In advance of the International Court of Justice’s ruling on Friday, we asked several leading experts if they would provide us with their views on the judicial order once it was issued. What follows are their views of today’s ruling by the ICJ in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).
You can also read Just Security’s initial analysis of the order here. Later today the Just Security podcast, with host Paras Shah, will feature Professors Oona Hathaway, Adil Haque, and Yuval Shany discussing the case.
Todd Buchwald, former Special Coordinator and Ambassador for the U.S. Department of State’s Office of Global Criminal Justice:
It will take time to fully digest this morning’s order. On the most important issue, however, the Court declined to give South Africa what it had requested: a provisional measure stating that “the State of Israel shall immediately suspend its military operations in and against Gaza.”
South Africa had argued that the imposition of such a requirement would follow the model the Court had used in the provisional measures phase of Ukraine v. Russia, where the Court did indeed order Russia to “immediately suspend the military operations that it [had] commenced in the territory of Ukraine.” But the Court today was far more cautious. It said that Israel should take all measures within its power to prevent the commission of all the acts of genocide listed in paragraphs (a) through (e) of Article II of the Genocide Convention. But it was quite clear – see paragraph 78 — that today’s order applies only insofar as those acts might be carried out with genocidal intent. That is to say, the Court emphatically did not order Israel to cease its military operations. Meanwhile, it declined to adopt South Africa’s proposed wording, under which the Court would have ordered Israel to “desist” from the commission of acts of genocide, thus implying that Israel had heretofore committed such acts, and instead said only that Israel must “prevent” such acts — which after all is the obligation of Israel and all other states under the Genocide Convention anyway.
Although this may disappoint South Africa’s supporters, I do think the Court was wise to show this restraint, particularly as one thinks about the nature of the provisional measures phase of a case like this. Under the Court’s jurisprudence, the purpose of provisional measures is to preserve the rights of the parties pending the Court’s eventual decision on the merits of the case. Under that jurisprudence, however, the Court can indicate provisional measures upon a simple showing that the rights asserted by the Applicant are “plausible.” That is quite a low standard. One might for instance compare it to the analogous standard that courts apply under U.S. domestic law in deciding whether to impose a preliminary injunction, where parties seeking such an injunction must demonstrate that they are “likely to succeed” on the merits.
Especially because the standard is so low, it is important for the Court to take into account the potential prejudice to the rights not just of the Party seeking the provisional measures but also of the Party upon whom the provisional measures would be imposed. This follows from the fact that, even if one accepts an Applicant’s argument that a Respondent has violated its obligations is “plausible,” the Respondent’s argument that it has not violated its obligations may be equally plausible, or it may even be more plausible, or it may in fact even be probable.
Given the low standard of “plausibility,” and the gap between plausibility and the much higher level of certainty that the Applicant will eventually need to satisfy in order to establish that the Respondent has violated its obligation when the Court considers the case on the merits, it is all the more incumbent upon the Court to take into account — and not unfairly prejudice — the Respondent’s rights and interests. This would seem to be especially so in a case like the present one in light of the gap between “plausibility” and the particularly high standard that the Court has ruled applies before it will make a finding that a State is responsible for genocide – i.e., that for a pattern of conduct to be accepted as evidence of the existence of genocidal intent, it must be “the only inference that could reasonably be drawn from the acts in question.”
For its part, the Court did not say much specifically about what were the Israeli rights that needed to be safeguarded against unfair prejudice. Nevertheless, the evident logic is that it had in mind that Israel had a right to defend its territory and its people in the wake of the horrific October 7 attacks. Not unrelatedly, the Court seemed to go out of its way to express its grave concern about the fate of the October 7 hostages and to call for their immediate and unconditional release.
None of this means that either Israel or South Africa will be happy or unhappy with all the elements of the order and none of this makes particularly clear what will happen next. But the Court’s order appears inextricably tied to an acknowledgement that Israel has a continuing right to protect itself from the threats emanating from Gaza. The importance of this acknowledgment should not be overlooked.
