The pivotal function of international law is to hold states accountable. The historic decision of the International Court of Justice (ICJ) against Israel must be seen in this light. This dispute arose after South Africa moved the ICJ, alleging that Israel’s offensive military action in Gaza had resulted in the genocide of the Palestinian people, as defined in Article II of the Genocide Convention, 1948. While the ICJ is yet to rule on whether Israel is committing or has committed genocide in Gaza, it did indicate provisional measures, that is, issued an interim order to protect the rights of the parties under the Genocide Convention till the time it decides the issue on merits. At this stage, the ICJ has ruled that it was plausible that Israel was committing genocide in Gaza. Echoing how precarious things are, the ICJ said that the humanitarian situation in Gaza is “catastrophic”, with more than 25,000 Palestinians dead.
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Conditions to be satisfied
As Robert Kolb and others have argued, under Article 41 of the ICJ Statute, the court will indicate provisional measures if the following conditions are satisfied. First, the ICJ should have prima facie jurisdiction, that is, the act complained of should fall within the purview of the Convention under which the claim has been made. Second, there must be a link between the measures that the applicant requests and the rights to be protected. Third, the rights that the applicant wants to protect are plausible. Fourth, there should be a risk of irreparable prejudice if the plausible right is not protected. Fifth, prejudice should be capable of materialising before the final determination or adjudication of the dispute.
All these conditions, in this case, are satisfied. The ICJ held that prima facie, it has jurisdiction over the dispute under Article IX of the Genocide Convention. It is vital to remember that the ICJ’s jurisdiction, in this case, is restricted to issues under the Genocide Convention. It has no jurisdiction over war crimes or crimes against humanity allegedly committed by Israel in Gaza. The court also held that South Africa has the standing to bring this claim against Israel because all countries that are parties to the Genocide Convention have a common interest in ensuring the prevention, suppression, and punishment of genocide.
The ICJ held that Palestinians appear to constitute a distinct national, ethnic, racial, or religious group and, therefore, are a protected entity within Article II of the Genocide Convention. Proving the crime of genocide requires establishing two elements: physical or actus reus and mental or mens rea. While the physical element focuses on aspects like killing or causing bodily harm to a particular group, the mental element, which is difficult to prove, is related to the intent to destroy at least a substantial part of the particular group. In the current case, given the massive death and destruction that the Israeli actions since October 7, 2023 have caused to Palestinians, the physical aspect is quite evident. On the intent part, the ICJ noted statements of several Israeli senior officials. For instance, the court took cognisance of the statement of the Israeli defence minister talking of a “complete siege” of Gaza with no electricity, food, and fuel. These dehumanising statements were sufficient to be plausibly read as implying the intent to commit genocide, as international lawyer Marko Milanovic has also argued.
Thus, the court found that some of the rights South Africa claims, and which it is seeking to protect under the Genocide Convention, are plausible. Subsequently, the ICJ held that there was a real and imminent risk of irreparable prejudice if it did not order provisional measures. This irreparable prejudice would be caused to the rights found plausible under the extant proceedings, namely the right of Palestinians in the Gaza Strip to be protected from acts of genocide and the right of South Africa to seek Israel’s compliance with the Genocide Convention.
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Provisional measures
While the ICJ, unlike the Ukraine v. Russia case, did not order the ceasing of the military operations in Gaza, it did indicate six significant provisional measures. These measures require Israel and its military to take all measures not just to prevent the commission of genocide but also public incitement to commit genocide; ensure humanitarian assistance to Palestinians in Gaza; prevent the destruction of evidence related to allegations of genocide; and submit a report to the court on all the measures adopted within a month. As an obiter, the ICJ also said that all parties involved in the Gaza Strip conflict are bound by international humanitarian law.
The ICJ’s decision is binding on Israel and constitutes part of its international legal obligations. If Israel continues its calamitous military actions, ignoring its obligations under the Genocide Convention, it will be a brazen violation of international law. Cynics might argue that none of this matters because the remedy for not complying with ICJ rulings lies with the United Nations Security Council, which has Israel’s all-weather friend, the United States. But the ICJ’s decision is momentous because it raises serious questions about how Israel has carried out its military operations, which Tel Aviv will have to answer. The decision also sends a clear message to several other world leaders craving for hot pursuit who often employ dehumanising rhetoric against their opponents. Israel must be careful of not just the courts of law but also the court of public opinion. Finally, South Africa deserves all accolades for showing the courage to bell the cat.
Prabhash Ranjan teaches at the Faculty of Legal Studies, South Asian University. Views are personal.
