The ICJ Israel Ruling: Politics by Legal Means?

The ICJ Israel Ruling: Politics by Legal Means?

International law cannot substitute for effective conflict resolution between Israel and Hamas or the broader and underlying Israeli-Palestinian issue.

On January 26, 2024, the International Court of Justice (ICJ) delivered its order on the provisional measures sought by South Africa against Israel in relation to the latter’s military action in the Gaza Strip after the October 7, 2023 attacks. The ICJ did not order Israel to immediately suspend its military operation, as South Africa had requested. Yet, it did require a number of measures concerning the conduct and context of the war. While the Court’s decision can, therefore, be seen as a striking middle ground, with “moderate” strategic repercussions for the main players as well as global actors, larger questions about the role and impact of international courts in political disputes remain.

The order contains six measures Israel must comply with, the last of which is a reporting obligation to the Court within one month on the effect Israel will have given to the order. Through the first two measures, the Court tells Israel and its military to make sure to prevent all acts of genocide as defined in the treaty to which both Israel and South Africa are parties and on which the latter’s application was based. The practical impact of this part of the order is likely to be limited, as Israel considers its current actions do not amount, despite the large number of Palestinian casualties in Gaza, to genocide. Whether the Court shares that position will only become apparent once it delivers its judgment on the merits, which may take years.

In a third measure, the Court orders Israel to “prevent and punish the direct and public incitement to commit genocide.” This came after South Africa had submitted a series of statements in which high-ranking Israeli politicians and military officers, as well as members of the general public, had voiced a need to “level Gaza to the ground” and cut it off from all electricity, food, water, and fuel. Some of those statements, by Israel’s defense minister, prime minister, and president, are quoted in the Court’s order and were read by the Court president who delivered it. Given the wider understanding within Israel that the harsh words produce less change on the ground than that they create reputational damage and strain relations with allies, it can be expected that Israeli officials will be more careful in crafting public statements and differentiate between Hamas fighters and civilians.

The measure set to have the most effect on the ground is the fourth one, by which the Court obligates Israel to “enable the provision of urgently needed basic services and humanitarian assistance” to Gaza Strip inhabitants. The reasons for the Court’s order are sparse, with references to the humanitarian situation and the political repercussions expected from a generation of children living through a war. As the matter of humanitarian convoys has been a topic of heated debate (and protest blockades) in Israel since the start of the war, this part of the order provides tailwinds to those in favor of allowing sufficient aid despite the war not having reached its main goals after three months of ground operations. It must be noted that ICJ rulings, including on provisional measures, are legally binding (Article 94(1) of the UN Charter). While this legally binding character does not automatically translate into implementation on the ground, the mere reference to it constitutes a considerable argument for those in Israel determined to continue the military operation without foregoing international rules or risking criticism from global partners.

As regards the fifth measure ordered by the Court, “to prevent the destruction and ensure the preservation of evidence” of any acts of genocide, Israel can be expected to hold, given its initial position that there is no ground for South Africa’s claim, that the conduct of the current operation is sufficiently in line with internal and international rules on warfare, and it is likely to argue so in its report to the Court.

After the delivery of the order, the most frequent reaction heard within Israel was that its terms could have been more detrimental. Still, several voices, including PM Netanyahu, insisted that the very admission of the case in the ICJ was unfounded and constituted an insult to Israel, with some arguing that Israel should not have even taken part in the proceedings. On the Palestinian side, where most had hoped for an order to end the military operation, the mere fact of an international court issuing an order on Israel’s conduct regarding the Palestinians was seen as an endorsement of their position. To be fair, the Court did indeed try to base its decisions on a factual assessment of the current situation. It insisted on the war’s humanitarian consequences and the problematic character of the Israeli public statements, yet also mentioned the impact of the October 7 attacks and the ongoing ordeal of the Israeli hostages, even if these were not elements on which South Africa based its application.

By founding its order not only on an appropriate factual basis but also on a comprehensive understanding of the parties’ concerns, the Court was able at this stage to fulfill its role and come to conclusions in the application of objective and general legal rules to an intricate and messy political and military dispute. As repeatedly stressed in the order, however, nothing in it prejudges any decision the Court may take on the merits of the case, i.e., on the question of whether Israel’s actions in response to the October 7 attacks constitute genocide or not. 

The general opinion, not only in Israel but also worldwide, is that as grim as the war’s repercussions are for Gaza’s population (something which is obviously stressed more across the globe than in Israel), they do not fulfill the conditions of genocide. South Africa, Palestinian groups, and their supporters are, of course, of the opposite opinion, and any decision the Court may take in this respect has a serious potential to put the spotlight back on the highly political nature of the underlying questions.

For the time being, the Court, composed of fifteen judges and two ad hoc judges (Dikgang Moseneke for South Africa and Aharon Barak for Israel), reached objective legal understandings without being tied by political considerations. Indeed, the stances of the Lebanese and Somali judges on the bench do not favor exclusively pro-Palestinian views. In contrast, the American and German judges did not vote against the orders on Israel. Judge Barak himself, moreover, voted in favor of the third and fourth measures, explaining in a separate opinion his hope that they can positively address the current situation. Interestingly, the one judge who voted against all measures and appended a dissenting opinion is Julia Sebutinde from Uganda. The African nation maintains cordial relations with Israel. However, the recent nineteenth summit of the Non-Aligned Movement hosted in Kampala voiced much more critical positions on Israel’s recent actions.

Ultimately, as with other ongoing legal proceedings in The Hague, judges and lawyers tasked with applying international law to the Israeli-Palestinian context are inevitably confronted with the controversial and highly political aspects of the questions put before them. International law can clarify these aspects and put them in a larger context. Still, it cannot be a sole substitute for effective conflict resolution between Israel and Hamas or the broader and underlying Israeli-Palestinian issue. This was clearly expressed in the declaration the German ICJ judge appended to the order, stating that “the Court can play only a limited role” in a case characterized by “heartbreaking” circumstances. Any actor aiming to play an effective role in the Israeli-Palestinian arena would therefore be wise to closely follow the legal proceedings and study the relevant matters of fact and law brought forward in them, yet at the same time prioritize measures and actions that, on the ground, can prepare for a less conflictual future for Israelis and Palestinians. 

Dr. Alexander Loengarov is a senior affiliated fellow at the Institute for International Law at the University of Leuven and a former European Economic and Social Committee official of the European Union. He coordinated the first rounds of the EU’s grant scheme for academic mobility with Israeli and Palestinian institutions. In addition to his thesis on the entanglement of politics and law in the issue of recognition of Palestinian statehood, he has published analysis for think tanks like the Washington Institute for Near East Policy and Israel Policy Forum, as well as opinion pieces on the Middle East and Israeli politics for the Brussels Times. His writings reflect solely his views, not those of his employers or affiliates.