ICJ verdict urges Israel to reflect on execution of its military campaign

The perceived restraint is not a free pass. Despite its collective trauma, Israel must try to overcome feelings of revenge and hatred, and expunge them from its offensive.

The case that South Africa brought to the International Court of Justice (ICJ), accusing Israel of committing genocide against the Palestinian people in Gaza touches on the instrumentalisation, weaponisation, obscurity and power of international law. Though it is seemingly a large topic the following discussion fits within a broader context that cannot be understood outside of the lived experience of Israelis and Palestinians.

The ICJ, the principal judicial organ of the UN, is a widely respected, and universally recognised institution that deals with the legal responsibility of states and addresses their concerns. South Africa’s accusation focused the world’s attention on the Court. Given the polarised debate that has accompanied this tragic and brutal war, no one was surprised that the charge ignited visceral reactions that ranged from indignation at South Africa and the Court to fierce vindication of them.

Israelis and Jews worldwide, who view the Holocaust as the paradigmatic example of genocide, are particularly sensitive to what they believe are illegitimate extensions of the concept. Many are incredulous that a concept invented by a Jew after the Holocaust – an evil, to their eyes unprecedented and unsurpassed, and to which Israel’s very creation is tied – should be applied to Israel’s actions in Gaza.

That is understandable. Israel responded to a massacre in its territory of the greatest number of Jews since the Holocaust, to unspeakable atrocities perpetrated with gleeful Jew-hatred by members of terrorist groups with undisguised genocidal ambitions.

For many Palestinians and many of their supporters who advocate for Palestinian self-determination, on the other hand, to describe the catastrophe in Gaza as genocide captures their moral outrage and seems to them to shine the brightest light on the horror of over 25,000 deaths, complete families amongst them, and the catastrophic humanitarian disaster that is now escalating. These figures are from the Gaza Health Ministry, which does not distinguish between civilian and fighter casualties in its reports. Israel claims that roughly 9000 of that number are fighters from Hamas and other armed groups.

South Africa, Genocide and the ICJ

Some people are puzzled as to why South Africa was entitled to bring the case. It did so as a party to the Genocide Convention, which has a clause allowing a state to bring a dispute to the Court when it believes another state has committed genocide or is in danger of doing so. Both those states must be parties to the Convention. Israel has been a party since 1950 and South Africa since 1998. As a party to the convention, Israel automatically consents.

South Africa claimed it was obliged to bring the case because states that are party to the conventions are required not only to punish genocide but to also to prevent it. It may have had other motives, but they are irrelevant to its entitlement and justified sense of obligation to mount its case. The duty to prevent genocide is erga omnes, meaning they are owed to the entire international community and the international community has an interest in ensuring compliance with such obligations. Aiding and abetting an internationally wrongful act is also considered an internationally wrongful act. The Court indeed emphasised the common interest on states to ensure the prevention, suppression and punishment of genocide (paragraph 33).

The ICJ has heard other cases brought to it under the Genocide Convention. Previous cases include Croatia against Serbia and Bosnia and Herzegovina against Yugoslavia. Two noteworthy cases are pending. One was brought by Ukraine against Russia for allegedly unlawfully claiming genocide by Ukraine as a reason to invade Ukraine. The other was brought by The Gambia against Myanmar alleging that it had committed genocide against the Rohingya.

The Court found it had jurisdiction to hear that case even though The Gambia wasn’t involved in the armed conflict. That paved the way for South Africa to bring this case (a third-party claim). It was therefore no surprise that the Court found South Africa has standing. (See Judge Xue Declaration).

The Genocide Convention is amongst the few Conventions that includes this kind of compromissory clause referring disputes to the ICJ. That makes it an appealing venue to an international community wanting accountability: it seems to be the easiest and quickest route to justice and to preventive action of the kind sought by South Africa – a ceasefire being the most serious of them.  

Hierarchy of crimes

Although the right to bring a case concerning genocide is quite straightforward, the threshold for establishing genocide under the Convention is high. It requires establishing that there has been an intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such (this last, important qualification is often left out), through specifically enumerated acts. The defining characteristic of this crime is not the number of deaths but the intent of the perpetrator, whose aim must be to annihilate the group, in whole or in part. It is therefore directed at people, not as individuals, but as members of a group.

It is not expected that the case against Israel will succeed at the merits stages because of the high threshold for establishing intent. That might change. An increasing number of international lawyers are pressing to widen the definition of genocide to include more target groups, and to free the concept from the narrow criteria imposed when the Holocaust is its paradigm.

