While a determination on the merits of the case could take years, the Court could order Israel to comply with provisional measures within weeks.
Last week’s hearing at the International Court of Justice was widely reported as “one of the most significant ever.” South Africa claimed that a genocide was being committed in Gaza. Israel said that claim was a “blood libel.” The stakes are high; according to counsel for South Africa they include “the future of international law” itself.
But in the near term, neither a finding that Israel has committed genocide nor a dismissal of South Africa’s suit are conceivable outcomes of the two days of pleadings before the ICJ.
First, at this stage the Court is not considering the merits of the case—that will take years—or even confirming its jurisdiction. The hearing will determine whether there is prima facie jurisdiction and, if so, whether any of the “provisional measures” requested by South Africa should be awarded. Provisional measures effectively function as a form of interim injunction and are designed to preserve the rights of either party pending a judgment on the merits. To be awarded such measures, an applicant does not have to prove its case, merely to demonstrate that the rights in dispute are at least plausible, that the measures sought are urgent and linked to those rights, and that failure to award them would result in irreparable harm.
Second, the allegations do not concern just the commission of genocide, but also a failure of the obligations to prevent genocide and to punish public incitement to commit genocide. Even a Court strongly sympathetic to Israel’s arguments denying that it is committing genocide is therefore unlikely to attempt a swift disposal of the application.
So which measures could we realistically expect from the Court’s response, due within weeks?
Preservation of Evidence and Investigation of Violations
In their speeches, counsel for South Africa and Israel both referred extensively to previous applications for provisional measures before the ICJ in three other cases concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide: Ukraine v. Russia, The Gambia v. Myanmar, and Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro).
South Africa made particular use of the Court’s order in the ongoing case of The Gambia v Myanmar, another case where the state instituting proceedings was not the direct victim of the alleged violations (or “specially affected” in the language of the Court) but was able to act because obligations under the Convention are owed erga omnes partes, so that all states parties to the Convention have an interest in ensuring compliance in any given case, and any party can invoke the responsibility of another to institute proceedings. In that case, the Court ordered Myanmar generally to abide by its obligations under the Genocide Convention but also specifically “to take effective measures to prevent the destruction and ensure the preservation of evidence.”
The key thing to watch here is the extent to which Israel is required to allow access to independent fact-finding or investigative missions, which may include those from the United Nations or the International Criminal Court (ICC). For the ICJ, such a provision would have the advantage of bypassing one of the chief difficulties with the case, which is that it is only addressed to one party in an ongoing armed conflict. Despite the ICJ only having jurisdiction over disputes between states, Israel spent a significant portion of its allotted time in court detailing the Oct. 7 crimes and continued violations committed by Hamas, a non-state armed group. By requiring access for independent investigators, a provisional measure could effectively link the separate ongoing investigation by the ICC which covers alleged crimes by members of Hamas and other Palestinian armed groups, as well as by Israelis.
Suppression of Incitement to Commit Genocide and the Question of Genocidal Intent
South Africa’s application on Dec. 29, 2023 included over seven pages listing “expressions of genocidal intent” made by Israelis, including senior government and military officials such as Defence Minister Yoav Gallant’s reference to “fighting human animals” when he imposed a total siege on Gaza and Prime Minister Benjamin Netanyahu’s repeated reference to the Biblical slaughter of the Amalek, a people whom the Lord instructs the Israelites to kill, “men and women, infants and sucklings.”
The obligation under the Genocide Convention to prosecute direct and public incitement to genocide is distinct from the larger duty not to commit genocide. In an indication that Israel is aware of its vulnerability on this point, the attorney general issued a statement in English two days before the hearings, saying “any statement calling, inter alia, for intentional harm to civilians, contradicts the policy of the State of Israel and may amount to a criminal offense, including the offense of incitement.”
Here the ICJ could make a real difference, triggering action on the attorney general’s words by requiring Israel to suppress the dehumanizing and at times exterminatory language used by Israel’s political and military leadership, as well as by other public figures including news anchors and current and former ministers and members of the Knesset, such as the statements “there are no innocents in Gaza,” “there should be one sentence for everyone there – death” and calls to “turn the Gaza strip into a slaughterhouse.”
