Round one a significant win for SA
If defeat is to be measured by what a party asked for, the clear loser at the ICJ was Israel
● Immediately after the International Court of Justice (ICJ) delivered its order on Friday in South Africa’s genocide case against the state of Israel, there was a flurry of public debate and competing claims about who “won” the case, with supporters of Israel saying South Africa had substantively failed because it went to court for a ceasefire and did not get one.
Friday’s order by the ICJ was an interim one. South Africa’s main genocide case against Israel has yet to be argued and decided, and this may take years. What has happened so far was a “request for the indication of provisional measures”: South Africa asked the court to urgently grant interim orders to protect parties’ rights, while its main case is pending.
The framing of Friday’s order as a defeat for South Africa, in truth, is captured in the separate opinion of ad hoc judge Aharon Barak, the Israeli judge on the court’s 17member panel. He said: “South Africa came to the court seeking the immediate suspension of the military operations in the Gaza strip. It has wrongly sought to impute the crime of Cain to Abel. The court rejected South Africa’s main contention and, instead, adopted measures that recall Israel’s existing obligations under the Genocide Convention.”
But if defeat is to be measured by what a party asked for, the clear loser would have to be Israel. Israel asked the court to reject South Africa’s case on the basis that the court had no jurisdiction. The court rejected this argument. Israel argued South Africa’s case should be thrown out of court entirely — because South Africa had failed to establish even a plausible case that the rights of Palestinians had been violated under the Genocide Convention.
This too was rejected. The fact that provisional measures were ordered at all was the most significant win for South Africa, albeit that the court’s order was an interim one and it was careful to frame the order in a way that does not tie the court’s hands when the main case is argued.
In indicating provisional measures, the court said there were sufficient facts and circumstances to conclude that some of the rights South Africa claimed were plausible. “This is the case with respect to the rights of Palestinians in Gaza to be protected from acts of genocide and related prohibited acts,” said the court.
In reaching the conclusion that South Africa had made a plausible case, the court referred to statements by top Israeli officials such as defence minister Yoav Gallant when he said on October 9 last year that he had ordered a “complete siege” of Gaza City and that there would be “no electricity, no food, no fuel” and that “everything [was] closed”. Israel had sought to persuade the court that the only statements that were legally relevant to assess genocidal intent were the official policy documents of Israel’s government and its “war cabinet”. But when the court referred to the statements it did, it implicitly rejected this argument.
The court also rejected Israel’s argument that there was no urgency or risk of irreparable harm. It said “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the court renders its final judgment”. On the steps Israel said it had taken to alleviate the conditions faced by Gazans, “these are to be encouraged, [but] they are insufficient”.
It is correct that the court did not order Israel to cease fire. The first and second provisional measures ordered by the court are a reminder to the State of Israel, and to its military, of their obligations under international law: Israel shall “take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention”, said the court. Article II lists genocidal acts. The order refers “in particular” to killing members of the group (here,
Palestinians in Gaza); causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and imposing measures intended to prevent births within the group.
This does not mean that Israel is prohibited from taking military action. It is prohibited from taking genocidal action. The court said: “The court recalls that these acts fall within the scope of Article II of the Convention when they are committed with the intent to destroy in whole or in part a group ...”
These two provisional measures are what have sometimes been called “feel-good” provisional measures — a restatement of already existing legal obligations, or an order to respect the law. Domestic courts do not generally do this, but the ICJ has done so in the past. In an interview just after the hearing, renowned international law professor Bill Schabas said “feel-good” measures nonetheless have an effect.
“It does affect them, actually. Even those quite symbolic orders are viewed out there in the court of public opinion, globally, as being an order against the state.”
That the overwhelming majority of the 17-member bench concurred in the order is also likely to weigh heavily in the diplomatic realm. Only one judge, Julia Sebutinde, dissented on all the measures ordered. And even Barak concurred in two of the measures that the court ordered.
The two first measures were also not the only ones the court ordered. It ordered Israel to take “all measures within its power” to prevent and punish incitement to commit genocide. This means that when statements are made in Israel that Palestinians are animals, that there are no innocents, that Gaza should be wiped out — statements that constitute “direct and public incitement to commit genocide ”— these must be punished by the State of Israel.
The court ordered “immediate and effective measures” to ensure the provision of urgently needed basic services and humanitarian assistance to people in Gaza. UN bodies and international relief organisations in Gaza have repeatedly reported their difficulties in getting aid and relief to where it is most needed in Gaza because of the actions of Israel’s government. Though the court declined to use the word “desist”, as South Africa had asked, if Israel blocks relief efforts this would not be an “effective measure” to ensure the provision of humanitarian assistance and would arguably be a breach of the court’s order. Some of Israel’s military tactics, such as the targeting of hospitals and safe zones, may arguably be incompatible with this order.
The court ordered Israel to take effective measures to prevent the destruction of evidence and ensure the preservation of evidence related to allegations of acts of genocide. This order will give support to the independent observer missions and journalists who are seeking to document what is happening in Gaza.
Finally, the court ordered Israel to report back to it in a month’s time on what it has done to implement its order; and South Africa has an opportunity to comment on Israel’s report-back. This order seeks to secure the continued accountability of Israel to the rule of law. It will test what Israel’s representative, Tal Becker, said to the court in argument: that it was “not surprising that Israel was among the first states to ratify the Genocide Convention, without reservation, and to incorporate its provisions in its domestic legislation. For some, the promise of ‘never again’ for all peoples is a slogan; for Israel, it is the highest moral obligation.”
If the commitment to “never again” is for Israel the highest moral obligation, it must have no qualms in reporting back to the court whose function it is to enforce this obligation.
The court rejected South Africa’s main contention and, instead, adopted measures that recall Israel’s existing obligations under the Genocide Convention
Israeli judge Aharon Barak