A Slap in the Face for Israel at the International Court of Justice

The order for the indication of provisional measures issued on 26 January 2024 by the International Court of Justice (ICJ) in the case between South Africa and Israel constitutes a serious judicial setback for Israel even though it does not directly demand an end to the Israeli offensive. Indeed, the risk of genocide is clearly recognised, and the measures ordered, were they to be respected, should lead to the termination of Israel’s operations as the South African party was quick to point out. This decision has indirect consequences for all states parties, and for the United Nations, since the court has confirmed the quality erga omnes partes¹ of the obligations deriving from the 1948 Genocide Convention (§ 33). It is thus important not to minimise the weight of that court order, but to highlight its contents and implications.

The risk of genocide is established

While it is true that, in its application, South Africa claims that acts of genocide have already been committed, it is not surprising that in the present context, when the court is constrained by time and by the specificity of its mandate (…), it should confine itself to asserting the existence of a risk of genocide (§§ 60–74). For the Court to have reached this conclusion is already a victory for Pretoria, considering the Western reluctance to entertain the theme of genocide. (…) The order, no doubt the result of a compromise, was approved by an overwhelming majority of judges. None of the ‘Western’ judges voted against it, when the Court, presided over by an American judge, included German, French and Slovakian magistrates, as well as one Australian, all of whom, while they are (…) independent and do not represent their country, might well have been sensitive to its diplomatic posture.

It is essential to explore the way in which the Court justifies its conclusion that there exists a risk of genocide. Concerning those acts already accomplished, the Court bases its conclusions to a large extent, as it was invited to do by South Africa, on the warnings issued by the United Nations and other international bodies, citing their most prominent declarations (§§ 47, 48, 49, 53, 67, 68, 69; this last being a statement by the Commissioner General of UNWRA on 17 January 2024, after the end of the hearings).

The Court considers that the civilian population in the Gaza Strip remains extremely vulnerable. It recalls that the military operation conducted by Israel after 7 October 2023 has resulted, inter alia, in tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities and other vital infrastructure, as well as the displacement on a massive scale (…) At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating. The WHO has estimated that 15 per cent of the women giving birth in the Gaza Strip are likely to experience complications, and indicates that maternal and newborn death rates are expected to increase due to the lack of access to medical care. (§§ 70–71).

About the intent to destroy the group of Gaza Palestinians, the Court, basing itself on (…) the South African application, quoted explicit declarations by Israeli officials which had justifiably alarmed many observers. Thus (…) the order include statements made by Yoav Gallant, Defence Minister, Isaac Herzog, President of Israel, Israel Katz, Minister of Energy, recently appointed Foreign Minister. (§§ 51–52).

Finally, it is henceforth established that the group of Palestinians, besides being a people benefitting from the right to self-determination, is also a protected group within the meaning of the Genocide Convention. This point, though dealt with briefly (§ 45), should no longer be open to dispute.

Israel’s arguments are not accepted

It could be feared that the Court might give credence to the argument of self-defence used by Israel to justify its Gaza offensive. Before the Court, Israel associated this argument with that of its will to limit civilian casualties in Gaza. Considering the stance taken by Western countries and by the European Union, generally supporting the self-defence thesis, the Court might have been sympathetic. It might have reconsidered its 2004 opinion, in which it stated clearly that self-defence was not available in reaction to violence originating within an occupied territory. Indeed, the Court makes no mention of self-defence except to recall the Israeli argument (§ 40).

This prolongs the failure of that argument before the Security Council, where a resolution along those lines tabled by the United States on 25 October 2023 failed to pass. Consequently, it is wrong to claim that the Court, by not explicitly ordering a cease-fire, recognised Israel’s right of self-defence, since nothing in the reasons provided by the Court allows this interpretation.

The termination of the offensive is indirectly ordered

The Court did not explicitly order the termination of the Israeli offensive. This could justifiably disappoint the Gaza population and those who are subject to increased oppression in the West Bank and East Jerusalem. But this decision is in line with the Court’s usual display of caution when it gives a ruling based on the Genocide Convention.

Thus, in the Bosnian and Gambian cases, it did no more than indicate to the States involved (Serbia and Montenegro, Myanmar) their obligation to prevent genocide and to make sure it was not committed by their armed forces.² It is true that, in the case between Ukraine and Russia, the Court went further but the question put to it was quite different and that cannot therefore be considered a true precedent.³ Ukraine was asking the Court to decide whether Russia’s accusation of genocide in Ukraine was justification for a military operation on Ukrainian soil. Adjudicating urgently in that case as well, the Court agreed with Kiev and ordered Moscow to “immediately suspend” its military operation.

In reality, respecting the measures ordered here would imply, for Israel, the suspension of its offensive. This is because of the characteristics and nature of the terrain on which that offensive is being carried out. The Court demands (…) that Israel prevent genocidal acts and make sure that such acts are not committed by its army (measures 1 and 2). And what are these acts? Those identified in article II a), b), c), and d) of the Genocide Convention:

Killing members of the group,
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,
Imposing measures intended to prevent births within the group.

Now, considering the specificity of the Gaza Strip (a constricted space, very densely populated) and the nature of the Israeli military strategy (massive bombings, targeting hospitals, drastic siege), only the cessation of the offensive would enable Israel to obey the Court’s order. This holds true as well for the basic services and humanitarian aid which must be allowed to be supplied (measure 4). Finally, we must note that the Court demands that Israel prevent and punish incitements to commit genocide (measure 3). Considering the statements quoted by the Court in (…) its order, (…) Israeli officials could be under investigation in their own judicial system, while the continued dissemination of genocidal language alone could be enough to establish the responsibility of the State.

The consequences of the order

The Court does not intend to stop there. It declares that it will re-examine Israel’s behaviour since the order demands that a report be submitted to the Court by that state within a month (measure 6 and § 82). Again, this attests to its conviction that the population of Gaza run an imminent risk of genocide. With regard to the contents of the report submitted, which will be brought to the knowledge of Pretoria, it is quite possible that the Court may be led to stiffen the measures presently ordered.

Besides which, the statute of the International Court of Justice, an integral part of the UN Charter, states that provisional measures shall forthwith be given to the Security Council (article 41§ 2) which meets on 31 January. Considering the US reaction to the Court’s order, it is unrealistic to hope that the Council will derive from it a resolution demanding a cease-fire along with sanctions to impose it.

However, the General Assembly, considering the expected veto at the Security Council and the confirmed risk of genocide, could/should (…) reassert its previous stand (12^th December resolution, calling for an “immediate humanitarian cease-fire”) and recommend an arms embargo or even economic sanctions against Israel. The Court’s order could, in that respect, have a powerful justificatory effect.

As for the member states, if they wish to respect the spirit of the order, and – for some of them – avoid the risk of incurring (…) responsibility, they should stop assisting Israel, militarily, economically, and diplomatically in its Gaza offensive. They might, based on a future General Assembly resolution, or without such a basis, adopt measures of retorting (diplomatic measures) or such countermeasures as economic sanctions in order to prevent what is now a (…) risk of genocide.⁴

The Court’s order is a judicial act which does not invite them to do so (this would be outside the Court’s competence) but it has the effect of reminding the parties of the obligations deriving from the 1948 Convention. This is no doubt why we are witnessing a media blackout on the order and its implications.