This has partly been influenced by growing demands that states be held accountable for atrocities, and by the perception that the concept of genocide was conceived by Western states in a way that would put their colonial misconduct beyond its reach. This perception broadly fits into a recognition of the unequal structures that exists within the state-centric nature of international law, which is primarily drawn along the north-south divide. Even at this early judicial stage, the fact that South Africa’s case is being heard has been described by some legal commentators as a momentous victory for the “global south”.

Important and valid though many of these considerations about the Eurocentric origins of the concept and its applications are, that does not mean that genocide is the correct frame through which to assess Israel’s conduct. There are two reasons for this. First is the high evidentiary burden that is required if genocide is the appropriate concept to describe Israel’s alleged crimes. It is an evidentiary burden that Ad Hoc Judge Barak, appointed by Israel to sit on the bench for this case, believed is justifiably high but was not met by South Africa (paragraphs 29-32).  

The second is that an attribution of genocidal intent to Israel does not seem to ring true or capture the complex nature of the conflict. I am not attempting to absolve Israel of responsibility for potentially violating international law. Its conduct in Gaza suggests numerous violations, but not necessarily genocide.

What appears to be its reckless disregard of the suffering it has inflicted on the civilian population of Gaza seems to be more likely to be explained by the moral blindness of revenge than by a relatively clear-eyed intent to destroy the Palestinian people. That applies also to the horrific, blustering statements of some of Israel’s leaders, which were cited as evidence of intent.  

War crimes and crimes against humanity are the better frames through which to assess such conduct. There seems to be a growing sentiment, however, that war crimes and crimes against humanity are not legal categories severe enough to capture the horror of Gaza, that only genocide will do.

Furthermore, war crimes and crimes against humanity are not within the jurisdiction of this Court. They, along with genocide and the crime of aggression, are under the jurisdiction of the international criminal court. In March 2021 the ICC opened an investigation into international crimes committed by individuals in Israel and Palestine since 2014, including Israel and Hamas’ conduct in the latest and most deadly hostilities.

It will, however, be years before there are specific cases against individuals. Nonetheless devaluing the moral gravity of war crimes and crimes against humanity in the interests of securing a quick judgment is a dangerous mistake. As, of course, is compromising the integrity of the concept of genocide.

The perception that genocide is the “crime of crimes” obscures what is at issue in two ways. In one direction some parts of the international community (primarily global south) believes that there needs to be a finding of genocide to prove to the world how “morally bad” Israel’s conduct is. In the other direction, some parts of the international community (primarily the global north) believe that what is happening in Gaza bears no resemblance to the Holocaust or Rwanda and it is therefore absurd to classify it as genocide.

Provisional Measures

The symbolism was therefore not lost, when the latest development in the case came on the eve of International Holocaust Remembrance Day. On Friday  January 26, less than one month since South Africa’s genocide application to the Court against Israel and only two weeks after the oral hearings, the ICJ delivered its opinion on South Africa’s request for provisional measures.

That this came so quickly highlights the Court’s sense of the urgency and importance of the situation. The emergency measures are an interim ruling, reflecting the preliminary stage of the case. The court did not decide whether Israel committed genocide. That will be decided at the merits phase of the case, which might take years to adjudicate.

Plausibility test

The bar for imposing preliminary orders is relatively low. The Court did not need to find that the rights South Africa is seeking to protect definitively exist. It had only to find that they are plausible. That is a much lower bar than the high burden of proof South Africa will have to meet at the merits stage, which requires that the only inference that can be drawn from Israel’s actions and the statements of its relevant leaders is that they express a genocidal intent.

At this stage, the Court ruled that South Africa proved that Israel plausibly violated the prohibition on Genocide (paragraphs 66 and 74). A number of the judges expressed their frustration at the problematic nature of the low threshold of the plausibility test.  However, the order is consistent with the Court’s prior granting of provisional measures in the Gambia v Myanmar and Ukraine v Russia cases.

It solidifies further what the Court perceives to be its role in the prevention of genocide. The Court’s order is general and it is not explicit in stating which of the claims brought by South Africa are plausible (paragraph 54). To prevent the possibility of a genocide, therefore, the Court felt itself to be under an urgent imperative to order Israel to take specific actions perceived to be necessary to avert the risk of irreparable harm.

Given the severity and the extent of the humanitarian disaster Gaza is experiencing, coupled with the low burden of proof at this procedural stage, the measures the Court granted did not come as a surprise. The Court ordered six out of the nine provisional measures requested by South Africa, most often by 15:2 majority. The near-unanimity on the order is striking and demonstrates the judges ability to find agreement and common ground on many of the legal issues.

