The ICJ asked for caution, but not a ceasefire
Breaking down the January 26 interim order from the ICJ
On January 26, the International Court of Justice (“ICJ”) released an interim order in the case brought against Israel by South Africa alleging that Israel is acting in violation of the Genocide Convention in the ongoing war against Hamas in Gaza. Specifically, South Africa asserted that while they condemn the attacks on civilians by Hamas, they considered Israel’s response to the attack to be unlawful and as such were intending to refer the situation to the International Criminal Court to investigate Israel for war crimes, crimes against humanity, and genocide. There is a lot to unpack about that allegation in and of itself, not the least of which is the fact that Israel is not a party to the War Crimes Convention and that South Africa’s relationship with Hamas makes their stance on these issues morally ambiguous at best. That is a longer discussion that I intend to delve into in the future. For today, I would like to focus on the interim order, as this is presently the only decision released by the ICJ in relation to this matter.
Before diving into the Interim Order itself, it’s worth taking a moment to explain why this is something that South Africa requested. Court processes can be lengthy, even in regular circumstances. It could be years before the ICJ delivers a final decision in this matter. It can reasonably be hoped for that this war will be over before a decision is delivered. For that reason, it is not uncommon for a party to a proceeding to request that some order be put into place to prevent perceived potential harm during the period in which they are awaiting that final decision.
The ICJ first stated that there was jurisdiction to make a decision in this matter. This means that Israel’s request to have the case dismissed has been denied.
While not at issue in this case, the ICJ also took it upon itself to pre-emptively answer the question of whether South Africa had standing to bring this case against Israel: whether they were in a position to level these accusations, since South Africa is not involved in, or necessarily harmed by, the conflict between Israel and Hamas. In answer to this question, the ICJ followed its previous decision in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), where it determined that the common interest in compliance with the relevant obligations under the Genocide Convention allows any State party to invoke the responsibility of another for an allege breach. It is further worth recalling that Gaza is not a State, and therefore is not able to bring a case before the ICJ, nor is Israel able to level one against Gaza.
Genocide, under the Genocide Convention is defined as: “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as:
Killing members of the group;
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;
Imposing measures intended to prevent births within the group;
Forcibly transferring children of the group to another group.”
As explained by the ICJ in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), to fall under the Genocide Convention, there must be an intention to destroy at least a substantial part of a particular group. This definition, and the Genocide Convention as a whole, arise out of the events of the Holocaust, a fact which unfortunately should not be allowed to recede too far into the background of the present circumstances. The notion has also been floated, not arbitrarily, that the events of October 7 could be seen as engaging in some of these acts by Hamas against Israelis.
The ICJ cited the statement of President Herzog on October 12:
“We are working, operating militarily according to rules of international law. Unequivocally. It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not aware, not involved. It is absolutely not true. They could have risen up. They could have fought against that evil regime which took over Gaza in a coup d'état. But we are at war. We are at war. We are at war. We are defending our homes. We are protecting our homes. That’s the truth. And when a nation protects its home, it fights. And we will fight until we’ll break their backbone,”
The ICJ also looked at the Twitter post of Israel Katz, Minister of Energy and Infrastructure on October 13:
“We will fight the terrorist organization Hamas and destroy it. All the civilian population in Gaza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.”
Like many things, there is a lot to unpack about both of these quotes, which on their face, do not look great. Unpacking these statements is not the focus of this discussion, but I will note that Israel is only responsible for about 10% of the water in Gaza, the rest is pumped from groundwater supplies along the coast.
The Court concluded on the facts and circumstances provided to it, including the above quotes, that at least some of the rights claimed by South Africa in relation to the need to protect Gazans from acts of genocide are plausible.
To be clear: the court did not say Israel is committing a genocide against the Palestinian people. What they are saying is that there is the possibility that under the current climate, things could go too far and a genocide could occur. But this is in no way a finding of, or confirmation for, the assertion that Israel is in the process of committing a crime against humanity in the war it is fighting with Hamas.
The ICJ then turned to a specific consideration of the interim relief measures requested by South Africa.
The ICJ ordered:
Israel take all measures within its power to prevent the commission of acts that fall under the scope of the Genocide Convention.
Israel take measures to prevent and punish the direct incitement to commit genocide against Palestinians in Gaza.
Israel take immediate and effective measures to provide humanitarian assistance to Palestinians in Gaza.
Israel take effective measures to prevent destruction and ensure preservation of evidence related to the allegations.
Finally, the ICJ concluded by saying: “It is bravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and call for their immediate and unconditional release.”
The ICJ is effectively asking Israel to exercise caution around the preservation of civilian lives in Gaza. They did not find that Israel is committing a genocide. They also did not order a ceasefire or in any other way suggest that the ongoing war is unjustified or that Israel needs to end the war before the hostages have been released.
Israel has longstanding practices of caution around the preservation of civilian life in war that outpace those employed by many other militaries, including the United States. The Israeli Supreme Court banned the use of torture in 1999, a decision that has been confirmed by that court in 2006 and 2014. Israel has engaged, since the start of the war, in a practice of notifying civilians in Gaza and providing them with an opportunity to evacuate an area before military action commences. While entry to Gaza, including for aid organizations was shut down at the start of the war, it is important to recall that organizations like Doctors Without Borders and the Red Cross has been in Gaza for the entirety of the war and that millions of dollars of aid have flowed into Gaza from countries around the world, including $40 million from Canada shortly after the decision to pause funding in UNRWA. It is also essential to understand that Hamas is and acts like a terrorist organization. This means that they frequently utilize civilian infrastructure such as school, hospitals, and houses.
War is terrible.
Loss of civilian life is terrible.
But these facts do not inherently constitute a situation that contravenes international conventions on how we engage in war.
Thank you for breaking this down for us Sadie.