The International Court of Justice ruling on the case against Israel by South Africa was announced yesterday. The full ruling and the statements of individual judges can be found here. The video of the proceedings can be found here. The ICJ ruling on this case has been greatly anticipated. And there have been a number of responses to it.

In this video, the host argues that the ruling is one without teeth because there are no actionable aspects of the ruling. This is probably the point of view shared by many around the world. And since the ruling will not affect the ground realities of the Palestinians in Gaza immediately, or likely even in the near future, many, if not most, Palestinians are understandably disappointed.

However, in this video, Frank Barat speaks with four guests, all of whom are legal experts. In the video, Daniel Machover observes that, while any ruling in favor of South Africa’s petition would have been positive, the fact that each point was passed by an overwhelming majority is significant. In particular, the fact that Justice Donahue from the USA voted against Israel on all points puts pressure on the USA. In addition, the ruling calls on all nations that are a party to the genocide convention to do what is necessary to ensure that no genocide occurs. I think this is brilliant! The ICJ is saying, in effect, “Each nation has a conscience and should act accordingly. Do not think the ICJ is here to solve your problems.” This places the onus of solving the current problem, and of ensuring future problems do not arise, on the signatory nations. States that have close ties to Israel now have the responsibility of using diplomatic and political means to apply pressure on Israel to adhere to the rulings. Machover also looks at how the ICJ has worded the rulings. For example, it states categorically, “[T]he military operation conducted by Israel after 7 October 2023 has resulted inter alia, in tens of thousands of deaths and injuries,” thereby allowing future arguments to be based on an ICJ ruling rather than on statements from any lower entity.

William Schabas observes that the court has asked for a report from Israel within a month and a response from South Africa to that report. He argues that this is, therefore, an active and dynamic order. In my view, the court is giving Israel a way out of having this escalate further. If they take definitive action that satisfies South Africa, South Africa can withdraw its case against Israel. In other words, if Israel’s report after a month satisfies South Africa that sufficient measures have been taken to stop genocide, then there would be no need to take the case further. I think this too is brilliant since it places the onus of action on the two nations that are named in the case.

Schabas says this order is significant, especially given the voting. He also said that the carefully worded order tells us how seriously the court has taken the matter. He observes that the ruling of the court, “The State of Israel shall 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 Palestinians in the Gaza Strip,” is something that South Africa had not requested. This ruling passed with even Israeli justice Aharon Barak voting in favor of it. Schabas points out that the word ‘immediately’ indicates that the court believes such actions are not currently being taken, which is a way of saying that genocide is taking place without using the word ‘genocide’. Schabas argues that since this is a provisional ruling, the court has to be careful in how it words the ruling so as not to prejudice the actual case proceedings. This had not occurred to me. Given how precedence works in legal settings, the court was perhaps severely limited in the language it could use. However, by prefacing the ruling with a clear description of the ground realities in Gaza and quotes from senior Israeli officials, the ICJ has framed the ruling within the context of genocide.

Noura Erakat observes that the ruling refers only to official UN documents and statements by Israeli officials. This aligns with how South Africa presented its case, which indicates that the court agreed hugely with the framework within which South Africa had brought the case to the ICJ. She said that the onus of taking this forward remains with the people of the nations of the world, who should take the overwhelming majority of the rulings to ask their nations to side with the rulings and pressure Israel to comply. She said that the order to cease genocidal acts places the onus on Israel. Since states have a right to defend themselves under International law, they could not have imposed a ceasefire on Israel given that the ICJ has no jurisdiction over Hamas. However, the positive words used in the ruling makes it clear what the ICJ expects Israel to show in its report next month.

Diana Buttu argues that the ruling, a first of its kind against Israel, marks the end of Israeli impunity. She says that we have to ask ourselves what it means when the court asks Israel to take measures that would prevent genocide. The statement, while not admitting that genocide is occurring, makes Israel responsible for what it does in the wake of the ruling. If it is found later, probably through South Africa’s questioning of Israel’s report next month, that Israel did not take necessary measures, then Israel will have been found violating the ruling, which as a UN member it cannot do!

Buttu also refers to the three high ranking Israeli ministers that the ICJ ruling quotes, all of which indicate genocidal intent. Hence, even though the ruling does not pronounce definitively that genocide is occurring, the quotes make us ask ourselves, “If that is not sufficient to indicate genocidal intent then what is?” Buttu agonizes over the fact that it had to come to such a massive death toll before we could reach such a ruling. Buttu also observes that, given the high visibility of this case, the ruling can be a tool to empower the people of the world to revitalize grass roots movements that will force Israel to back off from its current policies.

