Over the past few months I have deliberately refrained from speaking publicly about the current conflict between Israel and Hamas. There are a number of reasons for that, which I don't particularly want to get into on this website.
However, one matter on which I feel I can and perhaps should contribute is the International Court of Justice's decision in the application for preliminary measures by South Africa. Unfortunately (if predictably), within minutes of the Court handing down its decision there was an enormous amount of misinformation published around the world as to what had been decided and what it means. This post is my meagre attempt to combat that misinformation to at least some extent.
The case is very complicated, and so this post has become longer than I had hoped. Even with the length it has reached, I have not explained everything as much as I perhaps should.
I encourage you to read the full post, but if you lack the ability or willingness to do that, the conclusion may be summarised as follows.
To obtain provisional measures South Africa had to show a plausible case that Israel might have breached the Genocide Convention. The Court's reasons for its decision are vague and difficult to follow, and the Court does not expressly identify what it has or has not found to be plausible. However, reading the Court's reasons together with the separate declarations of members of the majority, the measures the Court granted, and the measures sought by South Africa which were not granted, it appears that:
the only case that the Court accepted as being proven to the "plausible" level is that some Israeli officials said things that could arguably amount to public incitement to commit genocide, and Israel appears not to have taken steps to prosecute them for doing so; and
the Court rejected the proposition that Israel's military operation in Gaza as such is plausibly an act of genocide, or that some of its consequences (such as the displacement of Palestinians from their homes in Gaza) are plausibly acts of genocide.
Accordingly, the Court did not order Israel to cease its military operation or to cease actions that cause people to be displaced. For the most part the measures the Court pronounced do no more than restate obligations to which Israel was already subject under international law. The only new obligation of any real substance is to provide a report to the Court within a month.
Before I go further, I also feel that I should say that this post is intended to be a legal analysis, and I am not expressing an opinion on the conflict more broadly. Also, legal analysis requires a certain level of logic and emotional detachment, and I want to make clear that this does not mean that I am not strongly affected by everything that we have all been reading and seeing for the past few months. It is difficult to find words to describe the horror of the attacks on 7 October 2023, and the situation in Gaza at the moment is likewise horrific. Whatever the legal or moral position, no one should have to suffer what the people in Israel and Gaza have been through and are still going through. I sincerely hope that we will soon see a cessation of hostilities, together with the release of all Israeli hostages and the dismantling of the Hamas regime in Gaza.
The Judgment
The full case name is Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). The application was heard on 11 and 12 January 2024, and the Court's decision was published on 26 January 2024.
The Court also published separate declarations made by Judges Xue (China), Bhandari (India), and Nolte (Germany), a separate opinion by Judge ad hoc Barak (Israel), and a dissenting opinion by Judge Sebutinde (Uganda).
The Court
Before discussing the case itself, it is necessary to understand a little about the ICJ and how it functions.
The ICJ describes itself as the "principle judicial organ of the United Nations". There are other courts and tribunals that have been established by the UN for various purposes, but the ICJ is the only one that is a part of the UN itself and has responsibility for hearing disputes between UN member states.
The ICJ's governing instrument is the Statute of the International Court of Justice, which is appended to the Charter of the United Nations.
In accordance with Articles 3 to 15 of the ICJ Statute, the ICJ comprises 15 judges who are nominated by states party to the Statute and then elected by the UN General Assembly and Security Council for nine year terms. The judges are required to be elected by an absolute majority of each body—ie each judge needs to receive more than 50% of the votes in the General Assembly and more than 50% of the votes in the Security Council in order to be elected.
Of course, the entities entitled to vote in the General Assembly and Security Council are UN member states. As a result, the election of ICJ judges is a highly political process. I cannot claim to understand how all the horse trading works, but I do recall there being some controversy in 2012 or 2013 when Australia was campaigning for the election of the late James Crawford as a judge of the ICJ. My recollection is that it involved "strategic" foreign aid being given to certain states in exchange for votes/support.