Janina Dill, Dame Louise Richardson Chair in Global Security at the Blavatnik School of Government, Fellow at Trinity College and Co-Director of the Oxford Institute for Ethics, Law, and Armed Conflict:
Almost as if she knew that thousands of people were listening who do not normally speak international law, ICJ President Judge Joan Donoghue repeatedly stressed today that the Court was “not called upon to establish the existence of breaches of the Genocide Convention”. Instead, the Court told the world that it is not implausible that Israel’s military operations in Gaza and its months-long siege of the strip violate the Convention. Neither did the Court find it implausible that public statements by senior Israeli politicians amount to incitement to genocide. This is a significant rebuke of a democratic country that sometimes claims to have the most moral army in the world. It is also a rebuke of world leaders who preempted legal deliberations by declaring the case meritless or baseless or who argue that Israel’s compliance with international law can be assumed because it is a democracy.
Genocide should be an implausible charge. What follows that it is not? All high contracting parties to the Genocide Convention have duties of prevention. Governments that supply Israel with arms have been put on notice that they are assisting what may plausibly be a very serious internationally wrongful act. The moral imperative to defer to the authority of the Court, the potential legal jeopardy of supporting acts that plausibly violate the Genocide Convention, and the strategic implications of being seen to do so should be sufficient for the Biden administration to make a radical course change. At minimum, the implementation of all provisional measures should be a condition before the United States, or any country, considers further military or diplomatic support of Israel.
Will today make a difference for how Israel wages war in Gaza? The Court predictably did not order a ceasefire. Neither did it specify prescriptions for the conduct of hostilities other than that they must not violate the Genocide Convention. The Court also reminded all parties to comply with international humanitarian law (IHL), which Israel claims it already does, a claim already widely contested. In his reaction to the Court, Israel’s Prime Minister Benjamin Netanyahu seemed determined to stay the course, but he may face more domestic opposition now. He has nourished a narrative that United Nations institutions are biased, but the ICJ is not a political body and it decided almost unanimously. Moreover, Israel’s ad-hoc Judge Aharon Barak voted in favor of two provisional measures, including that Israel must take “immediate and effective measures to ensure the provision of urgently needed basic services and humanitarian assistance.” Complying with this demand requires that Israel takes concrete steps to let in much more aid than it does now. The Court seemed particularly serious about this demand when Donoghue amplified statements by humanitarian actors describing the catastrophe unfolding in Gaza, rejecting, by omission, Israel’s counter-narrative that aid gets in.
Israel must report back in a month, and it will likely have to defend itself against the merits of the genocide charge. The evidentiary threshold for establishing genocidal intent will then be much higher, particularly if the court sticks to the threshold it has itself set in Bosnia v. Serbia. Still the prospect of further scrutiny by the Court matters. When a case hinges on “the intent” of a state it is easy to forget that this is an aggregation of many people’s states of mind and there are likely many voices in Israel who do not agree with the current course of action in Gaza. Those Israeli voices have a fresh, strong argument for why exercising restraint and lifting the siege are not only morally right and legally necessary, but eminently in Israel’s interest.
Chile Eboe-Osuji, Distinguished International Jurist at Lincoln Alexander School of Law of the Toronto Metropolitan University; former 4th President of the International Criminal Court:
The ICJ’s provisional ruling rendered this morning is eminently wise in every way. It must be fully implemented for the sake of humanity that we all share.
Legal scholars will subject the decision to the usual treatment of extended analyses, seeing values and flaws and what the future may or may not hold for the merits of the case. It should also be an occasion to reflect upon the role of international courts in the preservation of international peace and security, a reflection that I began in my last piece on this very portal. That reflection is over a century old, going back to the creation of the ICJ’s predecessor in 1920. Almost 80 years ago, as World War II was nearing its end, a renowned American jurist re-engaged the reflection when in anticipation of the present court he spoke on the value of the international rule of law to a world that values peace. Here, Robert H Jackson deserves quoting at length:
“[I]t is futile to think that we can have international courts that will always render the decisions we want to promote our interests. We cannot successfully cooperate with the rest of the world in establishing a reign of law unless we are prepared to have that law sometimes operate against what would be our national advantage. In our internal affairs we have come to rely upon the judicial process to settle individual controversies and grievances and even those between states of the Union, not because courts always render right judgments, but because the consequences of wrong or unwise decisions are not nearly so evil as the anarchy which results from having no way to obtain any decision of such questions; in which case each will take the law into his own hands. And in a somewhat similar sporting spirit we must look upon any international tribunal, not as one whose decision always will be welcome or always right or wise. But the worst settlement of international disputes by adjudication or arbitration is likely to be less disastrous to the loser and certainly less destructive to the world than no way of settlement except war.”
