A dilemma for the ICJ - Marc Weller

Marc Weller is Professor of International Law in the University of Cambridge and an Associate Tenant at Doughty Street Chambers.

This article first appeared in the New Law Journal on 2 February 2024

A dilemma for the ICJ

International law has made the global headlines again. The eagerly anticipated preliminary measures Order rendered by the International Court of Justice in the Gaza Genocide case brought by South Africa against Israel has commanded world-wide attention. As could be expected, the decision has received a mixed reception.

The President of South Africa, Cyril Ramaphosa, immediately hailed the decision as a victory for international law, for his country and for Palestine. Israeli Prime Minister Benjamin Netanyahu swiftly rejected it as an outrageous travesty, given that the Court had entertained the suggestion that Israel might be conducting acts of genocide. In his view, the case should have never been found to be admissible.

Outside of the two contending states, the views were somewhat more mixed. Even the supporters of the application by South Africa were split. Some human rights defenders argued that the Court vindicated international law when ordering Israel to ensure that its forces must refrain from acts that might constitute genocide. Other campaigners complained angrily that the Court had not even mentioned the cease-fire requested by South Africa, not to speak of ordering one.

This clash of views aptly summarizes the dilemma faced by the Court in this instance. It could hardly appear indifferent to the dramatic humanitarian crisis in Gaza. A failure to pronounce itself in favour of international law might have seemed as an abandonment of its role as the principal judicial organ of the United Nations.

On the other hand, the judges at The Hague always feel intensely discomfited when a matter of high politics is referred to them, precisely because the international political organs of the world have been unable to grapple with it. In this instance, the UN Security Council, which exercises primary responsibility in relation to international peace and security, has been ineffective in the face of the violence. But if the Security Council is unable to end the conflict, it is unlikely that the Court can end it instead by simply ordering it to end.

Admissibility

Of course, the Court has always taken the view that it is entitled to address the legal aspects of any case, however politically sensitive. It has decided a long list of cases involving even the use of force between states, including the subversive intervention by the USA against Nicaragua and the mining of its harbours, repeated armed actions in central Africa, the conflicts in the former Yugoslavia, US attacks against certain Iranian installations, the conflict between Russia and Georgia, and most recently between Russia and Ukraine.

In a change to its traditional stance, the Court has recently allowed states other than the immediate victim of a violation of a core rule of international law to bring a claim. This applies where a legal obligation of supreme interest to the international community as a whole is concerned (erga omnes obligations).

In this instance, the victims of the alleged violations of the Genocide Convention are the people of Palestine. Still, South Africa can claim to be sufficiently affected by this possible violation because it can claim to have a legal interest in vindicating the global prohibition of genocide, acting as an agent of the international constitutional order.

This practice was first inaugurated in 2012, when the ICJ allowed Belgium to raise a case under the International Convention against Torture involving Senegal. This finding was confirmed more recently in the interim measures proceedings between The Gambia and Myanmar, concerning alleged acts of genocide against the Rohinga population. It is noteworthy (and the Court did expressly note) that this previously highly controversial issue was not even raised by Israel in these proceedings, supporting the view that the matter is now regarded as settled law.

Jurisdiction

While this approach is certainly forward-looking, the Court still remains constrained by the principle that it can only hear a case between states that have consented to its jurisdiction. The Court cannot hear cases where only the one side has accepted its power to do so, or at its own initiative, where neither side has done so.

In this instance, the only source of jurisdiction was supplied by the Genocide Convention. Under Article IX of the Convention, any state party can bring an action relating to the interpretation, application or fulfilment of the convention against another party. Hence, from the outset, it was clear that the Court would only be able to address issues immediately connected with an allegation of genocide. This would exclude other issues related to the conflict.

For instance, in the genocide case brought by Bosnia-Herzegovina against the rump Yugoslavia under the Genocide Convention in 1993, the Court failed to address the question of whether or not the UN arms embargo could still be applied against Bosnia. This was a critical issue for Bosnia, which argued that it was unable to resist the campaign of genocide directed against its people without the supply of arms.

Israel and some commentators have criticised South Africa for artificially ‘squeezing’ the situation in Gaza into the frame of the Genocide convention, with the aim of gaining the jurisdiction of the Court in order to obtain a cease-fire order. Similar criticisms have been made in relation to other cases, such as the action brought by Georgia against the Russian Federation under the Convention on the Elimination of all Forms of Racial Discrimination. It has been argued (unsuccessfully) that Georgia is actually seeking to challenge the use of force itself, rather than specific human rights concerns covered by the jurisdiction based on that Convention.

A ’Plausible Case’ that Genocide is Occurring?

In a preliminary measures phase, the applicant merely needs to establish that there exists a prima facie case in favour of the existence of jurisdiction. In this instance, South Africa only had to make out that a ‘plausible’ argument can be made that Israel’s conduct in Gaza may fall within the ambit of the convention. This required three elements.

First, the Palestinians had to qualify as a group protected by the Convention. Second, the alleged actions of Israel had to fall into the category of acts proscribed as acts of genocide by the Convention. And third, there is the issue of the specific intent.
The Genocide Convention defines genocide as acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. The Court confirmed that the people of Palestine qualify as one such group. It also confirmed that the population element in Gaza alone constitutes a sufficiently significant element of that group to be eligible for protection under the terms of the Convention.