The political and legal significance of this should not be underestimated. The measures are similar to the Court’s order in the Gambia v Myanmar (paragraph 86) and restate Israel’s obligations under international law. They refrain from going into much detail as to what Israel should and should not do to fulfill those obligations. This cautious approach was probably wise: balancing the prospect of enhancing compliance against the risk of evasion due to its vague formulation. It is worth unpacking the measures:

(i)refrain from acts under Genocide Convention

The Court did not identify which claims made by South Africa were plausible. It is therefore highly significant that it specifically listed certain acts of concern within Article 2 of the Genocide Convention: (a) killing members of the group; (b) causing serious mental or bodily harm to members of the group;  (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group (paragraph 78).

Israel, of course, thought this order unnecessary claiming that insofar as it had committed any of those acts, it was not with a genocidal intent. But the fact that the Court found it necessary to specify those acts, warrants the inference that it found it plausible that Israel had done so or was in danger of doing so, rather than being plausibly guilt only of acts of incitement to genocide.

(ii) Prevent and punish incitement to genocide

It was expected, even by Israel, that the Court’s order would include a measure relating to incitement in the light of the many damming statements by Israeli politicians and leaders. In the lead up to the case Israel’s Attorney General, Gali Baharav Miara, announced that she would be taking steps to investigate several alleged cases of incitement.

The Court noted such steps within the Israeli legal system are encouraging, but they are not enough. It is significant that Judge Barak, joined the majority and was willing to support this measure. Even though Barak disagrees with the majority that South Africa’s claims meet the plausibility threshold, he voted in favour “in the hope that the measure will help to decrease tensions and discourage damaging rhetoric” (paragraph 44).

Judge Nolte, in his declaration, notes that it is the allegation to incitement that he considers more plausible that that of genocide. In this connection, however, it is important to remember that the claims made by South Africa in its application to the Court are not the equivalent of indictments against individuals for the purpose of individual criminal responsibility.

The ICJ is concerned with state responsibility under a specific treaty regime and therefore its focus is on incitement by the state of Israel via its agents. At this stage, the Court does not seem to have been convinced by Israel’s arguments that the statements do not represent the state, notwithstanding with the numerous confidential documents Israel submitted.

The importance the Court attached to the possibility of incitement to genocide was reflected in the fact that Judge Donoghue, President of the Court, read at length statements by the most senior political figures in Israel. They were not from the radical fringe members of the current government. They were by the Defence Minister Yoav Gallant, President Isaac Herzog and then Minister of Energy Yaakov Katz. To hear them read to the court was powerful and chilling, and Judge Donoghue’s tone was justifiably harsh. Nonetheless, all of those statements could be construed as blustering, vengeful incitement to massacre and crimes against humanity, rather than to genocide.

(iii) allow humanitarian assistance 

The Court ordered “immediate and effective measures to ensure the provision of urgently needed basic services and humanitarian assistance”, thereby, implicitly rejecting Israel’s claim that it allows aid, as insufficient. It is telling that this is the second measure for which Judge  Barak voted, explaining he was “guided by my deep humanitarian convictions and the hope that this will alleviate the consequences of the armed conflict for the most vulnerable”(paragraph 44).

The centre of South Africa’s case is the claim that the siege and the humanitarian situation – one million people lacking shelter and sanitation – creates the risk of contributing to the destruction of a people through famine and disease. The argument is that because the siege cannot be plausibly explained as being directed against Hamas, it must, by its nature, be directed against the Palestinian population as a whole.

Put aside for the moment the legal substance of South Africa’s claim and whether the genocide lens obscures the legal analysis which is better focused on war crimes, and in particular, whether it constitutes starvation as a method of warfare. In bringing its case to the Court, South Africa has succeeded in drawing political, legal and public attention to the desperate humanitarian situation in a way that has a chance to effectively compel action that Israel would not otherwise not have taken (paragraph 72).

(iv) preserve evidence

This measure concerns the preservation of evidence relating to potential violations under the Genocide Convention. It reflects the foundational value of accountability. It is interesting that the Court ordered this measure but did not grant South Africa’s request that Israel allow access to Gaza by fact-finding missions.

This is most likely because of the tense relationship between Israel and such UN Commissions of Inquiry in the past rather than an expression of the court’s judgement on the integrity of those Inquiries. It gave considerable weight to UN statements and reports, including observations by Special Rapporteurs in making its determinations.

(v) submit report to court in one month.