In any event, the ever-reliable Wikipedia says this in relation to the Court's make-up:
"There are no formal rules for the allocation of seats, other than that no two judges may be nationals of the same country. In practice, the five permanent members of the United Nations Security Council have each had a permanent seat on the Court, except between 1967 and 1985 when there was no Chinese judge and since 2018, when there has been no judge from the UK. The remaining seats have been informally allocated by regional groups in the same way as the fifteen seats on the Security Council. Since 1970, the conventional allocation is three seats to Asia Pacific, three seats to Africa, two seats to Latin America and the Caribbean, two seats to Eastern Europe and five seats to Western Europe and Others. That convention was broken in 2018 when an Asian judge was elected to a seat previously occupied by judges from the Western Europe and Others group."
The point of this is to emphasise that, while the ICJ is supposed to be an independent court composed of independent judges who are not beholden to any nation, and while the judges do not have to do what their country wants them to, in practice there is a political element to the ICJ. Judges are elected, and their election depends upon votes of UN member states in two UN bodies.
This is significant because Israel has, for a long time, had few friends at the UN. The reasons for that are beyond the scope of this post, but it may be sufficient at present to observe that, of the 193 UN member states, there are 57 members of the Organisation of Islamic Cooperation (OIC), the vast majority of which do not recognise Israel as a state. The OIC tends to vote as a bloc with the African Union, which comprises 55 members, of which 26 are members of the OIC. So that is a dependable bloc of 45% of the General Assembly votes against Israel, before we even get into issues such as Israel's alliance with the USA and how that influences votes in South America and across Asia.
What follows from Israel's general unpopularity at the UN is that ICJ judges would know that if they are seen to be sympathetic to Israel it will likely be damaging to their chances of re-election. What influence does that have on the Court? It's difficult to tell. One would hope that the judges would not allow themselves to be swayed by such considerations. But that may be a naive way of thinking.
A couple of other things to note about the Court's composition. Pursuant to Article 25 of the ICJ Statute, the full Court (all 15 judges) must sit on all cases unless the Statute otherwise provides. Pursuant to Article 31, if a state party to a dispute is not represented by a judge of the Court, that state can appoint an ad hoc judge for any particular hearing. That is how the Court in the South Africa v Israel hearing ended up comprising 17 judges—the full bench of 15 regular judges plus one ad hoc judge appointed by each of South Africa and Israel.
Preliminary Measures
The application by South Africa relevantly sought "provisional measures" under Article 41(1) of the ICJ Statute, which provides: "The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party."
In the South Africa v Israel decision at [35]-[36] and [60], the Court explained the relevant test as follows:
"The power of the Court to indicate provisional measures under Article 41 of the Statute has as its object the preservation of the respective rights claimed by the parties in a case, pending its decision on the merits thereof. It follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by it to belong to either party. Therefore, the Court may exercise this power only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible ...
At this stage of the proceedings, however, the Court is not called upon to determine definitively whether the rights which South Africa wishes to see protected exist. It need only decide whether the rights claimed by South Africa, and for which it is seeking protection, are plausible. Moreover, a link must exist between the rights whose protection is sought and the provisional measures being requested. ...
The Court, pursuant to Article 41 of its Statute, has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings or when the alleged disregard of such rights may entail irreparable consequences."
As I understand it, "provisional measures" in the ICJ are a similar concept to what a common lawyer (such as I) would recognise as interim preservation orders. That is, the Court makes orders intending to preserve the status quo ante pending the final determination of the dispute.
As appears in the above quote from the Court's reasons, there is in substance a three stage test to determine whether the Court will grant provisional measures. First, the rights of the party seeking the measures must be "plausible". Second, there must be a link between those rights and the provisional measures being requested. Third, there must be a risk of irreperable prejudice to the party asserting the rights if provisional measures are not pronounced.
Judge Nolte observed at [10] of his declaration that the Court's jurisprudence "is not entirely clear as to what 'plausibility' entails", although it at least appears that the applicant party "must provide some level of evidence supporting its allegations".
Under Article 41 of the ICJ Statute, when provisional measures are indicated a notice of them shall be delivered forthwith to the Security Council. That is because, while ICJ decisions are theoretically binding on the parties, the ICJ has no enforcement powers. In theory the Security Council does have enforcement powers, although there is not in practice any real mechanism for enforcing even Security Council resolutions other than what individual states decide to do about them.
In the present context, the most concerning potential adverse consequence for Israel from a decision to grant provisional measures is that other states will decide to impose trade sanctions as a result. Otherwise the real implications of a positive or negative decision will largely be matters of public relations.
