The International Court of Justice (ICJ) has delivered its ruling on the emergency measures requested by South Africa in its genocide case against Israel over its war on the Gaza Strip.
The court said, among others, that Israel must take steps to prevent acts of genocide in Gaza but stopped short of ordering a ceasefire. The judges have not ruled on the merits of the genocide allegations, which may take years to decide.
Since October 7, Israel’s military campaign has killed at least 26,083 people and wounded 64,487 others, according to officials in Gaza. Thousands more are missing under the rubble, most of them presumed dead.
This post provides a bottom-line analysis of the order.
Briefly, the Court found that the legal conditions for the indication of provisional measures were met, in particular that it was plausible that genocide was being committed in Gaza.
However, the Court did not indicate the most important measures asked for by South Africa, i.e., it did not order Israel to stop its military operations altogether, unlike in the case brought by Ukraine against Russia. It did indicate provisional measures, which are in most respects similar to its Gambia v. Myanmar order on provisional measures, with some important additions.
In sum, reputationally, this is a significant blow to Israel, especially in light of the near-unanimity of the Court, and the order will also have a bearing on states cooperating with Israel. But Israel avoided an order that would have mandated a ceasefire, instead being ordered to undertake measures that it is saying that it is largely doing anyway.
The conditions for the indication of provisional measures laid down in the Court’s jurisprudence can easily be met in a situation as harrowing as the one in Gaza. All, that is, but one: the plausibility of the rights (or violations) alleged by the parties.
Recall that the Court’s jurisdiction in this case is based solely on the compromissory clause in Article IX of the Genocide Convention, which means that the existence of any other international crime—war crimes or crimes against humanity—is outside the Court’s jurisdiction. This, in turn, entails that the plausibility of South Africa’s claims hinges entirely on the question of genocidal intent.
Did the Israeli officials directing the military operations in Gaza plausibly do so with the intention of destroying the Palestinian people, in whole or in part, rather than (for example) with callous indifference as to the suffering of Palestinian civilians while the hostilities with Hamas were ongoing?
The issue of intent wholly determines both the Court’s decision on provisional measures and its ultimate judgment on their merits in the years to come (when the evidentiary bar will be much higher). If such intent was found to plausibly exist, all of the other conditions for the indication of provisional measures would simply fall into place.
Plausibility versus the actus reus of genocide
This is precisely what happened. The two most interesting parts of the order are the Court’s findings as to plausibility and its decision on what measures to indicate (or not). (I leave aside entirely formal issues like standing or the existence of a dispute between the parties, on which the Court has a complex and controversial jurisprudence—the Court was rightly unwilling to avoid deciding this case on the basis that supposedly no dispute existed, a route which, in the present circumstances, would have been reputationally suicidal for the Court.).
On plausibility, the conduct comprising the actus reus of genocide was, as a general matter, easy to establish because of the widespread destruction in Gaza. The key question, again, was one of intent. And here, crucially, the Court relied on statements of Israeli officials that could plausibly be read as implying such intent, much as we predicted in our analysis on the podcast (para. 52).
However, there is no detailed analysis of these statements in order, of the kind one would expect in a judgment on their merits. Rather, the court performs a holistic assessment. It’s also important to note what statements the Court did not include in its analysis as plausibly evidencing genocidal intent—perhaps the most infamous is Prime Minister Netanyahu’s Amalek speech, which the Court apparently thought was more ambiguous than many have thought. Again, it is important to underscore that Israel has its own officials to blame for making the kind of statements that they made.
On other conditions, particularly the existence of urgency and irreparable harm, it is striking that the Court noted statements by various UN Special Rapporteurs and the CERD Committee voicing their alarm at the situation in Gaza and its potentially genocidal and discriminatory aspects.
This is particularly striking because, unlike UN fact-finding missions, these special rapporteurs have no greater sight of the key facts in this case than other external observers. Similarly, throughout the order, there is also extensive quotation from, and deference by the Court to, important factual assessments by UN (Secretariat) officials.
The Court also found that some remedial actions taken by Israel, including warnings of possible prosecutions by the Attorney General, are to be encouraged but do not suffice to remove the risk of irreparable prejudice (para. 73). Again, this was only to be expected.
The most important question then became what measures to indicate. The Court did not order the most impactful measures sought by South Africa, including those demanding that Israel stop its military operation altogether or desist from the destruction of Palestinian life in Gaza.
The Court did not, in short, indicate the ceasefire measure that it had previously ordered only in Ukraine v. Russia (a case that is legally substantially different from this one, again as noted in our previous analysis on the EJIL Podcast). That said, the Court (as its practice) does not explain why it doesn’t consider that a ceasefire order would not be appropriate but is just exercising its discretion (paras. 75 et seq.).
Rather, the Court indicated the same measures—directly tied to the language of the Genocide Convention—that it had previously indicated in Gambia v. Myanmar. But there are some important additions.
First, there is a very explicit request to Israel to take all measures to prevent and punish direct and public incitement to genocide, which is more explicit than the one in GvM.
Second, there is a very explicit request to Israel to implement immediate and effective measures for humanitarian assistance. Third, like in GvM, the Court asked for a report from Israel on compliance, but here the time limit for that report is much shorter, just one month.
It was also notable how, in essence, as dicta, the Court concluded its analysis by reiterating that all parties to the conflict, including Hamas, remain bound by international humanitarian law while calling for the release of the hostages still being held in Gaza.
15 votes to 2, signals consensus in the Court and not some anti-Israeli UN conspiracy
Finally, the majorities with which the Court rendered this ruling are very important, especially in terms of public messaging. The Court was near-unanimous in its order. Most of the provisional measures are indicated by 15 votes to 2 (Judge Sebutinde and Judge ad hoc Barak dissenting); these are the GvM-style measures.
The two new additions on direct and public incitement and humanitarian assistance were delivered by 16 votes to 1 (Judge Sebutinde dissenting); that is, even Judge ad hoc Barak (appointed by Israel) voted for them. This underscores the degree of consensus within the Court. Judge Barak’s endorsement of the two measures—completely justified in light of the facts on the ground—will not endear him to those segments of the Israeli public that already revile him.
It is also important to note that the US Judge and the Court’s outgoing President, Judge Donaghue, were in the majority on all points of the order. This should, I think, also be an important signal to the Israeli public, in particular, that the Court’s order is not the result of some anti-Israeli UN conspiracy (not that I am holding my breath on this account).
At the time I am finalizing this post, the separate opinions are not yet available, and so I will update it later today. In particular, Judge Sebutinde’s dissent will surely be an interesting one, as will the opinion of Judge ad hoc Barak.
