Short of a Ceasefire, Does the ICJ Ruling Impute Genocide to Israel?

And if the Court did not order a ceasefire, does this mean that the verdict is futile?

On 26 January, the International Court of Justice (ICJ) delivered its verdict on the ongoing South Africa v. Israel case, proffering the first legally binding directive on the Israel-Hamas war that has been raging since 7 October 2023.

The war started with the militant group from Palestine launching an armed attack on Israel that claimed over 1200 lives. They also took over 250 Israelis hostage.

Israel responded with the relentless bombing of Gaza wherein the death toll from the Palestinian side has crossed 26,000, with more than 62,000 injured and 85 per cent of residents displaced from their homes.

While the international community stands petrified at the display of such a gross violation of human rights, global political powers continue to debate over the proportionality, legality, and necessity of the attacks. Although, answers to these debates hold immense significance in the larger subject of International Law, what is appalling is that lives continue to be lost, and Gaza continues to be ravaged.

The ICJ’s judgment was, therefore, exigent to provide immediate relief to the aggrieved and asserted the need for a much-needed check on the genocidal conditions that have been unfolding in Gaza.

In the context of international political lobbies dictating the global response to the conflict, this judgment was being viewed as a potent tool to bring this parade of slaughter to a halt and subsequently create a segway for a more decisive discussion on whether the war was justified and which side bore the brunt of guilt.

Unfortunately, but not surprisingly, the ICJ did not quite do either. While South Africa hailed the verdict as a “decisive victory,” Israeli PM Benjamin Netanyahu has asserted that “nothing can stop Israel.”

So Does This Mean That the Verdict is Futile?

Certainly not.

Before we delve into the ramifications of the verdict, it is crucial to understand the rubric of powers and procedures of the ICJ, and the nature of the dispute brought before it by South Africa. Against the backdrop of a persistent armed conflict panning for over two months, with little to no binding international backlash, this case was critical since it effectuated a channel to impose indissoluble legal obligations on the warring parties. On that account, this in itself was an essential step towards restoring peace. 

Secondly, the ICJ derives its powers from the Statute of the International Court, 1945, and is bound by the provisions of the Statute. Accordingly, it can adjudicate disputes submitted before it by countries that have explicitly accepted its jurisdiction.

So, the first question that the court had to decide in this case and others was whether it had jurisdiction over the dispute at hand or not. This is especially important here because it could dictate whether any imperatives could be issued against Israel in the current circumstances to which it would be bound to adhere. 

Thirdly, the ICJ, while settling disputes, looks into the specific demands before it made by the applicant country. Therefore, if the application seeks indications of any provisional measures, then the Court shall limit its scope to determining the applicability of such provisional measures without probing into the merits of whether any international obligation is violated or not.

Article 41 of the Statute endows the obligation on the Court to protect the rights claimed by the applicant country, pending its verdict on the merits of the case. In the current case, South Africa categorically approached the ICJ with demands for provisional measures against Israel. So, if our expectations of the ICJ calling out Israel overtly for human rights violations were not met, it is because no demand for such a stance was made for it at this stage. This is, however, a question for a later stage of the case when the merits would be evaluated. 

In light of this, the verdict in its current shape does serve the purpose of addressing the ongoing war and becomes the foremost tool to deter Israel’s unhinged lashes at Gaza’s existence. 

What Does the Verdict Say? Does It Hold Israel Guilty of Genocide?

South Africa brought Israel before the ICJ based on either’s treaty obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, 1951, commonly known as the “Genocide Convention”.  It is, therefore, evident that South Africa deems Israel guilty of committing genocide and among other provisional measures sought an immediate suspension of the military operations in Gaza.

The ICJ in the current verdict does not explicitly attribute any guilt of genocide to Israel but unequivocally acknowledges that some of the circumstances that have unfolded in Gaza squarely fall under the definition of genocide as enshrined under Article II of the Genocide Convention.

It alson states that the Palestinians in Gaza have the right to protection from genocide and that South Africa, under its obligation under Article VIII of the Geneva Convention, was entitled to initiate action against Israel. The Court further clarified that Article IX of the Convention and Article 36 of the Statute warrant its competence to adjudicate the current case and impose relevant directives upon Israel. 

Now, whether or not Israel’s culpability of genocide can be clearly deduced from the verdict, it is still extremely significant because by admitting a case under the Geneva Convention and upholding the rights claimed by South Africa for the protection of the Palestinian people from genocide (plausible under the international rule of law), the verdict becomes the first legal instrument to hold Israel accountable in some form. Further, the verdict unequivocally observes that Israel’s military operation has resulted in “catastrophic civilian harm.” This is the first indisputable and binding legal comment that negates any attempt of Israel to absolve all blame in the name of self-defence as it has been doing so far. 

The verdict disappoints us in evading a ceasefire order but by pronouncing the interim measures as an order to Israel to prevent any acts of genocide, punish any incitement to genocide, take immediate and efficient steps to provide humanitarian assistance to the people adversely impacted in Palestine, among other measures, it finally accords an unavoidable legal obligation upon Israel. 

Is This Adequate Relief for the People of Palestine?

Unfortunately, without a ceasefire order, the verdict fails to assuage the wounds of the Palestinian people. These interim measures are significant to counter some effects of harm and also send out a strong political message, especially because it was a largely unanimous decision from all judges, including Judge Donoghue of the US, a country that continues to maintain an unwavering pro-Israel stance.

The international community has regretted the indecisiveness of the ICJ in the current case unlike its stance in Ukraine v. Russia (2022). However, there is, in fact, one legal instrument that legitimately deters the ICJ from doing so. This is the right to self-defence guaranteed under Article 51 of the UN Charter.

Given that Hamas had launched the first attack and continues to hold Israeli citizens hostage, a blanket ceasefire order would likely undermine Israel’s right to self-defence. 

Effectively, the ICJ fulfilled its legal obligations within the technical bounds of International Law. But, as the ultimate custodian of the rights of global citizens, it does little for the people of Palestine, at least in the current verdict. One hopes for more redemption at the merit stage. 

(Yashaswini Basu is a Bengaluru-based lawyer. This is an opinion article and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)