The Genocide Convention
South Africa's application concerns alleged breaches of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). Article II of the Convention defines "genocide" to mean:
any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Pursuant to Article III of the Convention it is a crime to commit genocide, to conspire or attempt to commit genocide, to directly and publicly incite genocide, or to be complicit in genocide.
To understand the Convention it is important to appreciate the context in which it was entered into.
The Convention was drafted between 1946 and 1948, in the wake of the Second World War. Its intention was to prohibit genocide of the type perpetrated by Nazi Germany in the Holocaust. The definition of genocide was deliberately drafted so that it would not cover military attacks such as the allied fire-bombing of Dresden or the atomic bombs dropped on Hiroshima and Nagasaki. Those were horrific and indiscriminate attacks, but their intention was to achieve military objectives (that is, the surrender of Germany and Japan) and not to destroy the German or Japanese people as such.
Thus what really governs whether or not a particular act comprises genocide is the intention with which it is done. For obvious reasons, any military operation will involve killing or causing serious bodily or mental harm to members of a group. Doing that will be genocide only if the underlying intention is to destroy the group as such.
The Genocide Convention relevantly imposes obligations on states to prevent genocide (Art I), and to punish genocide and associated crimes (Arts III, IV and VI).
The Application and Hearing
The application filed by South Africa on 29 December 2023 in substance alleges that Israel is committing genocide against the Palestinians in Gaza. It seeks declarations that Israel is doing so and orders compelling Israel to stop committing genocide and to prosecute people involved in genocide, as required by the Convention.
South Africa also sought various provisional measures. These will be discussed in detail below, but in substance South Africa sought that Israel should be ordered to cease its military operations in Gaza and to take various measures to prevent genocide.
Importantly, because only states can be parties to ICJ disputes, the Court has no jurisdiction over one side of the present conflict in Gaza. Hamas is not a UN member state or a state party to the ICJ Statute, so it cannot be a party to a case in the ICJ, and the ICJ cannot make any orders against Hamas. Thus the South Africa case only involves, and can only involve, one side of a two-sided war.
The application for provisional measures was heard on 11 and 12 January 2024. South Africa's representatives addressed the Court on the first day (see video here and transcript here), and Israel's on the second day (see video here and transcript here). The Court's decision was delivered on 26 January 2024, just two weeks after the hearing concluded.
I watched a lot of the hearing, and I must say that I found it to be unedifying. Both parties retained advocates who (according to their CVs) appear to be highly eminent and experienced legal counsel. But as someone who practices regularly in the court system (at least in Australia), what I was watching was barely recognisable as a court hearing.
In particular, there was no engagement at all between the bench (judges) and the bar (advocates). The parties' various representatives each stood up at a podium and read out a pre-written speech, to which the 17 judges may or may not have been listening. Over the entire two day hearing, the bench of 17 judges did not ask a single question of any party's representative.
I understand the Article 61 of the ICJ Rules provides that judges have a right to ask questions, but only after first notifying the President of the Court that they intend to do so. I do not understand why none of the judges chose to exercise that right, except perhaps that if they had been asking questions it would not have been possible to complete the hearing within the six hours of allocated hearing time. However, I am not persuaded of the time issues, because it seems to me that, as routinely occurs (at least in Australian courts), the Court could have used the hearing time far more efficiently by directing the advocates to address the real issues that the Court had to decide, rather than allowing them to blather on about things that were irrelevant or not in dispute.
That leads me to the other aspect of the hearing that I found disconcerting. Except when they were addressing technical legal points about things like jurisdiction, standing, and the power to grant particular measures, the eminent lawyers addressing the Court did not appear to me to be delivering legal arguments. They came across as though they were speaking to a public debating forum rather than a court of law. This applies equally to both legal teams.
It is difficult to know whether this happened because the advocates were pandering to the world's media, or because the politicians instructing them had rewritten their speeches in order to ensure they were "on message". Perhaps it was a little of both. Either way, the result is that, for the most part, the oral advocacy would have given the Court little assistance in understanding either party's case. As Judge Nolte observed in his declaration:
"It is regrettable how much the Parties talked past each other during the oral proceedings. South Africa hardly mentioned the attack of 7 October 2023 and the ensuing massacre; Israel barely mentioned the United Nations reports on the humanitarian situation in the Gaza Strip. South Africa hardly mentioned the efforts by Israel to evacuate the civilian population from areas of hostilities; Israel did not satisfactorily address highly problematic forms of speech by some of its officials, including members of its military."
