South Africa instituted proceedings against the state of Israel with respect to the violation by Israel of its obligation to prevent and punish genocide under the Genocide Convention, to which it is a party. After hearing arguments concerning South Africa’s request for provisional measures due to the imminent risk of genocide, the International Court of Justice issued an order on January 26. Since this order relates only to interim measures, the court has not ruled on whether Israel has committed or facilitated genocide but on whether a plausible risk of genocide taking place currently exists.
The ICJ’s ruling
The court refused to order a ceasefire, as per South Africa’s primary request. This is a significant victory for Israel because this order, unlike in Ukraine versus Russia, does not create a binding legal obligation upon it to cease all military operations in the Gaza strip. The court further found that Israel has the obligation not to commit acts such as killing, destruction, or causing bodily harm against Palestinians, but only insofar as they fall within the scope of the Genocide Convention. Therefore, the provisional measures restrain Israel from committing such acts towards a specific genocidal intent. This is not a new obligation, since the Israeli government is already bound to do so because it is a party to the Genocide Convention. Therefore, Israel will likely continue its military campaign while claiming that it is compliant with applicable international law, including the Genocide Convention, as it has done so far.
The ruling also includes a reference to the events of October 7 and a surprising and unprecedented call for the release of all hostages by Hamas. Since the ICJ only has jurisdiction over nation-states, it cannot legally bind the actions of armed groups such as Hamas. Further, this part of the order diverges from the court’s otherwise clear and deliberate focus on matters within its jurisdiction, suggesting that the judges have been affected by the immense political pressure and propaganda of Israel and its allies. Finally, an overlooked part of the court’s decision is its refusal to direct Israel to provide full access to fact-finding bodies such as the UN special procedures. Since it began its military operations, Israel has severely restricted access to the press and the UN. Such a measure may have forced the Israel to allow greater access to independent investigators, led to greater accountability, and possibly the discovery of more evidence against Israel. These are strong positives for Israel.
Amal, 7 years old, contemplates her neighbourhood in Gaza after neighbouring homes were levelled to the ground. Photo: UNICEF/Mohammad Ajjour
However, even though South Africa was not able to secure their main request, the order provides some encouragement for its claim. It identifies the Palestinian people as a distinct national group, an essential element in proving the crime of genocide. It also suggests that it is plausible that a real and imminent risk of genocide exists due to Israel’s actions since 7th October. Though it is not a determination of liability, it puts Israel on notice. Crucially, the court has quoted reckless statements made by Israeli officials, including the President and Defence Minister holding all Palestinians responsible for the attacks and denying them the basic necessities of life. Since proving specific genocidal intent is the most difficult aspect of proving the crime of genocide, it is significant that the court recognised the plausibility of its existence.
In another positive for South Africa, the court made strong reference to the humanitarian situation in Gaza and ordered that Israel must take “immediate and effective measures” to ensure humanitarian assistance is provided. Considering news of Israel blocking humanitarian aid from entering Gaza, this will add to the political pressure on it to allow all aid. The fact that the President of the ICJ read out the statements of senior Israeli officials and concluded that it is plausible for genocide to be taking place is also a major victory, as is the court’s reading of testimony relating to the dire situation in Gaza. The powerful language used by the court will help shape public opinion in favour of the Palestinians and will increase pressure on Israel’s allies to reconsider their unconditional support to its military campaign.
Judges assert their independence
The order is a good example that the judges of the ICJ are not political representatives of their nominating States. This judicial independence is apparent in that the American President of the court voted in favour of South Africa despite the US being Israel’s closest ally. Even Aharon Barak, the ad-hoc judge appointed by Israel for this case, voted with the majority on the measures requiring Israel to prevent and punish any incitement of genocide against the Palestinians, and allow humanitarian aid. Closer to home, Justice Dalveer Bhandari of India, in a separate declaration, stated that all hostages should be returned but also that all participants must ensure that hostilities come to an immediate halt, which is more supportive of the Palestinian side than the official position of the government of India.
What to expect next
The court has required that Israel must report on its compliance with provisional measures in one month’s time, and there is added pressure on Israel to allow humanitarian aid. Further, though the court has not called for halting hostilities, it may determine in one month’s time that Israel has failed to follow the provisional measures requiring it to prevent and punish incitement or commission of genocide. However, this seems unlikely considering that the court did not reach that conclusion at present, and the facts are unlikely to change significantly due to the massive scale of Israel’s concluded military actions, which the court did not find were of sufficient gravity to order a ceasefire.
Since the ICJ cannot enforce its orders, the UN Security Council has the responsibility to ensure compliance. As the US holds a veto on the Council, and has fully supported Israel, it is not a given that such a resolution will be allowed to pass. This was also the case in the Ukraine v. Russia case because Russia used its veto to prevent the UN security council from actioning the judgement of the court. This problem of enforcement may explain why the ICJ has taken a relatively safe, conservative stand and made reference to the obligations of Hamas, whom it has no jurisdiction over. Even so, the US and its western allies have so far refused to criticise or restrain Israel in any manner and withdrew funding from the UN Agency for Palestine Refugees (UNRWA) immediately after the court’s order. Despite the caution that the judges have shown, the order may still end up being rendered ineffective.
Nonetheless, this order may cause other states to review their positions on the conflict. Encouragement from its supporters to comply with the order may persuade Israel to reconsider its present belligerent stance (the government referred to the South African lawyers as the legal team of Hamas). For instance, the German Foreign Minister released a statement emphasising that the ICJ order is a binding legal obligation on Israel. How the court responds to Israel’s report in one month’s time may depend on how the international community responds to its order.
Israel’s actions and the statements of its officials and allies have been at odds with the rest of the world, which has voted overwhelmingly to cease the conflict at the UN General Assembly. The court’s order has allowed both sides to claim a victory and may ease its enforcement at the UN Security Council. Its success is crucial for thousands of civilians in Gaza who are facing unimaginable conditions, and for the future of international law and the rules-based order itself.
Unmekh MP is an international lawyer based in New Delhi, with a specialisation in matters pertaining to the Middle East.
