This blog considers the case before the International Court of Justice (ICJ) between South Africa and Israel. It summarises the court’s order, before looking ahead to the impact of the ruling and flagging key issues likely to arise during the litigation to come.
It is important to note that the current decision concerns the indication of provisional measures: it is preliminary and does not determine the merits of the allegations. Rather, the ICJ focuses on jurisdiction, standing, and the need for an indication of provisional measures.
In finding that it has jurisdiction, the ICJ’s reasoning has two stages. First, a dispute exists—prima facie—between South Africa and Israel about ‘the interpretation, application or fulfilment’ of the Genocide Convention . As the source material shows, the parties have expressed clearly opposite views about whether there have been violations of the Convention.
Second, at least some of the acts and omissions alleged appear ‘capable of falling within the scope’ of the Convention ,. Importantly, the ICJ finds that Palestinians appear to constitute a distinct ‘national, ethnical, racial or religious group’ under Article II of the Convention . Nevertheless, the ICJ is at pains to stress that it is not deciding whether alleged violations have in fact occurred. That is a question for a full hearing about the allegations’ merits.
Although not challenged by Israel, the ICJ also finds that South Africa has standing before the court—again, prima facie—to allege violations of the Convention . Further analysis comes in Judge Xue’s declaration on the point.
The ICJ then decides to use its power to indicate provisional measures. It holds that the requisite urgency exists, i.e. ‘a real and imminent risk that irreparable prejudice will be caused to the rights claimed’ before the court reaches its eventual decision about the merits .
The judicial split
The ICJ makes one order, with six provisions. This order is not unanimous. Four of the provisions are by a majority of fifteen judges to two. The other two provisions are by a majority of sixteen judges to one.
No provision mandates a ceasefire. Instead, the ICJ requires Israel to adhere to obligations that it already has under the Convention (and, arguably, under other norms of international law). The only additional requirement is for Israel to submit a report, within one month, on measures taken to give effect to the order.
Therefore, despite South Africa’s requests, the ICJ declines to order immediate suspension of military activity in Gaza. However, it never explains why (e.g -). This is unsatisfactory. Even at this early stage, there should be fair analytical engagement with South Africa’s requests. The ICJ’s failure might be pragmatic—perhaps the judges widely disagreed about a ceasefire or had arguments too disparate to bring together in the written order. But, by this failure, the ICJ does not fulfil an important function of a court: open, transparent reasoning. Opaqueness, though strategic, is frustrating. We are left guessing.
This interim decision is unlikely to have major practical impact. On the one hand, the ICJ accepts most of South Africa’s submissions and gives little space to Israel’s reliance on self-defence. On the other hand, the ICJ stops short of granting South Africa’s most pressing requests. As such, neither party should claim victory.
The litigation will be lengthy. Going forward, one issue likely to dominate it is that of genocidal intent. The ICJ repeatedly refers to this issue. In dissent, Judge Sebutinde emphasises the absence of such intent, offering an autobiographical example. Meanwhile, in a separate opinion, Judge Barak agrees to the third and fourth provisions only on the basis that they may reduce tension and already represent the ‘DNA’ of Israel’s law and military . Judge Barak finds that no genocidal intent exists, reasoning that the case is most appropriately analysed through international humanitarian law rather than the Convention.
On intent, we must be accurate when understanding the fabric of international criminal law. Genocide—the ‘crime of crimes’ (Akayesu (ICTR, 1998))—is made distinctive partly by its intent. The intent must be to destroy, in whole or in part, a protected group. As a matter of law, Israel may be committing war crimes, for instance, distinct from genocide. That doctrinal distinction may prove decisive in the litigation to come.