By way of introduction let me quote Richard Falk, noted international law professor and former UN Special Rapporteur on Human Rights in the Occupied Palestinian Territory. Falk: the decision by the ICJ “marks the greatest moment in the history of the [Court]”.
The initial response to the decision on 26 January suggested that South Africa had failed in its application. This flowed from the usual pro-Israel media reporting which concentrated on the failure of the Court to order a ceasefire. True it was that the Court, in the first of its provisional measures, did not use the word “ceasefire”. However, as we shall see, the Court noted that it may express its provisional measures other than in the terms sought by South Africa. It can use a different wordage. In respect of the first provisional measure, wherein South Africa’s draft did use the word “ceasefire”, the Court, when addressing that measure, does not use the word nor advert to its non-use of the word. The Court expressed the first measure thus:
The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
(d) Imposing measures intended to prevent births within the group.
With respect to all nay-sayers, that can only be tantamount to a ceasefire – Israel cannot kill Palestinians. Let me assert the true position. South Africa won the preliminary application.
It is appropriate to consider what was before the Court.
South Africa initiated proceedings asserting breach by Israel of the Genocide Convention. Those proceedings contemplate a substantial hearing with the tendering of evidence to be tested formally. That hearing would always be down-the-track, some time in the future.
As with many litigious matters, consideration needed to be given to what was to happen in the interim. Was there a need to make orders to preserve the position, and to facilitate the ultimate hearing. South Africa saw such a need, and sought some six provisional measures, addressing such topics as how Israel should conduct itself in the interim, particularly in respect of public incitement by individuals, the provision of humanitarian assistance in the interim, the preservation of evidence for use in the ultimate trial, and Israel reporting to the Court of measures taken by it to comply with the Court’s provisional measures.
South Africa obtained all of that.
What was Israel’s position? Israel called upon the Court to dismiss the proceedings, that is the entire proceedings, forthwith. It took the preliminary point that there was no dispute between it and South Africa such as to afford jurisdiction to the Court. This submission was rejected by the Court. In summary the Court noted that it was a pre-condition that the “two sides must hold clearly opposite views concerning the question of the performance or non-performance of certain international obligations”: Reasons, para.19. The Court further noted that South Africa “contends that a dispute exists with Israel relating to the interpretation, application and fulfilment of the Genocide Convention”. South Africa considered “Israel’s response to the attack of 7 October 2023 to be unlawful”. Israel responded that “the accusation of genocide against Israel is not only wholly unfounded as a matter of fact and law, it is morally repugnant”: Reasons, para.21. The Court had little difficulty in finding the necessary dispute: Reasons, para.28.
The next point taken by Israel was that there was no jurisdictional base for the entire application because the acts and omissions complained of by South Africa were not capable of falling within the provisions of the Genocide Convention. In particular Israel argued that there had to be a specific intent to destroy Palestinian people and that had to be proved “even on a prima facie basis”, i.e. at this stage of the proceedings. Israel argued that its only intention was to defend itself, and that it had taken steps to mitigate harm and facilitate humanitarian assistance. Such steps demonstrated the absence of any genocidal intent: Reasons, para.24.
The Court held that “at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention”: Reasons, para.30; and in the event, “the Court considers that it cannot accede to Israel’s request that the case be removed from the General List”: Reasons, para.32.
The Court found that the rights claimed by South Africa were “at least plausible”: Reasons, paras.35-38. The Court articulated what constitutes genocide: Reasons, paras.41-42. On the issue of intent the Court accepted certain unarguable statements by Israel’s officials: Reasons, paras.51-53. Three quotes are cited in the judgment, from Gallant, the Defence Minister, Herzog, the President, and Katz, the Minister of Energy and Infrastructure. That of Katz was as follows:
“We will fight the terrorist organisation Hamas and destroy it. All the civilian population in [G]aza 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”.
The Court found that “the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it seeks protection are plausible”: Reasons, para.54. The Court added that without provisional measures “irreparable prejudice could be caused to rights … the subject of judicial proceedings”: Reasons, para.60; there was a “real and imminent risk”, Reasons, para.61. The Court concluded “that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment: Reasons, para.72.
In the event the Court proceeded to make six Provisional Measures in respect of the matters sought by South Africa. As already stated, the Court may indicate measures other than those requested: Reasons, para.76; they don’t have to be identical, Reasons, para.77.
The first measure, reproduced above, was the only one weakened by the Court. South Africa had requested the immediate suspension of military operations, a ceasefire. The ICJ language refers only to taking “all necessary measures” to prevent the five genocidal actions. However, the Court’s second measure arguably answers the weaker language by accepting South Africa’s request that Israel make sure “that the military does not commit” any of the relevant acts – meaning that the IDF should stop killing people, i.e. any people, any people who are Palestinian. That must include government officials, members of Hamas, who happen to be Palestinian.
The other four measures, summarised above, were non-contentious, and all sought by South Africa.
The result is that South Africa substantially succeeded. It can clearly be said that it did so by close to 100%. It is worth noting in this respect the near unanimity of the court. The Court comprised 17 judges, 15 permanent judges and two ad-hoc judges from the two competing States. Every provisional measure was agreed to by 15 judges. Two of the measures were agreed to by 16 judges, the 16th being the Israeli judge. The one total dissentient was the judge from Uganda. The sole US judge supported the contentious findings and all six provisional measures.
What then is the impact?
As far as Israel is concerned, that country must accept that the Court’s rulings are binding, according to international law. There can be no doubt that the Court’s decision is a devastating blow to Israel’s global standing.
As for the United States, it’s standing too must have been seriously damaged. White House and State Department officials had described the South African petition as “meritless”. The sole US judge disagreed. The impact on global opinion can only be huge and seriously damage US credibility.
The decision can only have great impact on the World. ICJ decisions are binding in international law, all countries are bound by the Court’s decisions. Whilst the Court has no means of enforcing its orders, what the Court does have is an extraordinary level of credibility.
The decision has been referred to the Security Council for implementation. This was done by Algeria, which currently heads the Security Council, with the asserted intent of enforcing the provisional measures. The Council met on Wednesday, 31 January. Algeria advanced that the measures are only applicable through a ceasefire. China appears to have fully supported that approach, along with South Korea, Russia, and France. The US apparently advanced the two-state solution as the path to security and peace, and urged the entry of humanitarian aid. That is the limit of current news on the meeting. Indeed, as of midday on 1 February, there was nothing in the main stream media, including the ABC, which is perhaps reflective of the lack of priority which our press is giving to the whole Gaza issue.
There is no doubt the prospect of a US veto if a ceasefire is pushed but such veto would only damage the US further. If there was a veto the matter could go to the General Assembly where a “Uniting for Peace” resolution (Res.377) is a possibility.
We can only hope that our government will at last sit up and take notice.
Paul Heywood-Smith is an Adelaide SC of some 20 years. He was the initial chairperson of the Australian Friends of Palestine Association, an incorporated association registered in South Australia in 2004. He is the author of The Case for Palestine, The Perspective of an Australian Observer published by Wakefield Press in 2014.
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