Anthea Jeffrey: The dangers posed by the ICJ’s ruling against Israel

In a landmark decision on January 26, 2024, the International Court of Justice (ICJ) addressed South Africa’s application for provisional measures against Israel under the Genocide Convention. The court, while not ordering a ceasefire, instructed Israel to take measures to prevent genocidal acts in Gaza. The use of provisional measures, based on a lower standard of proof, has sparked debates over potential political abuse. The ICJ’s ruling, viewed differently by various commentators, has broader implications for international humanitarian law, with critics arguing it may weaken the prohibition against genocide.

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By Anthea Jeffery*

On Friday 26th January 2024 the International Court of Justice (ICJ) handed down its judgment in South Africa’s application for ‘provisional measures’ against Israel under the Genocide Convention of 1948. Having focused primarily on civilian suffering in Gaza over the past 100 days, the court found sufficient ‘plausible’ evidence that genocide might be in issue. It therefore instructed Israel to implement various ‘provisional measures’ so as to ‘prevent’ genocide from occurring.

The importance of provisional measures

‘Provisional measures’ are intended to provide an interim remedy and are thus ordered before the ICJ has found proof of genocide. Such proof – which commonly takes many years to muster and may never in fact be obtained – is required only when ‘final relief’ is being sought from the world court. By contrast, ‘provisional measures’ may be ordered on a significantly lower standard of proof: that it is ‘plausible’ that genocide might be occurring and that interim steps are needed to avoid irreparable harm. This lower bar makes provisional measures a swift and potentially valuable antidote to genocide. However, it also opens them up to political abuse.

The risk of political abuse is particularly high when an application for provisional measures is brought under the ‘wrong’ international convention. According to Judge Aharon Barak, Israel’s ad hoc nominee to the ICJ, ‘the drafters of the Genocide Convention clarified in their discussions that “the infliction of losses, even heavy losses, on the civilian population in the course of operations of war, does not as a rule constitute genocide”’.

Such losses are instead governed by International Humanitarian Law (IHL). This body of law, writes Barak, ‘provides that harm to innocent civilians and civilian infrastructure should not be excessive in comparison to the military advantage anticipated from a strike. The tragic loss of innocent lives is not considered unlawful so long as it falls within the rules and principles of IHL’.

The provisional measures sought and granted

In applying to the ICJ in late December 2023, South Africa’s prime objective was to obtain an order from the world court instructing Israel ‘immediately to suspend its military operations in and against Gaza’. This wording ignored the Hamas-Israel war and instead asserted that Israel was using its army ‘against Gaza’.

The ICJ declined to order a ceasefire. Instead, it directed Israel to ‘take all measures within its power to prevent’ killings and other genocidal acts carried out against ‘Palestinians in Gaza…with the intent to destroy’ this group or any part of it. It also instructed the Israeli state to ‘prevent and punish [any] direct and public incitement to commit genocide’, enable the provision of ‘basic services and humanitarian assistance’, preserve relevant evidence, and report back to the court within a month.

In virtually its only reference to Hamas, the other party to the war in Gaza, the ICJ also ‘called for’ the immediate and unconditional release of all hostages abducted on 7th October 2023 and held since then. Since the application was brought under the Genocide Convention – to which Hamas is not a party – the ICJ was unable to issue any binding order against the organisation.

South Africa and many other commentators have hailed the ICJ ruling as a great victory for the Palestinians because it is ‘tantamount to a ceasefire’ and finds it ‘plausible that Israel is committing genocide’. These assessments exaggerate what the ICJ said. Other commentators, having looked more closely at the actual wording used, have seen the judgment either as relatively insignificant – ‘largely symbolic’, as The Economist reported – or as a victory for Israel, albeit one reluctantly granted.

However, the mere fact that the ICJ saw fit to issue provisional measures – which can be ordered only where allegations of genocide are ‘plausible’ – will undoubtedly be used by Israel’s many enemies to mount escalating propaganda and sanctions campaigns against the Jewish state. These campaigns will brush aside the legal niceties and nuances of the world court’s ruling. Instead, they will keep tarring Israel with the genocide brush until the association between Israel and genocide is clearly fixed in the minds of millions of people across the world.

The political importance of the genocide accusation explains why South Africa opted to rely on the ‘wrong’ international convention in its application to the ICJ. What is more difficult to understand is why the ICJ did not acknowledge that the Genocide Convention is not intended to deal with civilian deaths in times of conflict – and why it followed South Africa’s lead in ignoring the vital distinction between the horrors of war and the horrors of genocide.