I respectfully agree that the two parties seemed to be talking past each other rather than engaging with each other's arguments. As I have explained, it seems to me that this was a result of the parties' legal teams delivering political speeches rather than legal arguments, and the Court's failure to keep the parties focussed on the real issues on the application.
The Decision
The Court handed down a decision in which it made various findings on jurisdiction and standing (which I do not propose to go into), then found that South Africa had established the three elements required for the issue of provisional measures. That, is, the rights South Africa sought to protect were plausible, there was a link between some of the measures it sought and those rights, and there was a risk of irreperable damage to those rights if preliminary measures were not pronounced. The Court accordingly pronounced various preliminary measures, which were different from those sought by South Africa in important ways. Most of the measures were adopted by 15 votes to 2, but some were by 16 votes to 1. The judge who dissented in part was Judge ad hoc Aharon Barak, who was the Israeli appointment to the Court (and the former Chief Justice of the Israeli Supreme Court). The judge who dissented from all of the Court's orders was Judge Julia Sebutinde, who is a former judge of the High Court of Uganda.
The Court's reasons were in many respects unsatisfactory. It is difficult on the face of the reasons to understand how and why the Court arrived at the result it did. This may be because of the perceived need to find a compromise position to which that 15 judges from different nationalities and legal backgrounds would agree, and to articulate it in the space of two weeks. That was, no doubt, a challenge. However, with the greatest respect, to my mind it does not excuse such a poor articulation of the basis for such an important decision.
The Court's dispositive finding appears to have been made at [55] of its reasons, which relevantly said:
"In the Court’s view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention. "
The reference to the "circumstances above" appears to be to the matters to which the Court referred at [46]-[53]. More specifically, at [46]-[50] the Court quoted various highly emotive statements by UN officials in relation to the current humanitarian situation in Gaza (which is certainly grim), then at [51]-[52] it quoted some apparently incendiary statements made by Israeli officials, and at [53] it quoted a group of various UN officials who had expressed concern at "discernibly genocidal and dehumanising rhetoric coming from senior Israeli government officials".
Otherwise, there is no reasoning at all to explain how the Court concluded that the relevant rights asserted by South Africa were "plausible". That is, the Court did not attempt to explain, by reference to the elements of genocide, how the various quotes set out in the judgment meant South Africa had established that genocide may be taking place.
To take an example, the first UN official quoted was the United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Martin Griffiths, who made a statement on 5 January 2024 (quoted by the Court at [47] of its reasons):
"Gaza has become a place of death and despair ...
Families are sleeping in the open as temperatures plummet. Areas where civilians were told to relocate for their safety have come under bombardment. Medical facilities are under relentless attack. The few hospitals that are partially functional are overwhelmed with trauma cases, critically short of all supplies, and inundated by desperate people seeking safety.
A public health disaster is unfolding. Infectious diseases are spreading in overcrowded shelters as sewers spill over. Some 180 Palestinian women are giving birth daily amidst this chaos. People are facing the highest levels of food insecurity ever recorded. Famine is around the corner.
For children in particular, the past 12 weeks have been traumatic: No food. No water. No school. Nothing but the terrifying sounds of war, day in and day out.
Gaza has simply become uninhabitable. Its people are witnessing daily threats to their very existence — while the world watches on.”
Now that undeniably describes a horrific situation. No human being with any conscience would not have sympathy for the families who are sleeping outside in the middle of winter, or the people who are injured in the conflict and cannot receive adequate medical treatment because of the overwhelming number of trauma cases flooding the hospitals.
However, none of that establishes that genocide may plausibly be taking place. In order to establish a plausible possibility of genocide, it is necessary to ask more questions. For example, why is there "bombardment" in the "areas where civilians were told to relocate for their safety"? What targets in particular are being bombarded? What is the objective of attacking them? Likewise for the assertion that medical facilities "are under relentless attack". Which medical facilities are being attacked? What is the nature of the attacks? What is their purpose? Are the attacks directly on the medical facilities and with the intention of preventing civilians from accessing medical care (in which case there may be a plausible genocide case)? Or are the medical facilities being used by Hamas to conduct military operations (in which case they are legitimate military targets)?
