Today the International Court of Justice issued its ruling on “provisional measures” in the case brought in The Hague by South Africa accusing Israel of genocide of the Palestinian people.
The Court did not grant South Africa’s request for a cease-fire in Gaza. But the Court did accept there is a possibility that Israel is committing genocide, and it has ordered Israel to ensure genocide is not committed, and to grant humanitarian aid.
Nevertheless, the carefully-worded ruling leaves Israel a lot of scope to continue the military campaign.
Background
South Africa applied to the Court in December 2023 for an order requiring an end to the Gaza war. South Africa argued that Israel is committing “genocide” within the meaning of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) and asked the Court to indicate “provisional measures” in order to prevent such genocide taking place.
The ICJ has powers under the Court’s Statute to issue provisional measures where it is necessary in order to preserve the respective rights claimed by the parties, pending its decision on the merits. According to the Court’s own reasoning in the earlier case of The Gambia vs Myanmar, the Court only has to be persuaded that the rights which the Applicant seeks to have protected are “plausible”. Essentially, this means the South Africa only has to show that it is “plausible” that Israel is committing genocide.
Did the Court say Israel is committing genocide?
The court indicated that it is “plausible” that Israel is committing genocide. The Court based that preliminary conclusion on the high death toll in Gaza, the large number of displaced persons, the scale of destruction of infrastructure in Gaza, and the humanitarian crisis risking the lives of many. These are all evidence of destruction of the Palestinians as a people.
However there is only genocide under the Convention if Israel intends to destroy the Palestinians as such. Israel had argued that it is seeking to eliminate Hamas, not the Palestinians. The Court did not accept Israel’s arguments, but decided it is possible that Israel has an intention to commit genocide. The Court did not decide that Israel DOES have genocidal intent.
That said, t Court was very critical of the statements made by some of Israel’s leaders after the 7th October attack, which in the Court’s view could be regarded as evidence that Israel has the intent not only of eliminating Hamas but of destroying the Palestinian people in Gaza as such. The Court did not accept Israel’s arguments that South Africa took these statements out of context.
What did the Court order Israel to do?
Most importantly, the Court did NOT grant South Africa’s demand for an immediate ceasefire. Israel can continue with the military campaign in Gaza against Hamas.
The Court ordered several measures, the main ones being that Israel must –
– stop acts of genocide, and take all necessary steps to ensure its military forces do not commit genocide.
(This of course leaves open the question of specifically which acts constitute genocide; Israel can always
argue that its military campaign is not intended to destroy Palestinians, as such);
– prevent people in the country from calling for genocide, and punish those who call for it;
– 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;
– preserve evidence of genocide; and
– within one month, submit a report to the Court on all measures taken to give effect to this Order.
Did the Court refer to Hamas?
The Court expressly noted that this conflict was started by Hamas on 7th October, when it killed and took hostages. Thus the Court seemed to be indicating that Israel has a right of self-defence – although the Court did not actually refer to Israel’s rights of self-defence. (It seems the Court did not want to engage in the complex legal issues about the interrelationship between international humanitarian law (IHL) and the Genocide Convention.)
At the conclusion of its reasons, the Court stressed that all parties (including Hamas) are bound by international law.
“The Court deems it necessary to emphasize that all parties to the conflict in the Gaza Strip are bound by international humanitarian law. It is gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release.” (emphasis added)
However Hamas is not legally bound by this court ruling, because the case is not about crimes of Hamas, but about whether or not Israel is violating the Genocide Convention. So in principle the Court’s demand for the release of the hostages is not binding.
What are the implications of this ruling?
The Court’s acceptance of the plausability of genocide is damaging to Israel, as it raises a perception that Israel might be committing genocide. In the public opinion that is very dangerous.
Israel will also be disappointed that the Court did not accept Israel’s arguments that its efforts to minimize civilian casualties is evidence that it does not have genocidal intent.
It is also remarkable that the Court relied so heavily on statements by UN agencies and officials, such as the UN Secretary General, as if these are self-evident proof.
The court also relied on Hamas figures on death tolls, which it said are not proven but are prima facie evidence.
That is remarkable, given how untrustworthy the information given by Hamas is.
Isn’t it strange that Israel has to prove its innocence?
That is indeed strange, and also extremely difficult to prove. This ruling is going to be used as ‘proof’ that the Court believes Israel is committing genocide. Although that is emphatically not what the Court decided, nevertheless the impression is left that Israel is perhaps committing genocide. That is not good for Israel’s reputation, and will create even more political pressure on Israel.
What happens now?
In the short term, the most important thing is that the Court did not order a ceasefire. The war between Israel and Hamas in Gaza can and will continue.
On the other hand, the question of genocide has not gone away, but will remain a matter of huge debate. Israel will be under increasing political and public pressure to change its tactics, limit civilian casualties, and allow humanitarian aid to reach the population in Gaza.
The court proceedings in The Hague will continue. The Court now has to decide whether or not Israel really is committing genocide, on the “merits”. Several other states have indicated they will join in the proceedings. The case will continue for years – along with the many other cases that the Court is looking into.
Andrew Tucker (1963) studied law in Australia (BA/LLB), UK (BCL) and The Netherlands, and has worked since 1988 as an adviser and consultant to private companies, governments and (semi-)public entities in various fields of international law.
Andrew was a Fellow of the Law Faculty of the University of Melbourne from 1994 to 2001, and Research Associate at the TMC Asser Institute in The Hague from 1996-1998. Based in The Netherlands, he is Principal of Tucker & Associates.
Andrew is co-author of ‘Israel on Trial’, Soest (NLD), thinc. (2018).
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