The Hamas/Israel war

Hamas provoked the current Gazan war via a heinous attack on Israel on 7th October 2023 in which some 1 200 people were killed and another 240 taken hostage. Since then, Gaza has suffered the heart-wrenching trauma of a war that is unavoidably being fought in a built-up urban environment where the enemy force is embedded in the civilian population and deeply entrenched in civilian infrastructure.

Since its October massacre, Hamas has fired some 12 000 rockets into Israeli territory and continually assailed Israel’s ground forces in the strip. It has also vowed to continue its murderous attacks – to ‘repeat October 7 again and again’, to cite its own words – until all Israeli Jews have been eliminated and their state dismantled.

Hamas has considerable capacity to wage this war. Since it took power over Gaza in 2007, it has smuggled in and stockpiled large arsenals of sophisticated weapons. It has also constructed a maze of underground tunnels (the ‘Gaza Metro’) that stretch for more than 500 kilometers, often extend into Israel, and include thousands of access points in homes, schools, hospitals, and mosques.

Israel cannot protect its citizens against repeat attacks of the 7th October kind unless it destroys most of the tunnel network in which Hamas fighters and commanders are concealed and from which they carry out their assaults. But the Hamas tunnel network is so inextricably interwoven with houses, hospitals, and other civilian structures that Israel cannot destroy it without simultaneously killing and injuring many of the civilians Hamas uses as human shields for its fighters, weapons, and supplies.

Hamas’s use of human shields is intrinsic to its war strategy. Hamas intentionally exposes the Gaza population to death, injury, and destruction by building its tunnels and access points under and in their homes, schools, and hospitals. It uses schools and other civilian structures to fire thousands of rockets into Israel, knowing these attacks are sure to invite counter assaults. It also refuses to allow Gazan civilians to shelter in its tunnels, instead reserving these for its own use.

These actions by Hamas breach international humanitarian law. They also confront Israel with a ‘lose-lose’ choice. Israel must either risk its citizens’ lives by leaving the Hamas tunnels in place – or it must act to destroy them knowing that many civilians will unavoidably be killed.

Since Israel cannot choose the former course, it has opted for the latter – which has predictably resulted in many civilian deaths in Gaza. Hamas, helped by its allies around the world, is now using these casualties as proof of a spurious ‘genocide’ charge and to demonise the Jewish state.

How disproportionate are the civilian deaths?

In support of this propaganda offensive, Hamas has continually put out unconfirmed reports of an ever increasing number of civilian deaths for which it (and most commentators) have blamed Israel alone. Yet thousands of the people killed in Gaza, including children in their teens, are not in fact civilians but rather Hamas fighters or auxiliaries dressed in civilian clothes. According to Israel, Hamas has itself caused many Gazan deaths via misfired rockets (some 2 000 have landed inside the strip) and the booby-trapping of buildings to trigger their collapse.

Since the start of the Gazan war, a valid question has arisen as to whether Israel is infringing international humanitarian law by killing and harming civilians to an extent disproportionate to its military objectives. That question, which needs fair and objective evaluation, is different from the incendiary accusation that Israel is committing genocide against the people of Gaza.

Estimated death tolls cannot be confirmed, making the issue difficult to assess. However, Professor David Benatar, emeritus professor of philosophy at the University of Cape Town (UCT), has done a rough calculation of the proportion of civilian deaths – which he bases on figures put out in January 2024 by Hamas, the Israeli Defence Force (IDF), and Professor Leslie Loudon, professor of public health medicine at UCT and a strong critic of Israel.

According to Hamas, the Gazan death toll at the relevant time was 22 000. The IDF claimed that this figure included 9 000 Hamas fighters, while Loudon estimated that 1 000 Gazan deaths were from ‘friendly fire’ (misfired rockets, in particular). Writes Benatar: ‘If we accept the Hamas claim of 22 000 dead, the Israeli figure of 9 000 combatants killed, and even Prof Loudon’s 1 000 “friendly-fire” fatalities, we are speaking about 12 000 civilian deaths. That is fewer than two civilian deaths per combatant killed by Israel – in a very densely populated area. That is tragic, but it is certainly not evidence of totally indiscriminate bombing by Israel and certainly not of “genocide”.’

Genocide requires an intention to destroy an ethnic or religious group

Genocide requires an ‘intent to destroy’ an ethnic or religious group, either in whole or part, by killing or otherwise harming its members. There must be convincing proof of such intent before the ICJ can make a finding of genocide or provide final relief against its perpetrator. The standard of proof for provisional measures is lower, but (as Judge Barak says) ‘some proof of intent is necessary. At the very least, sufficient proof to make a claim of genocide plausible’.