Regrettably, the Court does not concern itself with such questions. It makes no findings one way or the other as to whether anything described by Mr Griffiths may plausibly have involved genocidal intent.
As I have said, the other category of quotes in the judgment is from Israeli officals (at [52] of the judgment). The first such quote is what appears to be a statement made by the Israeli Defence Minister Yoav Gallant on 10 October 2023 (three days after the horrific Hamas massacre in Israel). The Court sets out the following excerpt:
“I have released all restraints . . . You saw what we are fighting against. We are fighting human animals. This is the ISIS of Gaza. This is what we are fighting against . . . Gaza won’t return to what it was before. There will be no Hamas. We will eliminate everything. If it doesn’t take one day, it will take a week, it will take weeks or even months, we will reach all places.”
However, it appears that this was not in fact a single quote. It was a melange of different quotes from the same speech. Part of it was taken from a Times of Israel report, which quoted Gallant as saying the following:
“I have released all the restraints, we have [regained] control of the area, and we are moving to a full offense ...
You will have the ability to change the reality here. You have seen the prices [being paid], and you will get to see the change. Hamas wanted a change in Gaza, it will change 180 degrees from what it thought ...
They will regret this moment, Gaza will never return to what it was ...
Whoever comes to decapitate, murder women, Holocaust survivors — we will eliminate him with all our might, and without compromise.”
The ICJ's quote is also drawn from a video that seems no longer to be online, but which has been transcribed here as corrected here:
"You saw what we are fighting against. We are fighting against human animals. This is the ISIS of Gaza. This is what we are fighting against. Gaza won’t return to what it was before. There will be no Hamas. We will eliminate everything. It doesn’t take one day, it will take a week, it will take weeks, or even months, we will reach all places. There is no way that our brothers, our children, our parents will be killed and we won’t react because we are a state. So we understand that Hamas wanted to change the situation. It’ll change back 180 degrees and they’ll regret this moment. They will regret it."
It is regrettable that the ICJ appears to have deliberately omitted parts of the what Mr Gallant was reported to have said which detract somewhat from the incendiary nature of the speech. In any event, the Court did not explain what role this statement played in its reasoning, nor how the statement contributed to the Court's conclusion that the things referred to in, for example, Mr Griffiths' statement could plausibly amount to genocide (if indeed that is what the Court had found).
To some extent the Court's reasoning may be gleaned from the separate declarations made by three judges who formed a part of the majority.
Judge Xue's declaration does not assist on this point, because it was focussed on the question of whether South Africa had standing to bring the application, and it did not address the "plausability" question.
Judge Bhandari made this finding at [9] of his declaration:
"Here, the widespread nature of the military campaign in Gaza, as well as the loss of life, injury, destruction and humanitarian needs following from it — much of which is a matter of public record and has been ongoing since October 2023 — are by themselves capable of supporting a plausibility finding with respect to rights under Article II."
With respect, that reasoning appears to me to be problematic. It seems to suggest that any military operation creating a humanitarian disaster could plausibly amount to genocide, and the Court does not really need to consider the question of intent at the provisional measures stage.
Judge Nolte took a different approach. He referred to the earlier case in which the ICJ had indicated provisional measures against Myanmar, on the application of Gambia, because of a plausible risk of genocide against Rohingya Muslims in Myanmar. His Excellency made the following findings and observations, which are worthwhile to set out in full:
'I am not persuaded that South Africa has plausibly shown that the military operation undertaken by Israel, as such, is being pursued with genocidal intent. The evidence provided by South Africa regarding the Israeli military operation differs fundamentally from that contained in the reports by the United Nations fact-finding mission on Myanmar’s so-called “clearance operation” in 2016 and 2017 which led the Court to adopt its Order of 23 January 2020 in The Gambia v. Myanmar. These reports provided detailed indications of the involvement of military and security forces in atrocities committed against the Rohingya group. Having considered various other possible inferences from the available information, in particular security considerations, the report found that “[t]he actions of those who orchestrated the attacks on the Rohingya read as a veritable check-list [of genocidal intent]”, concluding “on reasonable grounds, that the factors allowing the inference of genocidal intent are present”. Based on this information, the Court considered that, under the circumstances, the rights of the Rohingya group deriving from Article II (a) to (d) of the Genocide Convention, as alleged by The Gambia, were plausible.
