The genocide case
Interpreting Friday's ruling in The Hague.
Welcome to this week’s Not in Dispatches – an overview the International Court of Justice case between Israel and South Africa taking place in the Peace Palace in The Hague and yesterday’s ruling.
Courting controversy
Decisions of the International Court of Justice rarely make the front page.
Over its long history – establishhed in 1945 along with the United Nations and modelled on its precursor, the 1899-era Permanent Court of International Justice – the so-called World Court has tended to deal with fairly technical, arcane and dry disputes.
Much of its jurisprudence is about border delimitations between countries. Unlike the International Criminal Court, it has mostly been spared allegations of inefficiency, corruption and politicisation. Almost all states respect its jurisdiction and its judges have, by and large, been considered upstanding, impartial and faithful to the law. And the court has largely avoided, as the diplomats who negotiated its creation during the Second World War hoped, “essentially political matters”.
During its time, the court has ruled on some highly contentious issues. Cases about America supporting the armed opposition to the Nicaraguan government (in 1986), the terrorist bombing of a passenger airline by Libyan nationals over Lockerbie, Scotland (in 1992) and the threat or use of nuclear weapons (in 1996) all threw the court into the spotlight. But such cases remained the exception, not the norm.
Today, however, the court’s docket includes heavier and more politically charged cases than ever in its history.
Ukraine has brought a case against Russia alleging genocide – so too has the Gambia against Myanmar. There are disputes from the state financing of terrorism to state-sanctioned racial discrimination. And the court’s 15 judges – each elected for a nine-year term by a majority of the UN General Assembly and UN Security Council – have been asked for advisory opinions on such matters as climate change and self-determination.
Law and orders
But no case has been so contentious, high-profile and misunderstood as South Africa's case against Israel under the Genocide Convention.
South Africa brought the case in late December 2023, asking the court to render immediate “provisional measures of protection” – the international law equivalent of injunctions – that would order Israel to immediately suspend its military operation in order to protect the Palestinian people from potential genocide. After its diplomatic urgings for a ceasefire bilaterally and at the United Nations failed, South Africa went to the courts.
South Africa’s motivations for bringing the case are mixed.
There are principled reasons: the ruling African National Congress in South Africa, which came to power after dismantling apartheid, has long opposed Israel’s occupation of the Palestinian Territories, which it often compares to apartheid.
There is solidarity: the ANC has always maintained links with Palestinian groups and, unlike the United States or the European Union, it does not classify Hamas as a terrorist organisation (Hamas, which is rumoured to have an office in Cape Town, was a prominent participant in a recent memorial for the late Nelson Mandela).
And there is realpolitik: South Africa often tries to position itself as a leader of the Global South and in opposition to the West.
So far, the case has not been about whether Israel has committed genocide in Gaza. It is at an earlier stage than that. A fuller hearing on the merits will take place later (one of the questions in the provisional hearing trial was whether a full hearing should occur).
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South Africa, in making its case for “provisional orders of protection”, had to meet some technical legal thresholds.
First, it argued that the court had jurisdiction to hear a case about whether Israel had committed genocide and that South Africa had standing to bring such a case.
Second, it argued there was a “plausible” link between the provisional measures requested (that is, among other measures requested, a ceasefire, abiding by the Genocide Convention, and Israel allowing more humanitarian aid) and the rights of the Palestinians in Gaza to be protected from acts of genocide.
And finally, it argued that if the court did not order Israel to suspend its military operation there would be a risk of “irreparable harm” to the Palestinian people, which would occur before the ICJ had a chance to decide on the full merits of the case.
Israel argued the court had no jurisdiction because the war, started by Hamas, was governed not by the Genocide Convention but by international humanitarian law and that, in any case, it was acting out of self-defence.
Further, Israel argued that it was not “plausible” that ordering a stop to the military operation would prevent genocide as Israel patently had no “genocidal intent”.
And finally, it disputed that the Palestinian people were at risk of irreparable harm since Israel was constantly taking concrete steps to address the humanitarian situation in Gaza.
On each of the areas debated, the court found in favour of South Africa – and against Israel – with a majority of at least 15 out of 17 judges voting in favour of imposing provisional measures, including the American, Russian and Chinese judges.
The court asserted its jurisdiction. It found South Africa and Israel were in a legal dispute over the war in Gaza owing to different opinions voiced in diplomatic forums. And, without pronouncing on whether Israel had actually committed genocide, it found that there was a plausible link between ordering Israel to take protective measures and preventing harm to the Palestinians of Gaza.
But the judges did not give South Africa precisely what it asked for – specifically, that Israel halt its military operation.
Instead, it made a more limited set of orders, asking Israel to take all measures to (1) prevent acts in Gaza that could breach the Genocide Convention, (2) prevent and punish any direct and public calls inciting genocide of the Palestinian people, (3) avoid the destruction of and preserve any evidence of genocide, and (4) ensure the provision of urgently needed basic services and humanitarian aid in Gaza.
It also asked Israel to report back to the Court within one month on all measures taken to give effect to these orders.
Lawfare and warfare
Most of these measures will have little bearing on the war.
The court shied away from the most consequential potential order: a ceasefire. And the Israeli government’s ability and incentives to quell the most aggressive rhetoric will hinge less on court orders and more on political realities.
There is also no guarantee that Israel will follow the orders. Unlike domestic courts, the International Court of Justice has no enforcement mechanism. There is no implementing arm of the court. And Israel ignored the ICJ’s previous (admittedly, non-binding) advisory opinion that the Israeli West Bank barrier violated international law.
But it may well partially follow the orders this time.
Israel would likely view the orders granted as rather limited in nature and politically feasible to follow. It will want to keep the judges on side for the full hearing. And it will come under increasing pressure to follow the law and limit the humanitarian suffering.
The fact that even Israel’s greatest ally, the United States – and even its own judge it appointed on this case – supported increasing aid gives hope that greater relief will be provided.
In the meantime, the case will continue, with a full hearing to come later. At that time, the case will move from preliminary and procedural matters to the actual merits of the case in which both sides will present fuller arguments about whether Israel has committed, or is committing, genocide in Gaza.
While the judges may have found in South Africa’s favour at the provisional measures stage, this does not mean that the court is likely to make a finding of genocide on the merits.
Indeed, despite the many tragic dimensions of the war – “massive civilian casualties, extensive destruction of civilian infrastructure and the displacement of the overwhelming majority of the population of Gaza”, in the words of the majority judges – the court will ultimately be applying a legal test with a high threshold for the definite determination of genocidal intent.
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The question will not be whether the war in Gaza is tragic or even moral. It will be whether Israel had an “intent to destroy, in whole or in part, a national, ethnical (sic), racial or religious group.”
And in the absence of a “general plan to this effect”, the “intent to destroy” can only be inferred from a “pattern of conduct” if this is the “only reasonable inference that can be drawn” therefrom.
But that could take months, if not years.
This case will not ask broader and perhaps more relevant legal questions, such as whether the rules and principles of international humanitarian law – that provide that harm to innocent civilians and civilian infrastructure should not be excessive in comparison to the military advantage anticipated from a strike – have been violated.
That is because those questions cannot be answered by the International Court of Justice in this case, given South Africa has brought its claim based on the Genocide Convention alone, and not possible violations of other rules of international law, such as war crimes.
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