-Analysis-
PARIS — Did you know that in March 2023, the International Court of Justice ordered Vladimir Putin to stop his war in Ukraine because of the risk of “genocide”? It was barely mentioned because the Russian president, of course, didn’t comply.
This unfortunate precedent and others limit the expectations of those hoping that this Court, an organ of the United Nations, would have the means to actually stop a war. Israel’s Benjamin Netanyahu, no more than Russia’s Putin, would have any intentions of obeying an order for a ceasefire.
With the context of this reality clear for all, the two hearings in The Hague, Thursday and Friday, broadcast live on UN webTV, are nonetheless worth our attention. Israel, the state founded in 1948 in the wake of the Jewish genocide, is now being accused of “genocidal acts.” This is unprecedented.
South Africa, the country that defeated apartheid, is leading this legal battle. The fact that the hearing is taking place is already a success for defenders of the Palestinian cause, and a failure for the Jewish state, forced to defend itself against an accusation of pure infamy.
“Lawfare“ in The Hague
The Anglo-Saxons have coined a word that explains the meaning of this approach: “lawfare,” a contraction of law and warfare. A procedure like the one taking place today in The Hague is the continuation of war by other means.
The aim is not to directly change the current situation of a war, but to build a standing opinion that will inscribe law and morality on the side of one camp. This is important from the point of view of the battle of opinions; it makes it possible to impose — or destroy — a narrative justifying military action.
The history of international justice is long and contradictory. At Nuremberg and Tokyo, the victors of World War II condemned their defeated enemies. At the end of the Cold War, in the 1990s, when we naively believed that a responsible world would emerge, we changed logic with the International Criminal Court, also based in The Hague.
It’s a tangible reality that breaks the silence of impunity
The architects of the treaty signed in Rome in 1998 thought the existence of an independent Court would be a deterrent: from Serbian President Slobodan Milosevic to Liberian warlord Charles Taylor, no one could escape it. But geopolitical power rivalries once again took over. Former Sudanese President Omar al-Bashir was never brought to The Hague, despite an international arrest warrant, and Vladimir Putin is following the same path.
A small step
Still, the legal proceedings continue. In November, the French justice system issued an international arrest warrant for Bashar al-Assad, the Syrian president, accused of “complicity in crimes against humanity” for the chemical attacks of 2013. This was the first time a national court had issued such a warrant against a head of state.
At The Hague, Israel is forced to defend itself for its actions in Gaza, and this in itself is a tangible reality that breaks the silence of impunity. Jurists do not doubt that Hamas, on October 7, committed war crimes punishable by law; but that this does not justify those of which they accuse Israel in Gaza.
More than 2,000 years ago, the Roman philosopher Cicero declared that when weapons speak, the law goes mute. So let us consider it a small step forward that an adversarial legal debate is now being held before an international court of justice even as weapons are still speaking.
