It is hard to keep track of Israel’s policy these days about whether it wants to dialogue and try to combat war crimes charges against it at the International Court of Justice and at the International Criminal Court.
There are at least three major proceedings going on against Israel, two at the ICJ, and one at the ICC, with one of the ICJ proceedings barging into the headlines on Monday and for the rest of this week.
This week’s hearings – the “smaller” and newer case at the ICJ are an attempt by the Palestinian Authority, South Africa, and others to attack Israel for alleged attempts to starve Gazans, for its declaring UNRWA illegal, and for its blocking the flow of humanitarian aid into Gaza since early March of this year.
The “big” and older ICJ case accusing Israel of genocide had major hearings in January 2024 and Jerusalem succeded in concinving the ICJ not to issue an order to end the war at the time and also recently won an extension on when it will need to provide evidence to rebut the allegations until January 2026.
In the ICC case, Israel had suffered a series of losses in 2019, 2021, and November 2024, but on Thursday of last week, the Jewish state won at least a partial reprieve when the ICC Appeals Court rebuked a lower ICC court for moving forward with the case against Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant without fully exploring Israel’s various jurisdictional objections to the ICC’s very authority to bring charges against Israelis.
Israel’s legal cases in international courts
In both the ICC and ICJ forums there have been times where Israel favored more dialogue and showing up to hearings to try to defend itself, and there have been times where Jerusalem preferred to boycott the process entirely or almost entirely.
Generally, Israel has also boycotted UN Human Rights Council proceedings against it, viewing those proceedings as even more biased, political, and rushed than the ICJ or ICC.
Key points when Israel boycotted or mostly boycotted the ICJ were during a 2004 proceeding about the legality of its West Bank Barrier and during 2023-2024 proceedings about the legality of its policies dealing with Palestinians in the West bank and east Jerusalem.
Likewise, while Israel made its objections to the ICC’s jurisdiction public in 2019 and 2021, formally it boycotted the proceedings, and it even partially boycotted ICC Prosecutor Karim Khan when he visited Israel in late 2023.
However, when Israel came with its full team of lawyers to fight the genocide case before the ICJ in January 2024, it seemed to have turned a corner.
Likewise, after its at least partial win at the ICJ in January 2024, it won the already mentioned delay of that case until January 2026.
And once Israel decided to show up to fight charges against it at the ICC lower court and then the ICC Appeal Court, it eventually achieved a partial win, which has likely delayed that case for several months or more.
If Israel has, in 2024 and 2025, been trending toward showing up to make its case and having some real success, why duck out of the ICJ hearings this week?
Why hold a press conference in Israel lambasting UNRWA when it could be making the same case in The Hague and possibly impact the outcome of the case.
Legally speaking, there are some differences. This week’s ICC starvation/UNRWA case is “only” an advisory opinion, and if the ICJ rules against Jerusalem, any major UN actions against Israel would likely be vetoed by the Trump administration.
In contrast, the genocide case is, in a sense, more binding because it relates to Israel being a signatory to the Genocide Convention. This is not something the US can veto.
Also, the ICC can bind around 125 countries to arrest Netanyahu and Gallant, such that its rulings also have some real “teeth”.
But there could be some broader strategic reasons that Israel decided to boycott the ICJ this week, even as it is in the middle of a relative win streak among international judicial bodies.
The ICC can go after Netanyahu and Gallant, but it cannot order anything specific against Israeli policies.
The ICJ could have tried to order Israel to end the war in the big case, but did not. And it is highly unlikely it will determine that Israel has committed genocide, even if it is biased and determines that it thinks Israel committed some war crimes, as genocide is an incredibly hard standard to prove.
In contrast, the ICJ will probably issue some order that Israel does not like regarding UNRWA or regarding its blocking of humanitarian aid since early March.
It appears that someone in Jerusalem determined that if Israel thinks it needs to ignore that order, it will be slightly more palatable to ignore it if Israel boycotts the whole proceeding as invalid.
What is most surprising, though, is that Israel will likely allow the flow of humanitarian aid in the near future.
When the government cut off the flow of aid in early March, it was based on the mathematical calculation that the 600 trucks per day of aid that had entered Gaza between January 19 and early March had left Gaza with a surplus of food that could last three to six months.
The clock on the three-month version of the estimate runs out in the coming month.
Contrary to critics’ allegations, Israel is not ready to allow Gazans to starve en masse and, as such, Defense Minister Israel Katz already started making noise about restoring food aid some weeks ago.
If Israel is going to restore food aid soon anyway, it becomes less clear what it has to lose by showing up at the ICJ and saying that.
Maybe Netanyahu is worried that such a public statement would strengthen Hamas’s resolve to hold out for its terms for a ceasefire for longer. But Hamas already knows that Israel will eventually crack on the food aid issue so it really is not clear what Jerusalem hopes to gain by boycotting the ICJ this time.
And in terms of Israel’s broader image of a country which cooperates and identifies with the Western, democratic, and rule of law world, Israel has just muddied the waters in a time period when its brand is already at an all time low.
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