Earlier today, the calm image of President Judge Joan Donoghue—another American jurist, who sadly will soon be leaving the Court—reassured the world that this is a court that humanity can depend on when politicians have lost their way in managing international peace and security at the UN.
Among those whose lives have been personally consumed by the Israeli-Palestine conflict, many will be gripped by feelings of jubilation as others may be wondering whether they should feel humiliation. But those are wasted feelings.
More productive, perhaps, is an appreciation that lasting peace between Israelis and Palestinians is possible—notwithstanding how intractable it may seem to many intimately familiar with the intricacies of that conflict. The ICJ decision has now provided Israelis and Palestinians an opportunity to go and find it. For that, all credit must go to South Africa for bringing a case best understood as pressing the point that the macabre romp of carnage cannot continue in an endless cycle of violence as the world watches on. Now that the ICJ has authoritatively sent the message that South Africa’s allegations of genocide are not meritless—although those merits would be adjudicated at a later stage—it would be unhelpful for Israeli leaders to politically spin the decision as a win or dig in an hopes that they will win the case (a prospect that cannot be assured) during the merits phase or, worse still, soldier on (pun unintended) as they have been doing all along in relation to the plight of Palestinian people. It is not difficult to imagine that South Africa will withdraw its ICJ case, if in the meantime the normative structures of lasting peace are put in place without delay for the full realisation of the right of Palestinians to self-determination.
Israelis and Palestinians must seize the moment, and their friends must stop deceiving them that the solution to their problems lies in the use of violence.
Rebecca Hamilton, Executive Editor at Just Security and Professor of Law at American University Washington College of Law:
The ICJ’s order on provisional measures is consistent with the precedent the Court set at the provisional measures stage of the most relevant Genocide Convention case on its docket, The Gambia v. Myanmar. As such, its order landed squarely where I, and most international lawyers I have spoken to recently, expected it would. The absence of any radical departure from expectations should not, however, be taken to diminish the significance of the Court’s order. To have an international court speak, in real time, to the need to prevent genocide in the midst of an ongoing conflict, is a recent and heartening development in the atrocity prevention landscape.
Others in this forum have addressed important issues of specific plausible rights and the order’s effects on humanitarian relief. I will focus here on three key issues: first, the importance of the Court reaffirming its acceptance of erga omnes standing; second, the notable aspects of how the votes came out; third, my hope for an “under-the-radar” deterrence aspect to the Court’s order.
For as long as I have taught international law, the fact that major international human rights treaties like the Genocide Convention contain erga omnes partes obligations was something to note with a sigh of “if only.” The possibility of a state that was not itself directly affected entering the geopolitical fray to uphold the rights of people in a third country was a wonderful theory with very little practice to back it up. But in recent years, that has changed.
Most significant in this respect are the proceedings launched under the Genocide Convention by The Gambia in 2019, with respect to atrocities being conducted by Myanmar against the Rohingya. (The story starts before 2019 of course, and it is worth reading Aala Hacham, Oona Hathaway, and Justin Cole’s recent Columbia Journal of Transnational Law article documenting the move of erga omnes partes from promise to reality). In its 2022 provisional measures order in the The Gambia v. Myanmar case, the ICJ accepted The Gambia’s claim to standing on an erga omnes partes basis.
Those of us working in the atrocity prevention space have been waiting to see whether this development would be solidified in today’s order – and the Court delivered:
“All the States parties to the Convention have a common interest to ensure the prevention, suppression and punishment of genocide… The common interest in compliance with the relevant obligations under the Genocide Convention entails that any State party, without distinction, is entitled to invoke the responsibility of another State party for an alleged breach of its obligations erga omnes partes.”
What this means, in concrete terms, is that those under threat of genocide can look to any one of the 153 countries that have ratified the Genocide Convention to help them secure, in real time, a provisional measures order. One can be appropriately skeptical about enforceability of provisional measures, but at a minimum an ICJ order provides a useful foothold for those advocating for civilian protection.
Turning next to how the votes came out. Barak did not vote in lock step with Israel; he cast affirmative votes for the provisional measures of preventing and punishing incitement to commit genocide and taking effective measures to ensure the provision of humanitarian assistance. Barak should be commended for these principled votes, which will make it significantly harder for the Israeli government to delegitimize the Court’s orders.