But the statements quoted by South Africa are also central to the plausibility of other provisional measures because of their probative value in demonstrating the specific “intent to destroy, in whole or in part, the group as such,” which is integral to the crime of genocide (the group in this case being Gazan Palestinians). Without intent there is no genocide. Malcolm Shaw KC for Israel dismissed such statements as “random quotes not in conformity with government policy” and suggested that Netanyahu’s Amalek reference had been misunderstood. But South Africa presented evidence that invoking Amalek had been well understood as an invitation to civilian killing where it really mattered—by soldiers on the ground. This included a video shown to the Court of IDF soldiers in Gaza on Dec. 7, 2023 chanting, “We know our motto: there are no uninvolved civilians” and “to wipe off the seed of Amalek.”
In addition to evidence from official statements and policies, genocidal intent can be inferred from a pattern of conduct. Here, however, the bar is set very high in the ICJ’s jurisprudence, requiring such an inference to be “the only inference that could reasonably be drawn from the acts in question.” Yet for South Africa, support is at hand, from a somewhat unlikely source. In their joint intervention declaration in the Myanmar case, submitted just last November, the UK, Germany, France, the Netherlands, Denmark, and Canada warn against “rendering the threshold for inferring genocidal intent so difficult to meet so as to make findings of genocide near-impossible,” agree that “circumstantial evidence will typically be highly significant in drawing inferences of specific intent” and “further submit that a violent military operation triggering the forced displacement of members of a targeted group may similarly contribute to evidence of a specific intent to destroy the protected group.”
But these are questions for the merits stage. As Judge Claus Kress declared in The Gambia v Myanmar, at the provisional measures stage the Court “has applied a low plausibility standard with respect to the question of genocidal intent.”
Sufficient Humanitarian Access
Together with the evidence of allegedly genocidal statements, it is the infliction of conditions of life allegedly calculated to bring about the destruction of Palestinian life in Gaza which lie at the heart of the case. The Court was presented with extensive evidence from UN agencies about the human impact of the IDF operation. In a Jan. 5 letter to the UN Security Council, the UN Secretary-General wrote:
Hunger and thirst are rampant, and widespread famine looms, according to the World Food Programme. More than half a million people – a quarter of the population – are facing what experts classify as catastrophic levels of hunger. WHO indicates that just 13 of the 36 hospitals in Gaza are still functioning, but only partially. They are overwhelmed with trauma cases … A public health catastrophe is rapidly evolving in Gaza. Infectious diseases are spreading in overcrowded shelters. Sanitary conditions are appalling…
In its response, Israel relied heavily on information from Israel’s own Coordinator of Government Activities in the Territories (COGAT) on how much aid was being allowed into Gaza and on the failures of others (principally UN agencies as well as Hamas) for its effective distribution. The difficulty here is that COGAT has repeatedly denied the obvious reality of desperation on the ground (and COGAT leaders feature in South Africa’s list of those making expressions of genocidal intent). Under the circumstances, it will be hard for the ICJ to ignore the weight of detailed UN and other independent reports on the humanitarian situation, irrespective of the dispute on the division of responsibility.
This may be the easiest of the potential measures for the Court to grant, echoing as it would the UN Security Council compromise resolution 2720 passed in December, which demanded immediate, safe and unhindered delivery of humanitarian assistance at scale directly to the Palestinian civilian population. That would place the weight of the UN’s highest judicial authority behind existing resolutions from the Security Council and General Assembly.
Suspension of Military Operations
This is the big one, but unlikely to be granted. In Ukraine v Russia, the ICJ ordered some three weeks after the Feb. 24, 2022 invasion that Russia “shall immediately suspend” its military operations in Ukraine and ensure that any military or irregular forces supported by it do likewise. But that case was significantly different to the Gaza case, because it was not about whether Russia is committing genocide, but about whether Russia’s military operation was a lawful response to Russia’s allegation that Ukraine was committing genocide.
Christopher Staker for Israel elicited some surprise in the public gallery with his argument that in Bosnia and Herzegovina v Yugoslavia the Court had not ordered military activities to cease as a provisional measure “even though an ongoing genocide was said to be in progress.” Rather more persuasive was his argument that such a measure would require “unilateral suspension of military operations by one party to the conflict only, leaving the other party [i.e., Hamas] free to continue attacks, which it has a stated intention to do.”
