Even without a ceasefire, the top UN court’s orders are a warning to Israel.
Pro-Palestinian demonstrators gather outside the International Court of Justice in the Hague, the Netherlands, on January 26, 2024. Nikos Oikonomou/Anadolu via Getty Images Ellen Ioanes covers breaking and general assignment news as the weekend reporter at Vox. She previously worked at Business Insider covering the military and global conflicts.
The International Court of Justice ruled Friday that Israel must increase its efforts to protect Palestinians and provide humanitarian aid to Gaza, though it did not call for an immediate ceasefire.
The ruling comes as part of a case South Africa brought against the Middle Eastern country, accusing it of committing genocide against the Palestinian people in its war in Gaza, which Israel launched in response to an October 7 attack by Hamas, the militant and political group that governs Gaza. The question of whether Israel is committing genocide remains open — proceedings in the case could continue for years — but South Africa had requested the court put a stop to the fighting as it weighs that possibility.
It doesn’t provide that injunction. But importantly, the court affirmed in Friday’s ruling that the court would still be hearing the genocide case, rather than dismissing it as Israel requested. And the Friday decision indicates the court believes Israel isn’t doing enough to prevent genocide against Palestinian people, nor is it sufficiently punishing incitement to genocide.
Still, the court’s decision indicates that the body finds it possible genocide is occurring or could in the future.
The six measures the ICJ issued are legally binding, meaning that under its treaty obligations under the 1948 Genocide Convention, Israel must do more to protect Palestinian civilians and prevent genocide. There would be few, if any, consequences if it ignores the ruling — as National Security Minister Itamar Ben-Gvir suggested Israel do — because the enforcement mechanism for the court’s orders is the notoriously political UN Security Council, in which the US, Israel’s strongest ally, has a permanent veto.
In short, the Friday ruling isn’t a clear victory for either side — but does suggest that South Africa’s claims are plausible. While little will likely change on the ground in the near term, the court’s decision has reinvigorated debate over the place of international law in conflict and imposed some boundaries on Israel’s prosecution of this war.
Israeli Prime Minister Benjamin Netanyahu responded to the interim ruling in a video message, the English version of which reiterates that Israel has a right to defend itself and calls South Africa’s request for a ceasefire “vile” and “blatant discrimination against the Jewish state” while insisting that “Israel’s commitment to international law is unwavering” and that it will continue to facilitate humanitarian aid to Gaza. However, as Times of Israel journalist Amy Spiro noted on X, his Hebrew message made no such promise.
South Africa suggested that the best way for Israel to comply with the court would be to stop its Gaza operations. “I believe that in exercising the order, there would have to be a ceasefire,” South African Foreign Minister Naledi Pandor said during a news conference following the announcement.
South Africa’s complaint against Israel, explained
South Africa first filed the accusations against Israel on December 29, requesting an urgent hearing for a preliminary ruling. That means that Friday’s decision isn’t a case decided on the merits — that could be a years-long process, and it will decide if Israel is committing genocide against Palestinians, or if the state is guilty of violating other tenets of the Genocide Convention in prosecuting this war.
The ICJ has decided that any state — South Africa, in this case, a country with unique historical ties to the Palestinian cause — can make a complaint against another that it suspects of violating the Genocide Convention, even if the accusing state isn’t party to the conflict precipitating the alleged or potential genocide.
Israel has argued that its actions over the past three months — killing more than 25,000 Palestinians, imposing siege conditions in Gaza, forcibly displacing a million people, bombing UN facilities and hospitals, and destroying much of northern Gaza — do not indicate genocidal intent. Rather, these horrors, which ICJ President Joan Donoghue listed in detail while reading the ruling, are unfortunate but necessary collateral damage as it pursues Hamas militants.
Genocide is extremely difficult to prove, since there must be intent to destroy an ethnic group in whole or in part for an atrocity to be considered genocide. But at this stage, it was not necessary to prove intent — just that it’s possible genocide is occurring and that Israel isn’t doing enough to prevent it or to punish incitement to genocide.
As Adil Haque, a professor of international law at Rutgers University, said in a panel put on by the University of Wollongong in Australia, “the heart of South Africa’s case is first the complete siege on Gaza, followed by severe restrictions on humanitarian assistance,” not necessarily Israel’s relentless bombing campaign. Per South Africa’s argument, that Israel “has systematically destroyed the health and food systems of Gaza,” it “has created the humanitarian crisis that now creates the risk of group destruction.”
Though the ICJ put limits on how Israel can continue its war, it didn’t explain its reason for not calling for a ceasefire. It could be because the court doesn’t have jurisdiction over Hamas, a non-state actor, and can’t require the group to abide by the ceasefire. But the decision “is kind of indirectly indicating that Israel did have the right to defend itself militarily against what Hamas had done,” Jocelyn Getgen Kestenbaum, who directs the Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic and the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR), told Vox. Even so, “that doesn’t mean that [Israel] can proportionately respond with war crimes and/or crimes against humanity.”
A final decision is a long way away — but here’s what could happen in the meantime
The court’s decisions are legally binding but difficult to enforce. Countries do ignore the ICJ’s orders — Russia, for example, ignored the court’s 2022 preliminary ceasefire order after its invasion of Ukraine, with no externally imposed consequences.
South Africa and Israel are obligated to follow the court’s orders in this case because they’re party to the 1948 Genocide Convention. If they don’t, they are violating that treaty. The ICJ is the court of the United Nations, and its enforcement mechanism is the UN Security Council, which can pass resolutions requiring Israel to do more to punish those who incite genocide, for instance, or who prevent humanitarian aid from reaching Gaza.
The US — one of the five permanent members of the Security Council — has historically vetoed any measure it sees as antagonistic toward Israel. Even if that weren’t the case, the Security Council is highly politicized and fractious, limiting its ability to enforce any resolution.
On Thursday before the ruling, State Department spokesperson Vedant Patel confirmed that the US is standing by Israel, including by rejecting claims that Israel is committing genocide, and there’s no evidence the two countries’ longstanding alliance is in any danger. “I doubt this will directly affect either US arms transfers or US actions at the UN regarding a ceasefire,” Brian Finucane, senior adviser for International Crisis Group’s US Program, told Vox.
Though it won’t stop the war, Friday’s decision “will definitely create a more pressured environment for Israel to operate in,” Juliette McIntyre, a lecturer in law at the University of South Australia, told Vox. It’s illegal for Israel’s allies, including the US, to “aid or assist in the commission of other wrongful acts (i.e., genocide),” she said, which could cause some partners to “withdraw military or other support for Israel in order to avoid this. States also have a duty to prevent genocide — which they may take more seriously once the Court has established that it’s a plausible risk.”
The court is also requiring Israel to submit a report within one month detailing its adherence to the interim orders. As Haque told Vox in an interview, that “might turn out to be significant, because Israel would have to convince the court that it’s abided by these orders. The court’s obviously going to make its own judgment and based on the tone of today’s reading, I think the court is going to scrutinize Israel’s representations about its degree of compliance.”
Even without a strong enforcement mechanism, the court is at the very least a venue for accountability: The ongoing genocide case can be used by other international bodies, like the International Criminal Court, in their investigations into war crimes and atrocities.
Sourse: vox.com