Against Barak’s voting pattern, the dissent of Judge Julia Sebutinde, of Uganda, to each of the provisional measures was particularly striking. Sebutinde did vote in favor of the provisional measures in the case of The Gambia v. Myanmar, which was also – as noted, based on erga omnes partes standing, so that was not her concern here. Instead, she seemed to fundamentally disagree with the notion that the situation should be subject to legal proceedings at all. Her dissenting opinion characterizes the dispute as “historically a political or territorial (and, I dare say, ideological) one.” She goes on to refute several of the prerequisites for provisional measures including, most significantly, disagreeing that acts allegedly committed by Israel plausibly fall within the scope of the Genocide Convention. This is striking given the very low threshold of the “plausibility” standard, and the fact that the rest of the bench, including Barak,[1] concluded that all the prerequisites to provisional measures were satisfied.
Finally, a reflection on what matters most at the end of the day: will the Court’s order make any difference on the ground? The Israeli Ministry of Foreign Affairs has issued a press release stating that its commitment to upholding international law is “unwavering, independent of any ICJ proceedings.” But the unwillingness of the Israeli government to publicly acknowledge the relevance of the ICJ’s order does not mean that the order will not impact Israeli policy going forward. Moreover, there is plenty of dissent among Israeli lawyers (read Professor Itamar Mann’s excellent post on this point) regarding how Israel is prosecuting the war against Hamas, and plenty of concern among U.S. officials about U.S. complicity. These voices will be strengthened by the Court’s order in the many conversations that take place outside of the public eye each day.
Those who hoped the Court would order the ceasefire that South Africa requested will be disappointed by today’s order. But it would be a mistake to underestimate the impact of an international court, with broad legitimacy, concluding that the rights of Palestinians in Gaza to be protected under the Genocide Convention are plausibly implicated by Israel’s actions.
[1] Having now had the chance to also read Judge Barak’s separate opinion, an amendment is in order. Despite voting for two of the provisional measures, Barak did not, in fact, agree with the Court’s plausibility assessment. He nonetheless voted for two of the measures on a principled basis. This is unusual as a legal matter – accepting the plausibility of the rights is a precondition to the Court’s authority to issue provisional measures at all. But he is clear and thoughtful about his reasons for doing so, and his entire opinion, and in particular the “autobiographical remark” he opens with, is a worthwhile read.
Oona Hathaway, Executive Editor at Just Security and Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School:
This is a blockbuster decision, giving South Africa almost everything it could have reasonably hoped for, even winning the vote of the ad hoc judge appointed by Israel for some portions of the order. The question is what happens next.
It is true that the last such orders issued by the Court—against Myanmar in a case brought by The Gambia and against Russia in a case brought by Ukraine—have been ignored by those states. But both have become international pariahs and have paid the price for flaunting international law. If Israel does the same, it will pave the way to its international isolation.
The United States, too, has a hard decision to make. Does it continue to supply weapons and other material support to Israel when the ICJ has concluded there are plausible claims it is acting in violation of the Genocide Convention, and in the process likely violate its own obligations under the Genocide Convention? Or does it insist that Israel follow the decision of the Court as a condition of its continued support?
Rebecca Ingber, Member of Just Security Editorial Board and Professor of Law at Cardozo Law School, Co-Director of the Floersheimer Center for Constitutional Democracy and Senior Fellow at the Reiss Center on Law and Security at the NYU School of Law:
There has and will be so much said on this opinion and the ongoing multifold tragedies in Israel and Gaza. And Just Security has and will continue to publish excellent pieces analyzing this opinion and the ongoing proceedings in the ICJ, as well as the conflict itself. In the immediate term, the Court’s highlighting and rejection of dehumanizing rhetoric and its order to enable the provision of humanitarian aid to Palestinians in Gaza may compel real and ascertainable responses by Israel and other involved states.
I want to raise one specific issue that has received little coverage but frames this entire case: the focus on genocide and not on other accusations regarding potential violations of international law.
This framing is critical not only because this accusation means that the Genocide Convention provides the legal standard under which the Court will have to adjudicate this case, but also because, as a result, genocide as both a legal and colloquial concept has centered the global conversation since South Africa initiated these proceedings.
The primary reason that South Africa chose to frame its accusations in this case in terms of genocide to the exclusion of other international law is a fairly mundane one but nevertheless an issue that will be familiar to any lawyer: jurisdiction. The ICJ is a court of limited jurisdiction. It does not and cannot by law hear just any case involving a dispute of international law. It can only sit in judgment of disputes between states when they consent to its jurisdiction. And one of the ways that states consent to the jurisdiction of the court is through joining specific treaties that provide for dispute resolution in the Court. Israel and South Africa are both parties to the Genocide Convention, including Article IX, which provides that disputes over the Convention between the parties shall be submitted to the ICJ.
