No Gaza ceasefire order was the right ICJ call, say experts

The International Court of Justice (ICJ) “did the right thing” by not ordering Israel to implement an immediate ceasefire, say international law experts responding to the urgent interim application granted by the ICJ on Friday.

But the order — after the case of genocide brought by SA — puts Israel’s allies “on notice”, and they may face internal “political pressure to revisit their relationships with Israel”.

The court’s highly anticipated decision last week noted that 25,700 Palestinians have been killed in the conflict that started in October 2023 after Hamas launched an attack on Israel. A reported 1,200 Israelis were killed and about 240 were kidnapped by Hamas militants, resulting in Israel’s military operation in Gaza, which SA says “plausibly” involves various acts of genocide.

While acknowledging the “human tragedy” in the region, the court said Israel is still bound by international obligations. It ordered Israel to ensure its forces do not commit acts that could violate the Genocide Convention.

Michael Becker, assistant professor in international human rights law at Trinity College in Dublin, Ireland, who has worked at the ICJ, told Business Day: “This is a strong signal from the court that Israel needs to exercise greater restraint in its military operations.”

The court also ordered Israel “to prevent and punish” incitement to genocide, after noting statements from Israeli officials. Israel must report back to it within 30 days.

The ICJ called on Hamas and other armed groups to release Israeli hostages and expressed grave concern about the hostages’ fate.

However, the court stopped short of demanding a ceasefire.

“To request Israel to stop its military campaign would have rendered it defenceless against further attacks by Hamas,” said Hennie Strydom, University of Johannesburg law professor and president of the SA Branch of the International Law Association. “The court did the right thing.”

Sanya Samtani, a Wits law school senior researcher, points out that the only time the ICJ has ordered a ceasefire at an interim stage similar to the Israel-Hamas conflict was in the UkraineRussia case in 2022 while Russia’s invasion was still proceeding. Samtani called that ceasefire order “unprecedented”.

The ICJ is expected to hand down further judgments in Ukraine’s case against Russia this week.

Becker pointed out that the difference between the SA and Ukraine cases is that Russia “had no lawful basis for any use of force” in its invasion of Ukraine. “The same cannot be said about Israel, even if the manner of Israel’s military response has been deeply problematic.”

However, Samtani noted the ICJ ruling “does not explain why it did not order a ceasefire despite recognising the impact on civilians”.

The majority of the ICJ — including its president, Joan Donoghue, from the US and vice-president Kirill Gevorgian from Russia — voted for the six “provisional measures” against Israel. Notably, Ugandan ICJ judge Julia Sebutinde was a dissenting voice. She said the issue between SA and Israel “is not a legal one calling for judicial settlement by the [ICJ]”.

Becker disagreed, believing that “there is no question that SA’s case raises questions of a legal nature”.

Uganda’s ambassador to the UN, Adonia Ayebare, said in a social media post that Sebutinde’s ruling “does not represent ... Uganda’s position on the situation in Palestine”.

ICJ judges are expected to rule independently, regardless of their own country’s position.

The other dissenting voice was former Israeli chief justice Aharon Barak, who said there was no “plausible” basis to find there was any intent by Israel to commit genocide.

Thus far, Israel has not released a full response to the ICJ order.

All UN states are expected to comply with ICJ orders. When states do not comply they are usually subject to sanction by the UN Security Council, but Becker said this is unlikely to happen to Israel, given the veto power of the US, its ally.

Becker listed two implications if Israel ignores the order.

First, countries that have supported Israel’s response in Gaza “may face greater legal and political pressure to revisit their relationships with Israel, including the supply of weapons”.

As other experts have pointed out, the order puts Israel’s allies on notice even if they were not specifically named.

Second, by ignoring the ICJ, “Israel may end up handing SA further evidence to support” its full case of genocide against Israel later in 2024, said Becker.