An Analysis Of The International Court Of Justice’s Ruling On Israel Amid The Palestinian Conflict

BACKDROP

South Africa approached the Court seeking an immediate halt to military operations in the Gaza Strip, but the Court dismissed this request, asserting that South Africa had unfairly attributed blame to Israel. Instead, the Court implemented measures reminding Israel of its existing obligations under the Genocide Convention. It reaffirmed Israel's right to self-defense and stressed the importance of providing humanitarian assistance to Gaza's population. However, the Court's provisional measures were narrower in scope than those initially sought by South Africa.

The Court notably underlined that all parties involved in the Gaza conflict, including Hamas, are obligated to adhere to international humanitarian law. Furthermore, it expressed deep concern regarding the fate of hostages taken during the October 7, 2023 attack on Israel, urging their immediate and unconditional release from captivity by Hamas and other armed groups.

ISRAEL’S STAND ON THE MATTER

The Israeli Supreme Court's rulings, many of which are grounded in international law, serve as the benchmarks guiding Israel's conduct. International law forms an integral component of the military's code and conduct, as outlined in the Code of Ethics of the Israeli Defense Forces, which mandates the use of power or weapons only when necessary for mission fulfillment while maintaining humanity, particularly towards civilians and prisoners.

Instances of norm violations prompt legal authorities such as the Attorney General, State Attorney, and Military Advocate General to take corrective actions, subject to judicial scrutiny. In some cases, the Israeli Supreme Court may provide directives. This adherence to legal principles forms the essence of Israel's democratic ethos, enduring through changes in governance and judiciary.

Moreover, Israel's institutional framework includes real-time legal advice during hostilities, ensuring strikes adhere to military objectives and proportionality standards. This commitment to the rule of law and human life is ingrained within Israel's collective memory, institutions, and traditions, evident in the consistent application of legal principles upheld by the Israeli Supreme Court and institutional safeguards.

JURISDICTIONAL STANCE

The Court has confirmed its prima facie jurisdiction to issue provisional measures (refer to Order, para. 31). However, doubts arise regarding South Africa's genuine intent in initiating this dispute. Despite Israel's offer for consultations after receiving a Note Verbale from South Africa on December 21, 2023, regarding the Gaza situation, South Africa chose to pursue legal action rather than engaging in potentially constructive diplomatic dialogue. It is unfortunate that South Africa's decision to approach the Court followed Israel's attempt to initiate dialogue.

History demonstrates that lasting peace in the Middle East often results from political negotiations rather than legal recourse. The successful 1978 peace talks between Egypt and Israel at Camp David exemplify this principle, facilitated by the involvement of a third party, the United States. A similar approach could have been taken in this case. While the jurisdictional clause of the Genocide Convention does not mandate formal negotiations, the principle of good faith suggests that attempts should be made to resolve disputes amicably before resorting to litigation. South Africa's failure to initiate such efforts deprived Israel of a fair opportunity to engage meaningfully in addressing the humanitarian challenges in Gaza.

ANALYSING THE SITUATION IN GAZA

The appropriate legal framework for examining the situation in Gaza is under consideration. South Africa approached the Court based on the Genocide Convention, which grants the Court jurisdiction over disputes concerning the interpretation, application, or fulfillment of the treaty, including state responsibility for genocide. However, this doesn't imply that the Genocide Convention is the suitable legal lens for analyzing the situation.

In my opinion, the relevant legal framework for assessing the Gaza situation is International Humanitarian Law (IHL), rather than the Genocide Convention. IHL stipulates that harm inflicted on innocent civilians and civilian infrastructure should not exceed the military advantage anticipated from an attack. The tragic loss of innocent lives is not deemed unlawful as long as it adheres to the rules and principles of IHL.

During the drafting of the Genocide Convention, it was clarified that causing losses, even significant ones, to the civilian population during wartime operations typically doesn't constitute genocide. In modern warfare, belligerents often target factories, communication infrastructure, and public buildings, leading to varying degrees of civilian casualties. While efforts should be made to minimize such losses, addressing this issue falls within the realm of regulating the conditions of war rather than that of genocide.

INTENT OR NOT?

The assertions made by the President of Israel and the Minister of Defence of Israel do not offer sufficient grounds to infer an intent of genocide. Both officials have reiterated Israel's objective as the neutralization of Hamas, not the Palestinian populace in Gaza. Despite statements emphasizing humanitarian aid and efforts to minimize civilian harm, the Court overlooked these clarifications. Notably, statements by the Minister of Energy and Infrastructure lack relevance to military operations. The evidentiary presentation by Israel highlights measures taken to mitigate civilian casualties, including humanitarian aid provisions and assurances of avoiding harm to non-combatants.

However, the Court's failure to consider Israel's proactive measures and statements elucidating its intent is puzzling. Unlike the approach taken in the Gambia case, where compelling evidence underscored atrocities against the Rohingya, the Court's assessment in this instance appears to overlook crucial contextual elements that would dispel any notion of a plausible intent to commit genocide.

LEGAL ANALYSIS

A majority of 15 out of 17 judges, including the court's president Joan Donoghue of the United States, supported the imposition of provisional measures. Judge Julia Sebutinde of Uganda was the sole dissenter, voting against all six measures, while Israel's ad hoc judge, Aharon Barak, dissented on four measures. Barak expressed hope that one of the measures, aimed at punishing incitement to genocide, would contribute to reducing tensions and discouraging harmful rhetoric.

VIEW OF THE RESISTANCE AXIS

Hizbullah officials and parliamentary bloc members have previously endorsed South Africa's case against Israel. Additionally, Hamas official Osama Hamdan stated that the group would comply with any cease-fire order from the court if Israel did the same. Iran also expressed support for South Africa's stance today. This ruling is perceived as a moral setback for Israel and its Western supporters, echoing Nasrallah's earlier characterization. It bolsters the Axis's portrayal of Israel as a pariah state and its allies as complicit in genocide against those resisting Israel's actions. The Axis sees this as a significant public relations triumph, leveraging Israel's defiance of the Court and Western skepticism toward its rulings to expose their double standards to Western audiences. However, the ICJ's failure to call for a cease-fire and its lack of enforcement mechanisms may be cited as evidence of international law's unreliability, reinforcing the Axis's "logic of resistance." These perspectives are not necessarily conflicting: diplomatic and legal wins like this are valued in the Western context, akin to the significance of movements like BDS. Yet, while essential for Western nations, they are viewed as inadequate for achieving liberation from Israeli occupation.

REACTION TO THE ICJ RULING

Israeli Prime Minister Benjamin Netanyahu denounced the accusation of genocide against Israel as "outrageous" and reiterated its commitment to defending itself within the bounds of international law. Defence Minister Yoav Gallant expressed disappointment that the ICJ did not outright dismiss South Africa's petition, while National Security Minister Itamar Ben-Gvir made a sarcastic remark on social media, dismissing the ruling with a Yiddish-style putdown. Palestinians broadly welcomed the ruling, with Palestinian Foreign Minister Riyad al-Maliki praising the ICJ's decision as a victory for humanity and international law. Senior Hamas official Sami Abu Zuhri stated that the ruling further isolated Israel on the global stage. South Africa, a longstanding supporter of the Palestinian cause, applauded the ICJ ruling, with President Cyril Ramaphosa expecting Israel to comply with measures aimed at preventing genocide in Gaza.