The ICJ's interim ruling in South Africa’s genocide case against Israel: what now?
Israel was ordered to take steps to prevent acts of genocide in Gaza. Giulia Pinzauti, an expert on state conflicts and humanitarian law, explains the significance of the case, the specific details of the ruling and what we can expect to happen next.
South Africa has accused Israel of violating its obligations under the Genocide Convention, which both countries are a party to.
Yesterday, the International Court of Justice delivered an interim ruling validating various measures requested by South Africa to prevent Israel from committing alleged genocidal acts.
Israel was ordered to take all measures to prevent genocidal acts, prevent and punish incitement to genocide, and to report back on its actions within a month. The ICJ did not order a ceasefire.
The ICJ in The Hague has the authority to deliver binding rulings on disputes between states. However, several countries have ignored the court’s rulings in the past, most recently Russia, which in 2022 defied the ICJ’s order to stop its war with Ukraine.
Giulia, in what way is this case groundbreaking?
'The ICJ has moved quickly to issue a ruling containing provisional measures just two weeks after the oral hearings, which acknowledges the urgency of the humanitarian situation on the ground. Through this ruling, the Court has found that there is a plausible case of genocide for Israel to answer. The ruling could and should shape how third states position themselves with respect to the ongoing conflict.'
'The ruling has political implications for states that have been supporting Israel and providing military assistance.'
Does this mean that the war between Israel and Hamas is now over?
'No. But Israel will have to comply with the Court’s ruling in terms of how it conducts its military operations. It could also be argued that for Israel to comply with the Court’s ruling, they will have to scale down their military operations in order to guarantee the provision of basic services and humanitarian assistance to the population in Gaza.'
What are the political implications of the ruling?
'Israel is bound by the Court’s ruling. The ruling is susceptible to serious political implications as the Court recognised that South Africa’s case is plausible. This means that Palestinians in Gaza have the right to protection against genocide. The fact that there is a serious risk of genocide means that all states that are a party to the Genocide Convention have a duty to prevent it. This is particularly significant for states that have been supporting Israel and providing military assistance.'
South Africa requested nine measures, of which six were issued. Which measures were not issued?
'In essence, the Court did not order the immediate suspension of Israel’s military operations – in my opinion, that was unlikely to happen because the Court’s ruling is only binding for one party to the conflict (Israel) and not Hamas, which is not a state and is not a party to the case. Furthermore, the Court did not order Israel to refrain from action that could worsen or prolong the dispute before the Court, which could make resolution more difficult.'
'The Court also referred to the 7 October Hamas attacks and their victims; this shows that it listened to both parties’ arguments before making its decision.'
This was only a preliminary ruling, which means that no verdict was given on the main allegation – that Israel is committing genocide against the Palestinian population. Does the preliminary ruling shed light on the ICJ’s future rulings on the merits of the case?
'This ruling in no way sets a precedent for the merits of the case. However, it provides a strong foundation on which South Africa can argue its case. The Court effectively dismissed all of Israel’s arguments relating to its responsibility for committing genocide and its failure to prevent and punish incitement to commit genocide. It is also worth noting that the decision was adopted with a very large majority.'
One judge, Julia Sebutinde from Uganda, voted against all of the measures imposed. The other, Israeli Judge Aharon Barak, a Holocaust survivor, voted against most measures, apart from the measures aimed to prevent public incitement to commit genocide and provide basic services and humanitarian assistance.
Can you explain why the two judges may have voted against the measures imposed?
'Judge Sebutinde argued that the dispute between South Africa and Israel is a political dispute that should be resolved through diplomatic means. In her view, it is not a legal dispute that can be settled by the Court. Moreover, she argued that South Africa has not demonstrated – not even prima facie – that Israel has acted with genocidal intent.
Judge Barak argued that South Africa failed to show that Israel has acted with genocidal intent. He voted in favour of some provisional measures that merely confirm Israel’s obligations under the Genocide Convention and international humanitarian law. He emphasised that the measures imposed by the Court are narrower than those requested by South Africa, referring to the halting of military operations in particular.'
The ICJ issued a statement, albeit within the scope of the judgement, in which it expressed its concern for the fate of the hostages being held by Hamas. Why do you think the ICJ did this?
'It is consistent with the Court’s role, which is to settle disputes between states. The hostages' fate is extremely important for Israel. Moreover, even if it does not fall under the scope of the case and it is not in the operative part of the ruling, it may alleviate the sentiment that the Court’s decision was unilateral, so to speak, as it was largely in favour of South Africa. The Court also referred to the 7 October Hamas attacks and their victims. That strengthens general public feeling that the Court is impartial and listened to both parties’ arguments before making its decision.'
Pinzauti co-authored a recent Leiden Law Blog on potential humanitarian law violations in Gaza. The blog discusses Israel’s response to the Hamas attacks of 7 October – the same facts upon which the ICJ's ruling was founded.
Text: Helena Lysaght
Image at top: The Peace Palace building of the International Court of Justice in The Hague, Chloe Christine via Unsplash