When I watched the proceedings yesterday and heard the vote record, I was struck by the fact that Justice Julia Sebutinde from Uganda voted against every ruling. My initial reaction to her was one of disbelief and incredulity. I could not believe that such an experienced justice, who has championed human rights in the past, could vote against the rulings. But I read her dissenting opinion and realize how crucial her voice is to the case. She raises some points that were not directly addressed either by South Africa or Israel in their presentations. This forces both parties to plug holes in their arguments. As a ‘devil’s advocate’ here Justice Sebutinde has, in my opinion, provided a very valuable service by being the lone dissenting voice.

Four other justices provided separate statements. Justice Barak from Israel explained in his separate opinion what he believed about the proceedings. His arguments were primarily that South Africa had not shown genocidal intent on the part of Israel and that, therefore, the ICJ did not have jurisdiction over this case. He argued that, since Hamas has declared it would repeat the atrocities of 7 October 2023, it was right that the court did not call for a ceasefire. This is understandable, as expressed by others earlier.

Justice Barak also explained that he sided with two of the rulings because they were humanitarian in nature. He also expressed an issue that the court did not explicitly ask South Africa to take measures to ensure the release of the hostages. Indeed, I agree with him. The ruling declares, “The Court deems it necessary to emphasize that all parties to the conflict in the Gaza Strip are bound by international humanitarian law. It is gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups , and calls for their immediate and unconditional release.” In my view, this is a weakly worded statement and, since the ICJ has no jurisdiction over Hamas, it should have placed responsibility for these lives that are out of its control on the party that brought the case and over which the ICJ has control.

Justice Georg Nolte from Germany stated, in his declaration that, he did not think South Africa had presented a solid case to support genocidal intent that would hold up in the next state of the proceedings. However, since the ICJ only had to rule on the issue of ‘plausible genocide’ he was voting in favor. I think this is excellent because it tells South Africa that they need to bolster their case for the next stage or risk losing the votes of some of the justices. Justice Nolte also admitted the limitations that the ICJ has in light of not having any jurisdiction over Hamas and insisted that the International community needs to hold Hamas responsible in other ways for any crimes, including those amounting to genocide, committed by Hamas. This, I think, is a great declaration and is a call to the nations of the world not to think that, even if Israel is committing a genocide, this means that Israeli lives matter any less.

Justice Xue Hanqin from China reminded the world in her declaration that the world had failed to respond after the 2004 resolution Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory and claimed that this is why the people of Palestine have faced extremely adversarial conditions ever since. Her statement calls on the nations of the world not to sit back this time.

Justice Dalveer Bhandari from India also issued a declaration in which he gives his rationale for voting as he did. Like Justice Nolte he observes that South Africa needs to make its case stronger if it is to withstand the scrutiny required at the merits stage. He also insists that the nations of the world not limit their proceedings to the narrow definition of genocide but to expand it under the framework of humanitarian law as well. In my view, since proving genocide will be a tall order, Justice Bhandari’s advice is something that the nations need to heed.

All in all, in my view, while many people are dissatisfied that the ICJ did not rule that Israel was plausibly guilty of genocide nor ordered a ceasefire, it did something that, in the long run, is much better. The ICJ ruling places responsibility for justice squarely on the shoulders of Israel. For example, when the ICJ pronounces, “The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide , in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this
Convention,” it is asking Israel, “Are you a state that is honorable enough to live up to its obligations?” When the ICJ states, “The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above,” it is asking the government of Israel if it is indeed a democracy that has control over its military. When it rules, “The State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip,” the ICJ is calling on the world to decide if the government of Israel has the ability to keep its citizens and its leaders in line.

Further, when the ICJ says, “The State of Israel shall 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 Palestinians in the Gaza Strip,” the ICJ is asking Israel, “Do you know what the basic human needs are?” and “If you do not provide basic human needs to the Palestinians can we not conclude that you view them as less than human?” When the ICJ states, “The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip,” it is asking Israel, “Are you an honest state that will bear to be scrutinized by the International community?”

In summary, the ICJ ruling has done better than what a short term call for stopping genocide or a ceasefire would have done. The ruling calls on the nations of the world to see how Israel responds to the ruling and then ask themselves, “Is this a nation that even understands what it means to be human or is this a nation that thinks it can continue to be included in the International community while refusing to treat other humans as humans?” We may have preferred if the ICJ ruled definitively against Israel with the words that South African wanted. But this ruling asks us to take responsibility for what happens next. If Israel does not submit a report, what do we do? If Israel submits a report that does not satisfy South Africa what do we do? If the report satisfies South Africa how do we respond? The ICJ has placed the onus on us the citizens of the world. Will we show ourselves as true humans and hold the leaders of our nations responsible? Or will we show ourselves to be sub-human, requiring external parties to force us to behave in civil ways? Yes, the ICJ ruling is asking each one of us, “Do you know what it means to be human and to live civilly with other humans?”