The International Court of Justice (ICJ) recently issued a series of interim measures in South Africa’s lawsuit against Israel. In this lawsuit, South Africa claimed that Israel was violating its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) in the context of the war in Gaza.
Most of the discourse since the ruling has focused on the decision’s impact on Israel and its immediate implications. In short, the ICJ’s rhetoric reflected South Africa’s position against Israel, as it ruled that South Africa’s claim was not unfounded.
At the same time, in practice, the orders issued by the ICJ did not take into consideration Israel’s gravest apprehensions, namely, the order for the cessation of hostilities in Gaza. Instead, the ICJ instructed Israel not to commit genocide, which Israel says it is not committing; to ensure it supplies sufficient humanitarian aid, a rather vague term; and to prevent and punish incitement to genocide.
Indeed, had the ICJ ordered a cessation of hostilities, it could have had an impact on the war, and Israel would have faced great difficulties vis-à-vis some of its allies had it continued fighting despite the court’s rulings. While the worst-case scenario did not come to pass, the orders issued have some future effects.
What did the ICJ order?
First, the ICJ ordered Israel to submit a report within 30 days pertaining to its compliance with the court’s orders. It explicitly stated that should South Africa find Israel’s report insufficient, it may apply again to the ICJ for temporary injunctions. In other words, the hearing two weeks ago in the ICJ may only be the opening act for further hearings on requests for interim measures.
Nevertheless, if there is no change in the actual state of warfare or a humanitarian catastrophe, it is unlikely that the ICJ will change its mind and order a cessation of hostilities. On the other hand, if Israel’s report does not address the issue of incitement, it is indeed possible that the ICJ will choose to tighten its directives.
Moreover, the ICJ hearing on the merits of the South Africa v. Israel case is expected to persist for years. Throughout these proceedings, we should expect a series of discussions regarding Israel’s actions – discussions in which different countries will use the international podium to tarnish Israel’s reputation.
Second, next month, the ICJ is scheduled to start another proceeding that could affect Israel. The UN General Assembly asked the court for an advisory opinion on “the legal implications of Israeli policies and actions in the Occupied Palestinian Territories and East Jerusalem.” This proceeding presents claims against Israel and states that Israel’s continued control over the territories (mainly the West Bank and eastern Jerusalem) is illegal under international law.
Although an advisory opinion is not binding under international law and Israel chose not to participate in the proceedings, we must consider the interplay between these two cases. Given that Israel has indeed managed to avoid a cessation-of-hostilities order in the genocide case, many countries worldwide may see this as a sign that the ICJ is not a political or biased court but a professional one.
In the context of the genocide case, even the judges who come from Muslim countries (Lebanon, Morocco, and Somalia) did not believe that an order should be issued to stop the war. This makes it harder even for Israel’s allies to accept the idea that the ICJ is a political and biased body, as was broadly understood among supporters of Israel prior to the genocide case. It would be difficult for Israel to dismiss the advisory opinion as a meaningless, biased opinion.
Finally, the International Criminal Court (ICC), an international tribunal also in the Hague (which, unlike the ICJ, focuses on individuals, not states), is investigating the Israeli-Palestinian conflict. The ICC prosecutor has already visited the area several times and pledged to speed up investigations. Here, too, Israel may find itself before an international tribunal.
The international legal proceedings against Israel are part of an ongoing campaign led by the Palestinian Authority to turn the Israeli-Palestinian conflict into a global one. In the interim measures before the ICJ, Israel managed to get through the hearing.
However, the international legal system is deeply focused on Israel, and Israel faces a broad array of challenges ahead. International law, for better or worse, will continue to accompany the Israeli-Palestinian conflict. Israel would do well to continue treading with great care to adhere to it.
The writer is a senior fellow at the Israel Democracy Institute, and a member of the Faculty of Law at Ono Academic College.