The information provided by South Africa regarding Israel’s military operation is not comparable to the evidence before the Court in The Gambia v. Myanmar in 2020. While the Applicant [South Africa] cannot now be expected to provide the Court with detailed reports of an international fact-finding mission, it is not sufficient for South Africa to point to the terrible death and destruction that Israel’s military operation has brought about and is continuing to bring about. The Applicant must be expected to engage not only with the stated purpose of the operation, namely to “destroy Hamas” and to liberate the hostages, but also with other manifest circumstances, such as the calls to the civilian population to evacuate, an official policy and orders to soldiers not to target civilians, the way in which the opposing forces are confronting each other on the ground, as well as the enabling of the delivery of a certain amount of humanitarian aid, all of which may give rise to other plausible inferences from an alleged “pattern of conduct” than genocidal intent. Rather, these measures by Israel, while not conclusive, make it at least plausible that its military operation is not being conducted with genocidal intent. South Africa has not called these underlying circumstances into question and has, in my view, not sufficiently engaged with their implications for the plausibility of the rights of Palestinians in the Gaza Strip deriving from the Genocide Convention.
Even though I do not find it plausible that the military operation is being conducted with genocidal intent, I voted in favour of the measures indicated by the Court. To indicate those measures, it is not necessary for the Court to find that the military operation as such implicates plausible rights of Palestinians in the Gaza Strip. My decision to vote in favour of the measures indicated rests on the plausible claim by South Africa that certain statements by Israeli State officials, including members of its military, give rise to a real and imminent risk of irreparable prejudice to the rights of Palestinians under the Genocide Convention (see paragraphs 50-52 of the Order). At the present stage of the proceedings, it is not necessary to determine whether such statements should be characterized as acts of “[d]irect and public incitement to commit genocide” within the meaning of Article III (c) of the Genocide Convention. It is true that some of these statements can be read as referring exclusively to Hamas and other armed groups in the Gaza Strip. However, these statements are at least highly ambiguous in their use of dehumanizing and indiscriminate language against Palestinians in the Gaza Strip as a group. Since they were made by high-ranking officials, who thereby also addressed soldiers involved in hostilities in the Gaza Strip, I cannot plausibly exclude that such statements contribute to a potential failure by Israel to prevent and punish acts of public and direct incitement to genocide. Indeed, South Africa has provided evidence, not contradicted by Israel, that inflammatory parts of relevant statements have been echoed in a threatening way by members of the Israeli armed forces. This confirms that such statements may contribute to a “serious risk” that acts of genocide other than direct and public incitement may be committed, giving rise to Israel’s obligation to prevent genocide.'
In other words, what Judge Nolte found was that South Africa had established that there was a plausible case that statements by Israeli officials (presumably including the Gallant statement discussed above) may have amounted to direct and public incitement to genocide. He otherwise did not find that any plausible acts of genocide had been established.
It follows that there is a tension between the reasons of the two members of the Court's majority who made separate declarations in relation to the "plausibility" findings. Judge Bhandari's findings appear to be significantly broader than those of Judge Nolte. Which of those perspectives better reflect's the Court's ultimate decision?
The answer to that question may lie in the actual measures pronounced by the Court, when contrasted with those that were sought by South Africa.
The measures the Court pronounced (edited for length and legalese) were as follows:
(1) ... Israel shall, in accordance with its obligations under the Convention ... 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, in particular:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
(d) imposing measures intended to prevent births within the group;
(2) ... Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above.
(3) ...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.
(4) ... 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.
(5) ... 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.
(6) ... Israel shall submit a report to the Court on all measures taken to give effect to this Order within one month as from the date of this Order.
The measures sought by South Africa (edited for length and legalese) were as follows:
(1) ... Israel shall immediately suspend its military operations in and against Gaza.
(2) ... Israel shall ensure that [its] military ... take[s] no steps in furtherance of the military operations referred to point (1) above.
