSC?

Introduction:

The Israeli-Palestinian conflict has been a persistent and deeply rooted geopolitical issue which has captured global attention for decades. Human rights abuses, torture and oppression occurring in Gaza, including civilian casualties and restricted movements have been countlessly reported by the international community and organisations. Amidst this ongoing turmoil, the United Nations General Assembly (UNGA) and Security Council (UNSC) serve as a platform for addressing issues of international peace and security. Despite numerous resolutions presented, particularly to the UNSC, data from the United Nations reveals that they have unfortunately been vetoed. Moreover, South Africa has initiated a proceeding against Israel on the latter’s alleged violations of the Genocide Convention 1948 before the International Court of Justice (ICJ). If the ICJ has decided the case, its decision will be enforced by the UNSC if any party to a case fails to comply with its decision. Hence this raises a question; whether the UNSC, that is supposed to uphold international peace and security, has inadvertently becomes and will become a stumbling block in the quest for justice for the Palestinian and fails to serve its purpose?

The UNSC and Its Veto Power

The United Nations Security Council (UNSC) is a fundamental component among the six principal organs of the United Nations responsible for upholding international peace and security. It consists of 15 member states, five of which are permanent members with veto power which are China, France, Russia, the United Kingdom and the United States and ten are elected by the UNGA for two-year terms. The resolutions adopted by the UNSC are considered legally binding on the member states. Thus, the decisions adopted in the UNSC resolutions are obligatory and member states are expected to comply with them in line with the United Nations Charter. The failure to act as such may lead to diplomatic consequences, among others, the imposition of sanctions or any other measures by the international community.

The veto power held by the five permanent members is a significant feature of the UNSC and any substantive resolution on matters such as sanctions or authorisation of the use of force cannot be adopted if any of the permanent members cast a negative vote, regardless of the level of support from the other member states. As of now, approximately over 30 resolutions have faced veto within the UNSC relating to the conflict between Palestine and Israel, with the majority of these vetoes originating from the United States. Even the latest draft resolution of S/2023/970 on 8 December 2023 intended for an immediate humanitarian ceasefire has failed to be adopted, owing to the negative vote casted by the United States.

South Africa, Israel and the ICJ

On December 29, 2023, South Africa initiated legal action at the ICJ, the most prominent legal entity within the United Nations, accusing Israel of breaching the 1948 Genocide Convention—a treaty to which both nations are Parties to. In accordance with the Convention, genocide encompasses intentional acts aimed at wholly or partially destroying a national, ethnic, racial, or religious group, precisely the allegations against Israel over the course of several years. Nevertheless, Israel unapologetically dismissed such accusations and intends to assert its position with pride. The argument they plan to present is that the reported killing of over 25,000 individuals in Gaza is a self-defense measure sanctioned by international humanitarian law, as articulated by Antony Blinken, the United States Secretary of State and a staunch ally of Israel.

Despite South Africa presenting compelling arguments and evidence highlighting Israel’s severe massacres, establishing genocidal intent in a court of law is a complex task. The burden lies in demonstrating that the perpetrators intended the complete or partial destruction of a group while engaging in acts of genocide, regardless of whether they ultimately succeeded in realising those intentions. However, considering the notable figures presenting the case before the ICJ judges, there is a glimmer of hope that the oppression and abuses in Gaza may see an end. Consequently, there is an optimistic expectation that the ICJ will impartially evaluate the case and refrain from turning a blind eye. The hope is for a fair assessment that would subject Israel to the appropriate judicial scrutiny, paving the way for a just resolution.

Although the ICJ decision is legally binding on the parties to the proceeding in accordance to Article 94(1) of the UN Charter, if any party to a case fails to follow the decision and perform the obligations incumbent upon it under the ICJ judgment, the other party may have recourse to the UNSC, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment as stipulated under Article 94(2) of the UN Charter. Nonetheless, judging from Netanyahu’s statement that “[n]o one will stop us - not The Hague (referring to the ICJ), not the axis of evil and no one else”, Israel would not follow and perform any ICJ’s decisions and the United States, being one of the UNSC permanent members would use any necessary measures within the council to prevent such decision from being enforced.

Conclusions

The presence of veto power within the UNSC does hinder the pursuit of justice for Palestinians. The ability of certain member states to veto resolutions, even when supported by the majority, creates challenges in the Council’s effectiveness and compromises its capacity to address the Israeli-Palestinian conflict in a manner that reflects the broader international community’s perspectives and aspirations for justice.

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Nurul Azyani Zafirah Sabaruddin is a fourth year LL.B student at the Faculty of Syariah and Law, Universiti Sains Islam Malaysia and Dr. Fareed Mohd Hassan is a Lecturer at the Faculty of Syariah and Law, Universiti Sains Islam Malaysia.

** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.

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