This is the hole in South Africa’s case which makes an order to suspend military operations doubtful. South Africa condemned the Oct. 7 attacks and hostage taking by Hamas and other Palestinian armed groups, but it did not fully engage with the consequences of Hamas’ continuing military operations, including rocket barrages fired at Israel. It was almost as if South Africa had decided with its lawyers: don’t mention the war. Israel by contrast talked of little else. And it spoke the legal language of war, otherwise known as international humanitarian law: precautions in attack, warnings, military targets, confronting human shielding, and legal assessments of proportionality.
South Africa was able to bring this case because of the compromissory clause in the Genocide Convention which gives the ICJ jurisdiction to hear disputes between parties over the convention’s application. Israel, however, argued that it was IHL (the law of armed conflict) which was the appropriate law for regulating the conduct of hostilities – including hostilities with an enemy which itself flagrantly violated that law – and that provided the proper “framework for balancing military necessity with humanitarian considerations.”
Specific Limitations on Military Operations
But there is a corresponding hole in Israel’s case. Over three months of conflict, the devastating toll that has been exacted on Gaza’s civilian population is not the unfolding of an unspecified “tragedy” (or the sole responsibility of Hamas), as repeatedly claimed by Israel’s spokespersons, but the result of specific tactics adopted by Israel as part of a coordinated military operation, including the widespread use of unguided or “dumb” munitions and heavy artillery bombardment in densely-populated areas (acknowledged by President Biden to include “indiscriminate bombing”); the dropping of hundreds of huge 2,000 lb munitions, including in “safe areas”; systematic operations targeting and closing medical facilities throughout most of Gaza; severe restrictions on food, water, electricity and other essentials reaching the besieged population; repeated forced evacuations of residents from their homes; and the massive destruction of residential buildings, schools, places of worship and other cultural centers. Assertions by Israel of its constant care to avoid civilian harm and Benjamin Netanyahu’s claim that “the IDF is the most moral army in the world” simply did not appear credible in the face of this conduct. (In noting that its ‘military mechanism is already reviewing incidents’, Israel hinted during the hearing that come the merits stage, long after this operation has concluded, Israel may shift to the more credible legal strategy of acknowledging certain IHL violations but rejecting the characterization of genocide.)
The lack of an equivalent jurisdictional clause means that a case before the ICJ could not have been brought under the Geneva Conventions, but here the ICJ has an opportunity to restrain in effect the IHL violations that have destroyed so many Palestinian and Israeli lives. Many such IHL violations are analogous to constituent acts listed in the Genocide Convention, including unlawful killing, causing serious bodily or mental harm, and deliberately inflicting on a group destructive conditions of life. The ICJ could require Israel specifically to limit or modify military operations to prevent the commission of such acts under the Convention, including for example avoiding the use of explosive weapons with wide area effects in populated areas and, as the application requests, rescinding relevant orders or restrictions to prevent further expulsion or forced displacement of Palestinians from their homes, deprivation of medical and humanitarian assistance, and destruction of Palestinian life in Gaza. The more specific such measures are, the greater possibility that they would have an impact.
Looking Ahead
It will be important to look out for whether any provisional measures awarded by the ICJ go beyond the general requirement to abide by obligations under the Genocide Convention, whether they just address prevention and incitement, or also go to placing specific limits on military operations. These may also provide the first clues to how the Court will approach consideration of the merits.
But in this case, possibly more than any other, it is this early stage of the proceedings which really matters, because it has the potential to affect the course of events. Provisional measures indicated by the ICJ are legally binding. Adila Hassim for South Africa went further: “Nothing will stop this suffering, except an order from this court.”
But states’ record of compliance with provisional measures is mixed. Israel might of course be tempted just to ignore the order, as Russia did. But Israel’s friends will find it much harder to dismiss and without them it would be left dangerously isolated. Israel is dependent on the United States, and to a lesser extent the United Kingdom, for military support, the supply of munitions, a veto at the Security Council, and diplomatic heft. There is already deep concern in the US administration about the methods Israel is using to prosecute the war and the fall-out both for regional security and for the reputation of the US as a champion of rule of law.
An order from the ICJ is not going to end this war. But a carefully-crafted set of provisional measures, focused on limiting the impact of military operations on the population of Gaza, could prove more of a restraint on Israel than Secretary Blinken’s shuttle diplomacy has achieved so far. Israel will argue that it is unjust, but it will be watching the U.S. reaction closely. Palestinians will argue that it is too little, too late, but it could save many civilian lives.
– Mark Lattimer is executive director of Ceasefire Centre for Civilian Rights. Published courtesy of Lawfare.