For those seeking to deploy the tools of courts and tribunals – international or domestic – to resolve conflicts that involve state or public official behavior, finding a forum that is empowered to sit in judgment over the matter is a complex and sometimes insurmountable feat. When Ukraine sought to hold Russia accountable for aggression and war crimes, it could not bring a suit alleging those violations of international law to the ICJ because the ICJ did not have jurisdiction over Russia for those allegations. Instead, Ukraine turned to the Genocide Convention, under which Russia had consented to jurisdiction, and alleged that Russia had violated the Convention by abusing it as a justification for its war of aggression. The use of the Convention as legal justification was neither the worst crime Russia had committed nor was it the best way to frame the conflict between Russia and Ukraine, but it was the only way to get into Court. And so Ukraine’s lawyers used the tools they had in order to do so.
Here too, in the case of South Africa v. Israel, genocide is not necessarily the right frame for the facts at hand, nor even for the main accusations states and others have been making against Israel in this conflict. And there are risks in levying such a charge. The framing of this case around genocide is so visceral to even a non-lawyer audience that it has recentered public dialogue around what is happening in Gaza. On the one hand, this means that Israel is bearing the brunt of an accusation that holds significant rhetorical weight for a people still reeling from the trauma of the very genocide for which the term was coined. On the other hand, the charge of genocide is an extremely high bar that requires intent to act for that specific purpose. Genocide in the context of this conflict would mean, for example, actions taken with the intent to destroy Palestinians as a people; I would include here seeking to eradicate Palestinians from Gaza. (Or, for that matter, to eradicate Jews from Israel or from other states in the Middle East.) Israel will have non-genocidal explanations for its actions in Gaza – namely it will argue that self-defense authorizes and perhaps even obligates a response to attacks from Hamas, most notably the grotesque attacks of October 7 in which Hamas slaughtered, raped, kidnapped, and mutilated Israeli civilians including children, but also in seeking to repel ongoing attacks from Hamas, and that as a result Israel’s actions in Gaza to eradicate Hamas do not involve intent to destroy a people. Whereas Israel might not so readily have explanations for how all of its actions comport with other international law, in particular how its strikes in Gaza and the resulting death toll involving thousands of civilians including children comport with the law of armed conflict rules governing proportionality and distinction, or how its siege comported with the same principles. Thus, raising the bar to the charge of genocide in a way lets Israel off the hook for any violations of other bodies of international law that might provide a more obvious framing for the conflict, but over which the ICJ does not have jurisdiction in this case.
Despite the extreme facts of this case, such tradeoffs are a fairly regular component of using law as a tool for accountability and change. Time will tell whether the tradeoff is worth it for actors seeking to compel Israel to change its course in Gaza. Today’s provisional measures and the threat of an eventual merits decision certainly highlight extreme rhetoric by certain Israeli officials, rhetoric that has to date not done their state any favors on the world stage and may well have served not only to inflame tensions but to encourage and sanction in some circumstances the basest of actions. There is a reason the Genocide Convention requires that states punish incitement to commit genocide along with the acts themselves. And it is quite telling that the Israeli judge, Barak, voted in favor of the Court’s order to Israel to take all measures within its power to prevent and punish the direct and public incitement to commit genocide of Palestinians in Gaza as well as the order to enable provision of basic needs and assistance.
Chimène Keitner, Martin Luther King Jr. Professor of Law at the University of California Davis School of Law; former Counselor on International Law at the U.S. Department of State:
There was something surreal about watching Donoghue read from the text of the Genocide Convention on the eve of International Holocaust Remembrance Day. Jewish lawyer Raphael Lemkin worked tirelessly to ensure that genocide, a term he created, would be recognized as an international crime. Israel was one of the 41 original signatories of the Genocide Convention, which it ratified in 1950. This is one reason that most Israelis find it inconceivable that they are being accused of genocide, and why Israel’s leaders have dismissed the case as a “libel.”