(3) ... South Africa and ... Israel shall each, in accordance with their obligations under the Convention ... in relation to the Palestinian people, take all reasonable measures within their power to prevent genocide.
(4) ... Israel shall, in accordance with its obligations under the Convention ..., in relation to the Palestinian people as a group ... desist from the commission of any and all acts within the scope of Article II of the Convention, in particular:
(a) killing members of the group;
(b) causing serious bodily or mental harm to the members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
(d) imposing measures intended to prevent births within the group.
(5) ... Israel shall, pursuant to point (4)(c) above, in relation to Palestinians, desist from, and take all measures within its power including the rescinding of relevant orders, of restrictions and/or of prohibitions to prevent:
(a) the expulsion and forced displacement from their homes;
(b) the deprivation of:
(i) access to adequate food and water;
(ii) access to humanitarian assistance, including access to adequate fuel, shelter, clothes, hygiene and sanitation;
(iii) medical supplies and assistance; and
(c) the destruction of Palestinian life in Gaza.
(6) ... Israel shall, in relation to Palestinians, ensure that its military, ... do[es] not commit any acts described in (4) and (5) above, ... and insofar as they do engage therein, that steps are taken towards their punishment ...
(7) ... 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 of the Convention ...; to that end, the State of Israel shall not act to deny or otherwise restrict access by fact-finding missions, international mandates and other bodies to Gaza to assist in ensuring the preservation and retention of said evidence.
(8) ... Israel shall submit a report to the Court on all measures taken to give effect to this Order within one week, as from the date of this Order, and thereafter at such regular intervals as the Court shall order, until a final decision on the case is rendered by the Court.
(9) ... Israel shall refrain from any action and shall ensure that no action is taken which might aggravate or extend the dispute before the Court or make it more difficult to resolve.
It can be seen that the Court rejected South Africa's proposed measures (1) and (2) entirely. It must follow that, as Judge Nolte said in his declaration, the Court was not satisfied that there was a plausible case that Israel's military operation as such is genocidal.
The first four measures in fact adopted by the Court are modified versions of South Africa's proposed measures (4), (5) and (6).
South Africa's measure (4) was largely unchanged, but that does no more than to restate Israel's obligations under the Genocide Convention. That is, it does not require Israel to do anything that it was not already obliged to do.
The changes to South Africa's measures (5) and (6) are very substantial. South Africa sought orders that Israel should not be permitted to forcibly expel people from their homes or deprive them of access to various supplies. The Court's measures fall well short of that. The Court did not expressly order Israel not to forcibly displace people or not to restrict access to supplies. All it did was order Israel to take measures to enable the provision of humanitarian supplies and assistance. It must follow that the Court was not persuaded that the displacement of Palestinians in Gaza is plausibly an act of genocide.
There is more of a question in relation to the Court's measure (4) (regarding humanitarian supplies and services). The measure in substance restates obligations Israel has under international humanitarian law, but not the Genocide Convention. The Court in its reasons does not expressly explain the basis for measure (4). In his declaration, Judge Nolte said this about the measure:
"Statements by Israel and by United Nations agencies regarding the access of Palestinians in the Gaza Strip to adequate food, water and other forms of humanitarian assistance differ significantly. United Nations agencies claim that there is a desperate lack of food and other goods necessary for the survival of the population. Their statements raise the question whether the Israeli authorities are unjustifiably restricting the delivery of food and other necessary goods to the entire civilian population in the Gaza Strip, or at least to substantial parts of the population. Under the circumstances and at the provisional measures stage, I think that weight must be given to the respective assessments of United Nations agencies regarding the circumstances of the existentially threatening situation of the group of Palestinians in the Gaza Strip. I have therefore also voted in favour of measure (4)."
Unlike the rest of Judge Nolte's decision, this particular passage does not appear to be directed to Israel's obligations under the Genocide Convention. It does not refer to the intention of any actions. With respect, his Excellency seems more focussed on alleviating the humanitarian situation than with the question the Court was supposed to be addressing. That is not to say that alleviating the humanitarian situation is not important, but it was not the issue the Court was supposed to be considering.