Second, the Convention identifies in Article II the actions that can constitute genocide:

(i)    Killing members of the group;
(ii)    Causing serious bodily or mental harm to members of the group;
(iii)    Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
…

Rather than debating the facts, the Court simply relied on the reports and findings of high UN officials and agencies, like the UN Secretary-General, the humanitarian and human rights bodies of the UN, and the UN’s relief organization based in Palestine. As the principal judicial organ of the United Nations, the Court was fully entitled to do so.

The Court noted that there had been more than 25,000 casualties, mainly civilian. 1.7 million civilians, i.e. more than three quarters of the population of the territory, had been forcibly displaced, their homes and the civilian infrastructure largely destroyed, and food, water, energy, and medical supplies were being denied or severely restricted. Overall, it confirmed ‘the catastrophic humanitarian situation to be at serious risk of deteriorating further.’

Third, the impugned acts must have been carried out with the intent to destroy the group in whole or in part. This, it was thought, would be the most difficult part for the applicant. Israel had argued that the statements of some of its high officials suggestive of genocidal intent were irrelevant. They were addressed at Hamas, not the Palestinians as such, and the individuals concerned may have been Ministers or army officers, but, it was asserted, they were not in actual charge of the war.

The Court however relied on statements of the Israeli President, the Minister of Defence, and the Minister of Energy and Infrastructure. These are undeniably involved with the conduct of the war at the highest level. The statements appeared to dehumanize the Palestinian population and could conceivably be considered as indications of intent, at least at a level sufficient for these preliminary proceedings.

No Direct Finding of Genocide

At this juncture, the Court circumnavigated a critical point with utmost caution. It did not formally conclude, even in a preliminary way, that Israel has engaged in genocide or acts of genocide. Rather, it merely found that South Africa could plausibly argue that the impugned conduct falls within the ambit of the Genocide Convention.

Israel seems to have missed that point. It may not have done itself great favours by loudly rejecting the ruling as outrageous and insulting. This may compound the impression that the Court has in fact found that genocide had occurred. In fact, it carefully avoided saying just that, at least expressly.

No Cease-Fire Order

Provisional measures wil be imposed as necessary to preserve the rights in question from irreparable prejudice while the court hears the full case. The applicants had hoped that a finding that genocide was taking place would mean that the Court would need to order that the armed campaign characterized by genocidal acts would have to stop immediately. In relation to the Russian invasion of Ukraine, the Court had done so.

However, in that instance, Russia had claimed that its use of force was justified, inter alia, by a genocide conducted by Ukraine against Russian speakers in its territory. The Court entirely denied that claim. As this removed a major element of the supposed justification for Russia’s invasion, it also felt able to order a cease-fire and the withdrawal of Russia.

In this case, the shoe sits on the other foot. Israel argues that it is the victim of an armed attack conducted on 7 October, and ongoing in the form of rocket attacks and the holding of hostages in Gaza. It asserts that the Court cannot suspend its on-going right to self-defence. While the Court would in fact have such legal authority, it is clear that the Court would have been very hesitant to do so.

South Africa had claimed, following an earlier ruling of the Court in the Israeli Wall case, that the right to self-defence does not apply at all. The attack of 7 October emanated from what much of the organized international community, including the United Nations, still considers occupied territory. It did not emanate from a foreign state but from an area under Israel’s own control, technically rendering self-defence inapplicable.

Instead of addressing this point, or indeed purporting to terminate the claimed right to use force in self-defence through a cease-fire order, the Court merely addressed the modalities for the use of force. In its order, it essentially restated the terms of the Genocide Convention, requiring Israel to ensure in its armed campaign that the prohibited acts listed in Article II will be prevented.

Moreover, the Court instructed Israel clearly to ‘take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by the Palestinians in the Gaza Strip.’

Under the order issued by the Court, which is legally binding, Israel must also punish those guilty of incitement to genocide and prevent further such statements. On the other hand, exhibiting a sense of balance, the Court also expressed concern for the hostages still held by Hamas and called for their immediate and unconditional release.

An Order without Effect?

The failure to impose a cease-fire, and Israel’s immediate rejection of the ruling of the Court, might suggest that South Africa’s action was entirely irrelevant. However, that is not the case.

The Court has confirmed that international law applies even in the aftermath of the horrible attack of 7 October. It has at least implied that Israel’s conduct may have overstepped the bounds of humanity by confirming that a plausive argument can be made that the impugned acts fall within the ambit of the Genocide Convention. And, in a final twist, it has obliged Israel to report to it within one month on action it has taken to implement the order. Moreover, Israel must preserve any evidence that may be suggestive of genocidal intent in its official and other documents.

International observers have noted that Israel already modified its conduct somewhat with the bringing of the case by South Africa at the end of December, easing humanitarian access and emphasizing that it seeks to avoid indiscriminate targeting of civilians. The Court ruling will add to the pressure exercised even by Israel’s allies like the US to moderate its military campaign and bring it to an end without further, apparently excessive and disproportionate bloodshed.