Israel must submit a report to the court in one month on the steps it’s taken to implement the measures. Given Israel’s preparedness to engage thus far with the case, it can be assumed that it will submit such a report. The world will be waiting and watching. This measure strengthens the ongoing role of the Court in this war.

Ceasefire

Significantly, South Africa’s strongest request, for the Court to order Israel to “immediately suspend its military operations in Gaza” (paragraph 144) was not granted as the Court did in the Ukraine v Russia case (paragraph 86). It was widely expected that the Court would not order this measure because Hamas, a non-state actor, is not a party to the case and therefore the Court would in effect be imposing a ceasefire only on one side of the ongoing armed conflict, thereby impinging on Israel’s rights and obligations to protect its own population.

It is very important to note that the Court did not mention this request. That is probably because it wanted to avoid engaging with thorny legal issues relating to Israel’s right to self-defence, which, on some interpretations, depends on whether Gaza is considered in law to be under Israeli occupation. Some observers were disappointed that the Court did not do more to explain its very interesting omission.

Binding nature

The provisional measures order by the Court are binding. The Court does not, however, have enforcement power. Coercive measures fall to the Security Council which is obviously unlikely to impose them given US veto power. Nonetheless, the political pressure on Israel to comply with the order will be substantial. It is worth noting, that the Court made no reference to South Africa’s request in this regard in relation to its own obligations as a third-party state to prevent genocide. States nonetheless have now been put on notice. Italy announced it will stop supplying weapons to Israel. Litigation within domestic legal systems is also anticipated.

Response

The response to the ruling has been mixed, each side claiming a partial win based on their own reasoning and expectations of the Court. Neither side was granted the big legal remedies it requested (Israel argued that the case should be dropped based on lack of jurisdiction; South Africa requested a cease fire). Yet both were satisfied, and the ruling is perceived to be fair, because it could have been much worse for each side.

The perceived restraint and moderation of the Court should not allow us to lose sight of the fact that it found overwhelmingly that it is plausible that Israel is committing or is in danger of committing genocide against the Palestinians and that the Palestinians are now a protected group for the purposes of the Genocide Convention.

This is damning in itself and will have an impact. It also sends a message that by an overwhelming majority, the Court repudiates the description of the case as “meritless” by the US, “nonsense” by the UK and a “libel” by Israel. For that reason, it is seen as a victory for the global south.

The measures themselves may well have been vague in an attempt to create a majority judgment, yet the narrative the Court created around those measures is one of the extraordinary suffering of Palestinian civilians. In that sense, it echoes South Africa’s narrative as presented in its application to the Court. It places the global concern for the humanitarian situation of Gaza in a legal framework with the aim of amplifying the urgent need of relief and aid.

Importantly, it did not shy away from acknowledging the horrors of October 7. The terrible nature of the events of that day was detailed most significantly and fully by Judge Barak and formed the basis for his view that the appropriate “legal prism” for the situation is international humanitarian law (IHL) and not the Genocide Convention (paragraphs 25-26). The majority took the unusual step of calling upon Hamas and other armed groups for the immediate and unconditional release of the hostages (paragraph 85).

Interestingly, Israel has not rejected the order outright and its response has focused on the fact that there was no order for cessation of hostilities. That focus is partly an attempt to minimise the severity of the judgment and the damage caused by the Court’s orders. It can claim that the Court’s judgments has not been a major defeat. Evasive though such an approach is, it can be welcomed if it does indeed curb Israel’s conduct, making it compliant with international law, more specifically IHL, although that is not directly the body of law under scrutiny by the Court.

It does, however, have the danger of being self-deceivingly short-sighted if Israel sees it as permission to continue fighting as it has been on the grounds that it has all along been abiding by IHL. One can perhaps hope that behind closed doors Israel will find the ability for self-reflection, and that alongside the very real trauma and grief that its citizens are experiencing collectively and individually, it will be able to overcome the powerful feelings of revenge and hatred, expunging them from the execution of its military strategy.

With that self-reflection may come deep and painful shame that this is the moral place where Israel now finds itself. That may galvanise civil society to renew its opposition to the mendacious and wicked government that took it to this place and which has no clear path towards moral, political or even strategic clarity.

There is no direct enforcement mechanism for the Court’s provisional measures order but there is obviously the political calculus. Israel decided not to ignore the Court (as it had done in the past) and has instead engaged with it. This may not be the ideal route to stop the killing and to release the hostages, but it seems to be the most powerful tool available. It testifies to the relevance and importance of international law while acknowledging the limits imposed by its inevitable politicisation. 

This article is based on a talk given to the New Israel Fund