The relevant precedent is the Gambia case in 2020, in which the ICJ issued provisional measures against Myanmar for plausibly genocidal acts against the Rohingya. Here, however, there was substantial evidence of the necessary intent to destroy this ethnic group in two reports issued by an Independent International Fact-Finding Mission. These reports were based on 400 interviews with victims and eyewitnesses, satellite and other imagery, expert interviews, and raw data, buttressed by a careful cross-checking of information.

In South Africa’s case against Israel, no comparable evidence was available. Instead, the ICJ relied on casualty and other statistics seemingly provided by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA). However, these figures were in fact supplied by Hamas, which the court omitted to mention.

The ICJ also drew on warnings by the Under- Secretary-General for OHCA that Gaza had become ‘a place of death and despair’. It cited statements by the World Health Organisation cautioning that ‘starvation, destitution and death were evident’. It quoted the Commissioner-General of the United Nations Relief and Works Agency (UNRWA), who warned of ‘the lifelong scars, both physical and psychological’ likely to result from ‘the mass displacement of a population…constantly uprooted and forced to leave overnight’.

As Judge Barak points out, these statements ‘describe a tragic humanitarian situation, which is the unfortunate result of an armed conflict’. However, they are ‘insufficient to prove plausible intent’. On the contrary, ‘none of these statements mentions the term “genocide” or points to any trace of intent’.

The ICJ also laid great stress on the intemperate statements made by three Israeli leaders: the prime minister, the minister of defence, and the minister of energy and infrastructure. However, it paid little heed to what the Israeli war cabinet had said and done to reduce civilian deaths and facilitate humanitarian assistance.

Far from seeking to destroy the population of Gaza, Israel had warned civilians of pending battles and helped them move to areas it hoped would prove safer. As part of its humanitarian aid, as Israel told the court, it had also restored bread supplies; provided two new water pipelines and repaired existing infrastructure; established six new hospitals (with two more on the way); increased deliveries of fuel and cooking gas; and provided tents and winter equipment for those displaced from their homes.

The ICJ recorded Israel’s evidence on these points but then brushed it aside without explaining why. Instead, it used unreliable, partisan, and often irrelevant evidence to conclude, that ‘at least some of the rights claimed by South Africa…are plausible’. This implied that Israel’s intent to destroy the people of Gaza had sufficiently been shown. However, the wording used was vague, while the court failed to give adequate reasons for this vital conclusion.

The ramifications of the ICJ ruling

The best and quickest way to end the conflict in Gaza is for Hamas to lay down its arms, release its remaining hostages, abandon its determination to destroy Israel, and commit itself to a peaceful two-state solution.

However, this option has been overlooked in most of the massive media coverage of the Gaza conflict, as well as South Africa’s genocide accusation and its partial endorsement by the world court. This omission – coupled with all the flaws in the ICJ ruling – has allowed Hamas and its allies to use the ICJ as their catspaw in their struggle to demonise, demoralise, and ultimately dismantle the Israeli state.

The ramifications for both the ICJ and international humanitarian law are disturbing too. In relying on such flimsy evidence of genocidal intent and setting the bar for ‘plausibility’ so low, the ICJ has debased the meaning of genocide and weakened the prohibition against it. It has also effectively condoned – and so implicitly encouraged – the use of civilians as human shields in times of conflict.

Already, moreover, the judgment is being used as a crucial element in a longer-term strategy against Israel. Within hours of its being handed down, the ICJ ruling was cited in an American district court in Oakland (California) in litigation aimed at stopping the Biden administration from supplying ‘tanks, Hellfire missiles, bunker-busting bombs’, and other arms to Israel.

This case has been brought by the American Centre for Constitutional Rights. In argument to the Oakland court, the Centre noted that the Genocide Convention is binding on all states party to it – as the ICJ had stressed in its ruling. The US is therefore obliged to ‘prevent and suppress’ any act of genocide by any other party, including Israel. In evidence echoing that put to the ICJ, Palestinians in Gaza and Ramallah recounted the deaths of their loved ones in the strip and emphasised the destruction and displacement that Israel had caused. A former US State Department director detailed the ‘vast amount of military critical technologies and capabilities’ the US was providing to Israel, much of which was being ‘used in ways contrary to US law and Israel’s own commitments…under international law’. Putting an end to this arms flow would limit Israel’s capacity to cause further harm, he said.

The ICJ’s judgment will make it easier to secure an arms injunction of this kind – if not in the Oakland court then via the flurry of similar litigation likely to be lodged. The ruling has also given fresh impetus to a long-standing campaign for economic and other sanctions against Israel. Clearly, the more Israel is associated with the heinous crime of genocide, the easier it will be to isolate it, cut it off from the world economy, and curtail or terminate the US military support vital to its survival.