Yet the Court’s thoughtful and well-reasoned opinion should give them pause. Without in any way detracting from the unspeakable horrors of October 7, the scale of human suffering in Gaza demands an international response. Although Israel has long been antagonistic towards the U.N. and its organs and felt unfairly targeted by U.N. criticism, dismissing the Court’s order as politicized would be a mistake. The us/them mentality that has shaped (and been shaped by) the conflict for decades, and the absolutist rhetoric by Israeli leaders quoted in the opinion, have put Israel on a dangerous trajectory.
The Court’s order is aimed at protecting the rights of Palestinians in Gaza, and hopefully it will accelerate the provision of much-needed humanitarian relief. It should also further empower those parts of Israeli society that value democratic ideals to call out, and to condemn, dehumanizing rhetoric and policies. I have no hope that Hamas will heed the Court’s call to release all the hostages. I have some hope that, at least behind the scenes, Israel will take this order seriously and recognize that framing its operations as technically complying with the laws of war—whether or not this is accurate—is insufficient.
If the Jewish international lawyers who survived World War II (including Lemkin, Hersch Lauterpacht, and Louis Sohn) taught us anything, it is that all human lives are worthy of dignity and protection.
Yousuf Syed Khan, Senior Lawyer with Global Rights Compliance:
Overall, today’s Order issued by International Court of Justice (ICJ) reveals and underscores the urgent need to cease the perpetration of pernicious starvation crimes in Gaza.
At present, nearly the entire population of Gaza is faced with starvation, with over 93 per cent of the population facing crisis levels of hunger, dehydration, or disease. This translates to the fact that more predictable deaths are imminent. The entire besieged enclave has basically been pushed to famine, with predictions of deaths from starvation and disease now being greater than deaths resulting from direct military action. Even prior to this current escalation in hostilities, some 80 per cent of Gazan civilians were dependent on humanitarian aid. Recent events have, of course, compounded their precarious situation.
A large part of the present case before the ICJ rests on article 2(c) of the Genocide Convention, or creating conditions of life that will bring about the destruction of Gazan civilians. Here we have an inextricable link to starvation crimes and associated unlawful conduct.
The key provisional measures demanded by the Court today were to stop such starvation, provide immediate and effective relief, and prevent the expulsion and forced displacement of Gazans from their homes (which I had written about three months ago here), and also conduct that appears to be linked to what may be described as the “starvation-displacement nexus” (here).
Moreover, although there was no preliminary measure for a ceasefire, a lull in hostilities between the belligerents may in fact be practically required in order to even comply with the measures ordered today, ie, to take “immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip”. In practice, the sustained and unhindered flow of humanitarian relief cannot exist while hostilities continue to rage on.
Another open question after today’s decision is with respect to third States who may be funding or otherwise supporting Israel’s actions in Gaza; such support, albeit not addressed by the Court, may further give rise to a discussion as to how their actions will need to be curtailed or modified such that the preliminarily measures ordered can even realistically be adhered to.
Finally, by 15 votes to 2 – Israel is to take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of the Genocide Convention. This decision underscores the need for independent and impartial investigations, particularly such as those investigations mandated with increased frequency by the Human Rights Council that are assigned to “collect, consolidate, preserve, and analyse” information and evidence that may amount to international crimes, including starvation as a method of warfare and concomitant crimes, including forced displacement, collective punishment, and crimes against humanity (Deportation or forcible transfer; persecution; or other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health, the latter under which Israel’s alleged starvation-related conduct may also fall given the tangible impact of aid denials on the health of Gazan women, men, and children).
Jeremy Konyndyk, President of Refugees International; former Director of USAID’s Office of U.S. Foreign Disaster Assistance:
Today’s order was an important one for the humanitarian catastrophe in Gaza. The Court rightly affirmed that the situation is disastrous, and that the inability of humanitarian actors to adequately aid civilians in Gaza creates a concrete risk of irreparable harm if immediate measures are not taken to address the suffering. Much of Israel’s argument in its defense before the court centered on its claims that it is taking all reasonable measures to facilitate the flow of aid. The Court’s order – and the overwhelming 16-1 majority on this portion of the order – indicates rightful skepticism toward that argument.
Whatever one thinks of the larger legal merits of South Africa’s case, it has been very useful in forcing Israel to publicly and factually attempt to defend its record on humanitarian assistance. Refugees International deployed a team to the region earlier this month to assess the obstruction of humanitarian action, and extensively interviewed frontline humanitarian operators, officials from various governments, and Palestinians who have been living under the crisis.
