Weekly Israel-Hamas war megathread - week of January 22

ICJ Indicates Provisional Measures in South Africa v. Israel

This is a summary by someone who apparently followed the legal proceedings closely.

Briefly, the Court found that the legal conditions for the indication for provisional measures were met, in particular that it was plausible that genocide was being committed in Gaza. However, the Court did not indicate the most important measures asked for by South Africa, i.e. it did not order Israel to stop its military operations altogether, unlike in the case brought by Ukraine against Russia. It did indicate provisional measures, which are in most respects similar to its Gambia v. Myanmar order on provisional measures, with some important additions. This post will provide a bottom line analysis of the order, but we’ll have more detailed coverage in the days to come. In sum, reputationally this is a significant blow to Israel, especially in light of the near-unanimity of the Court, and the order will also have bearing on states cooperating with Israel. But Israel avoided an order that would have mandated a ceasefire, instead being ordered to undertake measures that it is saying that it is largely doing anyway.

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The two most interesting parts of the order are the Court’s findings as to plausibility, and its decision on what measures to indicate (or not).

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On plausibility, the conduct comprising the actus reus of genocide was, as a general matter, easy to establish because of the widespread destruction in Gaza. The key question, again, was one of intent. And here, crucially, the Court relied on statements of Israeli officials that could plausibly be read as implying such intent [...]. However, there is no detailed analysis of these statements in the order [...] [T]he Court did not include in its analysis as plausibly evidencing genocidal intent – here perhaps the most infamous is Prime Minister Netanyahu’s Amalek speech, which the Court apparently thought was more ambiguous than many have thought. Again it is important to underscore that Israel has its own officials to blame for making the kind of statements that they made.

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[T]he Court indicated the same measures – directly tied to the language of the Genocide Convention – that it had previously indicated in Gambia v. Myanmar. But there are some important additions. First, there is a very explicit request to Israel to take all measures to prevent and punish direct and public incitement to genocide, which is more explicit than the one in GvM. Second, there is a very explicit request to Israel to implement immediate and effective measures on humanitarian assistance. Third, like in GvM, the Court asked for a report from Israel on compliance, but here the time-limit for that report is much shorter, just one month.

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Most of the provisional measures are indicated by 15 votes to 2 (Judge Sebutinde and Judge ad hoc Barak dissenting) [...] The two new additions on direct and public incitement and humanitarian assistance were delivered by 16 votes to 1 (Judge Sebutinde dissenting) – that is, even Judge ad hoc Barak (appointed by Israel) voted for them. This underscores the degree of consensus within the Court. Judge Barak’s endorsement of the two measures – completely justified in light of the facts on the ground – will not endear him to those segments of the Israeli public that already revile him.

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It is also important to note that the US Judge and the Court’s outgoing President, Judge Donaghue, was in the majority on all points of the order. This should, I think, also be an important signal to the Israeli public in particular that the Court’s order is not the result of some anti-Israeli UN conspiracy (not that I am holding my breath on this account).