The Episcopal Peace Fellowship Palestine Israel Network (EPF PIN) welcomes the January 26 ruling by the International Court of Justice (ICJ) and its acknowledgement that South Africa has made a case for genocide against Israel. At the same time, we deeply regret the omission of an explicit ceasefire order in the court’s provisional measures. Our regret is for the continued and additional harm that will be done to the people of Gaza by the court failing to order either a halt to the war or a ceasefire.
The January 26 ruling was a response to South Africa’s request for an urgent injunction, known as “provisional measures”, in its application to the ICJ against Israel. That application was filed on December 29, 2023, to begin proceedings over allegations of genocide against Israel for its war against Hamas in Gaza. In the application South Africa accused Israel of being “in violation of its obligations under the Genocide Convention” and argued that “acts and omissions by Israel … are genocidal in character, as they are committed with the requisite specific intent … to destroy Palestinians in Gaza.” The January 26 ruling is not the final ruling, which may take years to come.
In its request for provisional measures, South Africa specifically asked the court to issue a cease-and-desist order against continuing to conduct the war or to order a ceasefire. Neither of those was granted, but the court did issue the following directives to Israel:
1) take all measures to ensure that acts deemed genocidal under the Genocide Convention do not take place in Gaza;
2) ensure that its military does not commit genocidal acts;
3) prevent and punish genocide incitement and rhetoric;
4) enable and facilitate the provision of basic services and humanitarian assistance to the people of Gaza;
5) prevent destruction of and preserve evidence of genocide in its military operations, and
6) report to the court within one month, informing the court of its compliance with today’s preliminary measures order, and in response to South Africa’s genocide complaint.
The ICJ is the primary court of the United Nations and is the only international court that adjudicates general disputes between nations. That standing gives this case against Israel particular weight. (The International Criminal Court is an entirely different entity). The fact that the court made a ruling on provisional measures rather than dismiss the case entirely is de facto acknowledgement that the court has jurisdiction on the question of Israel’s conduct in Gaza, and that there is a plausible case for genocide, a view that may foreshadow the court’s final ruling and could be damning to Israel’s standing in the world community. Orders by the court are binding on the parties, but it has no power to enforce them. The ICJ ordered Russia to stop its invasion of Ukraine in 2022, which Russia has refused to do. Israeli Prime Minister Benjamin Netanyahu stated before the ruling that “no one can stop us” and is unlikely to comply with the court’s orders.
Within hours of the ruling, numerous analyses and commentaries were available. While many regretted the court’s decision not to issue a cease-and-desist order or a ceasefire, they acknowledged that the decision to adjudicate the case, the expression of plausibility in a case for genocide, and the order to Israel to comply with the orders constitute a “devastating blow to Israel’s global standing”. Amnesty International and Human Rights Watch praised the court’s rulings, while the European Union expected “full, immediate and effective implementation” of the orders. Officials of Israel reacted with disdain for the court’s authority and ruling; Minister of National Security Itamar Ben-Gvir disrespectfully tweeted “Hague-schmague”.
Allies of Israel like the United States may find themselves under pressure from this ruling. The Department of International Relations and Cooperation of South Africa said: “Third States are now on notice of the existence of a serious risk of genocide against the Palestinian people in Gaza. They must, therefore, also act independently and immediately to prevent genocide by Israel and to ensure that they are not themselves in violation of the Genocide Convention, including by aiding or assisting in the commission of genocide. This necessarily imposes an obligation on all States to cease funding and facilitating Israel’s military actions, which are plausibly genocidal.”
EPF PIN supports a ceasefire in Gaza and an end to violence against Palestinians in the West Bank. While the January 26 ruling by the ICJ did not specifically address those, the order seems to be implicit in that complying with the measures would effectively require a ceasefire to be in place. Further, we believe that the ICJ intention to hear South Africa’s case and the implications of genocide in its provisional measures signals a beginning of the end of Israel’s impunity in its actions against Palestinians. The United Nations’ highest legal body has put Israel on notice.
Institutions like the United Nations and its ICJ were created by states for states, they were not created for liberatory movements like that of Palestinians. Consequently, some analysts see broad implication in the court’s ruling, in fact a “new world order”. For the first time “a Global South country bravely crossed a red line drawn by the colonial West and demanded its favourite settler colony, Israel, be held to account…” With this ruling, the ICJ has offered Palestinians and those who support liberation movements some protection, some accountability from its member states. As one commentator put it, “That is why this fight is far from over. Today’s ICJ verdict, by itself, cannot halt the massacre. Mass movements, governments, and trade unions around the world are determinedly supporting the Palestinians—exposing Israel’s lies, accounting for the complicity of its backers, and rejecting the sacrifice of our humanity. We must go on.”