The picture that emerges clearly from our investigations – which we will outline more fully in a forthcoming report – is one of routine and purposeful blockage of humanitarian assistance by the Israeli government. This obstruction takes the form of siege tactics that deprive the population of critical services and goods necessary for their safety and survival; willful refusal to establish a viable “deconfliction channel” with humanitarian groups to protect them from being struck; routine denials of requests to make aid deliveries within Gaza, particularly to the hardest-hit areas of the north; and the rejection of standard humanitarian supplies such as tent poles, medical supplies, and water system materials during Israeli inspections of aid trucks. In addition, Israel’s indiscriminate bombing campaign has widely struck humanitarian sites and facilities, as well as numerous sites sheltering displaced Palestinians.
These actions by the Israeli government constitute a pattern of aid obstruction that runs directly contrary to Israel’s claims before the court. It will be critically important that Israel make major, material changes to both its battle tactics and its humanitarian engagement before it is required to report back to the Court in one month’s time. With famine on the immediate horizon, the human cost of ignoring the Court’s order could be enormous.
Eliav Lieblich, Professor of Law at Tel-Aviv University’s Faculty of Law:
In my view both parties should not be extremely happy with this decision, if happy is even a term to be used in such circumstances.
Israel’s main tactic in the proceedings was to contextualize the civilian harm in Gaza within the armed conflict with Hamas and the characteristics of the fighting there. The Court did not really grapple with these or most other counter-claims at this stage, but opted to proceed from the level of harm in Gaza, as evidenced by statements by U.N. bodies, coupled with statements by some Israeli leaders, to establish plausibility of risk to rights enshrined in the Convention. In this sense, the Court followed South Africa’s submission. I would also note the extensive reliance by the Court on statements by U.N. bodies in its prima facie determinations.
On the other hand, South Africa might not be thrilled with the fact that its more far reaching measure – an immediate ceasefire – was not granted. The Court did not elaborate here, and here the Israeli government can be somewhat satisfied that perhaps it managed to convince the Court in its arguments.
In terms of the operative orders themselves, Israel would probably claim that it is already complying with them, or that it will make some adjustments (to the extent that the Netanyahu government would not lash out at the Court altogether – something that remains to be seen).
In any case, I think that in ICJ decisions the important question is less about the operation of formal orders, but more about how they can shape the international narrative, and this decision is no exception.
Fionnuala Ni Aolain, Executive Editor at Just Security and Regents Professor Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; former U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism:
This decision by the ICJ will be assessed by many on a particular “bottom line”, namely whether or not the word “ceasefire” has been used in the text of the judgement. That is the wrong test. Instead, the powerful and all-encompassing phase “take all measures within [its] power” leads to the conclusion that the State of Israel must in fact fundamentally reassess and revisit its conduct of hostilities in Gaza to ensure it is not found in breach of the Genocide Convention when the Court assesses the case on the merits.
A particularly compelling part of this provisional measures decision is the overarching narrative that comes from the Court. The Court clearly acknowledges the horror of October 7th, but the factual record marshalled to address the Parties is the ongoing horror of the situation in Gaza. The Court brings forcible displacement, death, the lack of access to food and water, and the situation of pregnant Palestinian women to the fore. It leans heavily into the statements of the U.N. Relief and Works Agency, the World Health Organization, and the words of the Under-Secretary General for Humanitarian Affairs and the Secretary General in a way that should bring pause to the government of Israel and other States. The core thread of this decision is the Court’s concern about the situation of the people it finds to be “protected” under international law, namely the Palestinian people. In contrast, the words of Israeli leaders and decision-makers quoted in the decision underscore the concern that the President and Defence Minister of Israel are using terms that constitute incitement to genocide under international law. There is no comfort for Israel in seeing those words quoted in a provisional measures decision of the ICJ.
The Court’s emphasis on the totality of the provisions of the Genocide Convention, not just genocide but conspiracy to commit genocide; directing and public incitement to commit genocide; attempting to commit genocide; and complicity in genocide brings our attention to the full panoply of potential liability for Israel to the fore. I discerned a particular emphasis on incitement to genocide in the way the most senior political figures in the country were quoted giving a particular prominence to the words that have been used in the past months and not only the acts committed during the course of hostiles. We will all be watching for the required report back to the Court, which in a way, solidifies the ongoing role this Court will play in shaping the actions on the ground.
