THE HAGUE, Netherlands – The International Court of Justice in the Hague (ICJ) issued Friday a provisional order that Israel must refrain from acts that could possibly lead to genocide but fell short of demanding that it stops the war.
After debating for two weeks a complaint submitted by South Africa, accusing Israel of genocide and asking the court for provisional measures, the ICJ decided on Friday to accept only partially the requests by Pretoria.
The court was critical of Israel’s actions in the Gaza Strip, referring on multiple occasions to reports by United Nations officials on the dire situation in the Strip, but made do with calling on Israel to prevent any future possible genocidal acts and to ensure the immediate entry into the enclave of humanitarian assistance.
It also called on Israel to punish those who expressed incitement against Palestinians in Gaza, and asked Jerusalem to report to it within a month on all the measures it has taken to comply with the court’s orders.
The decision to adopt these measures was approved by a large majority of the ICJ panel, of 15 to two. Aharon Barak, together with Uganda judge Julia Sebutinde were the two to vote against any. Barak did vote in favor of the measure calling on Israel to expand and enable more humanitarian aid to enter into the Gaza Strip.
World Court refers to Gaza humanitarian crisis in ruling
The court session was presided by Judge Joanne Donoghue, who first presented the motivations for the decision, and then read the operative part. After the reading by Donoghue, a court clerk read a summary of it in French. Israel has not asked for the decision to be published also in Hebrew.
Donoghue said that all the conditions for the court to address this case were indeed fulfilled, including the South African claim over a dispute between itself and Israel, an argument Israel had rejected during the hearing on January 12.
Donoghue said that the case fell within the jurisdiction of the court, as South Africa showed plausibility of risk for genocidal acts against the Palestinian population in Gaza. Still, the judge noted that Friday’s ruling indicates nothing concerning the soon-to-start deliberations over the South African claim that Israel was committing genocide.
The court, she noted, only decided for the moment that there was a risk for the Gaza population, which merited measures to protect it.
The president of the ICJ referred extensively to the urgency of the humanitarian crisis in Gaza, citing reports and statements by UN Secretary General Antonio Guterres on the “devastating levels of death and destruction’’ in the Strip and reports by the World Health Organization on the dire medical situation there. She warned that many children in Gaza might never recover from the trauma and injuries inflicted upon them.
She especially criticized allegedly inciteful statements made by President Isaac Herzog, Foreign Minister Israel Katz (in his previous role as energy minister) and Defense Minister Yoav Gallant, noting that the Israeli premier had clarified last week that war will continue for many more months.
The court convened as hundreds of pro-Palestinian activists gathered outside the compound to demonstrate. A pro-Israeli demonstration also took place, a few hundred meters away, with police separating both sides. A delegation of five reserve soldiers, organized by the DiploAct group – formerly named ‘’Reservists On Duty’’ – joined the pro-Israeli demonstration.
The five have served for more than two months in Gaza, and came to the Hague to tell the world from personal experience that no genocidal acts were committed by the IDF.
South African Foreign Minister Nalei Pandor expressed satisfaction over the ruling, but admitted she had hoped for the court to include the word “cessation’’ in its judgment.
Asked by The Jerusalem Post if South Africa now intended to sever diplomatic ties with Israel, the minister said, “I don’t think it’s a matter between South Africa and Israel here. All your questions are about Israel, but the real issue is Palestine, Palestinians who are being killed every day. The people of Palestine who are denied food, water, and energy, that is the critical issue we should all focus upon.’’
“South Africa’s baseless accusations, and its attempt to empty the word genocide of its unique force and special meaning, have been widely denounced by numerous states known for their commitment to the rule of law. Israel is confident that the court will likewise reject these unfounded claims at the merits phase of proceedings,’’ read a statement issued by Israel’s Foreign Ministry after the decision of the ICJ.
The statement further noted that “on the eve of January 27, International Holocaust Remembrance Day, Israel calls on all those genuinely committed to the solemn promise of “never again” enshrined in the Genocide Convention, to reject the unconscionable efforts to distort the truth in support of a genocidal terrorist organization.’’
Foreign Minister Israel Katz said “Israel’s commitment to international law is unwavering. It exists independently of any ICJ proceedings, as does Israel’s inherent right to defend itself against the genocidal terrorists of Hamas.’’
Prof. Yuval Shani, who holds the Hersch Lauterpacht Chair in Public International Law at the Hebrew University and is considered one of the leading academics in the world in this domain, told the Post that the situation Israel found itself in – to be accused by another country at the ICJ of violating the convention against genocide – is certainly a serious one.
‘’Starting conditions were complicated; taking into account that such a claim had been submitted and that there was little chance that the court would have rejected it, seeing the number of casualties in Gaza and worldwide expectations that the ICJ would react. As such, the decision taken by the court, on the operational side, is something Israel can live with,’’ he said.
“Most of the measures requested by South Africa, were in fact not adopted by the court, including of course the demand to order Israel to stop the fighting in Gaza. The provisional measures the Court did issue are practically banal, ordering Israel to uphold the convention, enable the entry into Gaza of humanitarian aid and address the issue of incitement. Israel has been saying it was addressing all these issues,’’ said Shani.
Still, Israel was also ordered to report to the court within a month on the measures it has taken to fulfill the provisional measures. “It is a way to keep the file alive also in the short term," he explained, adding that South Africa could ask the court to amend the provisional measures should Israel lack in addressing them.
Shani noted that Israel’s attorney-general has already said she was probing some cases of alleged incitement to genocide of Palestinians, and these investigations would clearly be part of the report Israel will file to the ICJ.
Judge Donoghue mentioned in her preliminary remarks statements made by Herzog, Katz and Gallant, but Shani does not believe the court expects Israel’s prosecution to take any steps against them.
“Israel’s claim that the court has no jurisdiction in the case was not very strong,’’ suggests Shani. “The Israeli presentation focused mainly on demonstrating that there was no intent to commit genocide, that this claim by South Africa was not plausible, especially in view of the mitigation measures, Israel’s measures to distance the civilians from the fighting zones.
“It also focused on Israel’s right to defend itself. I think that this weakened the South African claims, making the Court more prudent. That is why the ICJ did not issue an order to stop the fighting, which would have harmed Israel’s right to self-defense.
“It didn’t issue specific orders to let Gazans return to the north of the Strip, for instance, or specific instructions on the humanitarian aid, but was content with more general orders, leaving Israel with considerable space for operating.’’
Ambassador (ret.) Daniel Carmon, who served as Deputy Representative at Israel’s Mission to the United Nations in New York, warned that while each decision of the ICJ is independent, Friday’s ruling could certainly influence other international rulings related to the region.
Carmon reminded us that the ICJ is expected to hold a public hearing on February 19 on the UN request for an advisory opinion in respect of the legal consequences arising from the policies and practices of Israel in Palestinian territories.
“The February hearing follows a request by the UN from 2021 for an advisory opinion, and in this case, it is clear that the court will slam Israel over its settlement policies. Here we are talking not just about inflammatory statements attributed to politicians who are not decision-makers, but on decisions taken by the government, first and foremost by far-right Ministers Bezalel Smotrich and Itamar Ben-Gvir, to bolster the settlement enterprise,’’ said Carmon.