Judge ad hoc Barak voted in favour of measure (4), despite expressly having found no plausibility of genocide. He explained his reasoning at [44]:
"Although I am convinced that there is no plausibility of genocide, I voted in favour of the third and fourth provisional measures. ... With regard to the fourth measure, I voted in favour, guided by my deep humanitarian convictions and the hope that this will alleviate the consequences of the armed conflict for the most vulnerable. Through this measure, the Court reminds Israel of essential international obligations, which are already present in the DNA of the Israeli military. This measure will ensure that Israel continues to enable the delivery of humanitarian aid to Gaza, which I see as an obligation arising under IHL."
Judge Nolte is not quite as explicit as Judge ad hoc Barak, but the reasoning appears to be along similar lines. That is, Judge Nolte too is probably aware that the Court doesn't really have power to make the order, but he voted in favour of it anyway because it might help alleviate the humanitarian consequences of the conflict. That is a laudable goal, but it is a problematic step for a Court to take. If there were any right of appeal from an ICJ decision (which there isn't), it would be a clearly arguable appellable error.
South Africa's proposed measure (6) contemplated that any Israeli who was involved in the conflict might be prosecuted. By contrast, the Court's measure (3) refers only to prosecuting anyone involved in direct and public incitement to genocide. Again, the measure in fact ordered is significantly narrower than what was sought, and appears to reflect the view articulated by Judge Nolte that the only plausible case that South Africa had presented is that some Israeli officials said things that could arguably amount to direct and public incitement to commit genocide. It should also be noted that Israel was already obliged under the Genocide Convention to prosecute public and direct incitement to genocide, so this measure too does no more than restate an obligation to which Israel was already subject. (That said, on a personal note, I tend to agree with the Court that the rhetoric of some Israeli officials has been bordering on genocidal, and that Israeli authorities have failed to take steps to address this. I am looking in particular at Itamar Ben Gvir and Bezalel Smotrich.)
The basis for the Court's measure (5), which is a modified version of South Africa's proposed measure (7), is difficult to understand. Judge ad hoc Barak made this observation in relation to that measure: "I did not vote against this measure because evidence is not important, but because South Africa has not shown that Israel has destroyed or concealed evidence. This claim is baseless and therefore should not have been entertained by the Court."
Indeed the Court did not refer to any evidence that there was a risk of destruction of evidence, nor did it give any other explanation for pronouncing this measure. This again is a clearly arguable appellable error. But as I have said, unfortunately there is no right of appeal from an ICJ decision.
The final measure, number (6), requires Israel to provide a report to the Court within a month. It is probably not necessary to discuss that measure in any detail.
Conclusion
As I said at the outset of this post, I have not been able to cover everything I would liked to have covered. However, I know that reading this post would already have been a hard slog, so thank you for sticking with it until the end.
Before I conclude, I want to mention that Judge ad hoc Barak's separate reasons are very lucid and heartfelt. This post is already too long, so I don't propose to get into them in further detail, but I encourage you to read them. He was himself a survivor of genocide (having escaped the Nazis as a child), and he brings an important perspective that would otherwise be sorely lacking from the conversation.
Also worth reading is the dissenting opinion by Judge Sebutinde. Her view was that the conflict in Gaza is part of a longstanding political dispute between the Israelis and the Palestinians, and it is not the Court's role to resolve that dispute. It has to be resolved by negotiations between the parties. In my respectful opinion, that view has much to commend it.
As a final note, I hope that this post has given you some indication of how misleading and oversimplified the information that is published about the Israeli/Palestinian conflict on social media or news outlets can be. The conflict is extremely complex and multifaceted, and far too many people are spreading emotive and simplistic narratives without properly informing themselves. That criticism applies to both "sides" of the conflict. As Judge Nolte lamented, even in the ICJ the representatives two "sides" were talking past each other without making any effort to engage with each other's arguments.
Accordingly, I encourage you to read widely and deeply if you want to make public comments about the conflict, and to follow closely what all "sides" have to say about it. Obviously you do not have to do that—after all, who has the time? But if you are going to be making public comments about it then you should, otherwise you will probably be part of the problem and not part of the solution. In the words of John Stuart Mill (apologies for the gendered language): "He who knows only his own side of the case knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side, if he does not so much as know what they are, he has no ground for preferring either opinion."
Please reflect on that before liking and sharing the next emotive Gaza meme that turns up in your social media feed.
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