Nicholas Rostow, Senior Partner at Zumpano, Patricios & Popok PLLC and Senior Research Scholar at Yale Law School:
Earlier today, the ICJ issued its decision on South Africa’s request for the indication of provisional measures—in effect, an injunction—against Israel in regard to alleged violations of the Genocide Convention in the context of the Israel’s use of force in response to the Oct. 7, 2023, Hamas-led attacks in Israel. The Court found that it had jurisdiction because South Africa and Israel are parties to the Genocide Convention but disagree on the interpretation and application of that Convention in the Gaza context. The Convention provides for ICJ jurisdiction in such circumstances.
The Court reminded the parties that, at this stage of proceedings, its decision is preliminary and without prejudice to final decisions about jurisdiction, facts, and merits. The Court concluded that it had a basis for indicating provisional measures based on the plausibility of South Africa’s claim that Palestinian rights under the Convention might be at risk in Gaza and that therefore protective measures were in order. In this connection, The Court found that the Palestinian people were a distinct group within the meaning of the Genocide Convention and thus entitled to protection against genocide. At the same time, the Court noted that it was not obliged to indicate the provisional measures South Africa had requested.
By majorities from 15-2 to 16-1, the Court then required Israel to take all steps within its power to prevent acts of genocide within the meaning of the Genocide Convention—“killing members of the group [Palestinians], causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and imposing measures intended to prevent births within the group.” Israel is to prevent and punish “direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip.” Israel is to ensure that its armed forces do not commit genocide. Israel is to ensure to the extent it can the provision of humanitarian assistance to the people of Gaza. Israel is to protect evidence of genocide. And Israel is to report within one month from today on its compliance with the Court’s order.
The Court did not explicitly say that its requirements were subject to intent. But the Genocide Convention requires “intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such.” Therefore, one may safely conclude that, so long as Israel does not intend to commit acts that violate the Genocide Convention, conducting military operations in accordance with the laws of war in Gaza or elsewhere is permitted. Unintended civilian deaths that occur in the course of military operations do not constitute either war crimes per se or acts of genocide.
The Court emphasized that its conclusions were based on resolutions, reports, and statements by U.N. bodies and U.N. and other officials in the public record. The Court did not take such reports or words as definitive. It emphasized that none of the facts alleged could be independently verified at this time. This statement by the Court applied even to U.N. estimates of the size of Gaza’s population.
ICJ judges are elected by, and responsive to, the U.N. General Assembly and Security Council. The ICJ thus is a political body. Its judgments, especially in cases such as the one brought by South Africa, must be understood against this background. As is well known to those who have served in foreign ministries, some judges consult with, and take direction from, their governments prior to issuing decisions.
What did the Court actually do? At bottom, it reminded the parties and the world that “thou shall not commit genocide” and, to the extent of one’s capability, shall protect people at risk of genocide. It reminded all fighters that they are obligated to conform to the laws of war—“international humanitarian law”—something we know that Hamas and its associates do not do. As a matter of international law and Israeli domestic law, including decisions of Israel’s Supreme Court, Israel must comply with IHL and, in the words of Israel’s President quoted by the Court, does so. And the Court called for the unconditional release of the hostages seized by Hamas on Oct. 7, 2023.
The Court thus did not indicate the provisional measures requested by South Africa. These included finding that Israel had breached the Convention and owed the Palestinian people reparations for such breach.
The Court did not find that Israel had violated or was violating the Genocide Convention. Thus, Israel should have no difficulty complying with today’s order by the ICJ.
Yuval Shany, Hersch Lauterpacht Chair in International Law and former Dean of the Law Faculty of the Hebrew University of Jerusalem; former member of the U.N. Human Rights Committee:
The Court order generally meets the expectations of most experts. It was unlikely that the Court would refrain from issuing any order, and it was also unlikely that the Court would order Israel to stop the war. There are two somewhat interesting aspects of the decision to further consider, however: First, The Court’s evasive language on plausibility, holding that “at least some of the rights claimed by South Africa and for which it is seeking protection are plausible” (para. 54) – without explaining which of the rights are plausible. This effectively kicks even the plausibility can down the road. Second, the one month reporting obligation that would create an opening for repeat litigation of provisional measures, as has happened in the Armenia/Azerbaijan case.
Photo credit: International Court of Justice courtroom during the reading of the Order of the Court on the request for the indication of provisional measures submitted by South Africa (South Africa v. Israel), Friday, January 26, 2024 (Courtesy of the ICJ)
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