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Ido Rosenzweig
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ICJ ruling was the least undesirable decision

The Court's interim ruling doesn't hinder the IDF's ability to combat Hamas – lsrael was right to put up a serious defense
British jurist Malcolm Shaw, right, legal adviser to Israel's Foreign Ministry Tal Becker, left, look on during the opening of the hearings at the International Court of Justice in The Hague, Netherlands, Jan. 11, 2024. (AP Photo/Patrick Post)
British jurist Malcolm Shaw, right, legal adviser to Israel's Foreign Ministry Tal Becker, left, look on during the opening of the hearings at the International Court of Justice in The Hague, Netherlands, Jan. 11, 2024. (AP Photo/Patrick Post)

Friday, as the world observed International Holocaust Remembrance Day (events were scheduled earlier due to the Sabbath), the International Court of Justice (ICJ) revealed the decision regarding provisional measures in the proceedings initiated by South Africa against Israel for the alleged genocide in Gaza. It’s important to note that this decision applies only to provisional measures. The ICJ decided only regarding the prima facie grounds of jurisdiction based on information presented by South Africa and Israel.

Ultimately, this decision can be seen as the best outcome for Israel given the circumstances, or as the least undesirable decision the ICJ could have made. The decision is positive because the ICJ rejected the most extreme and detrimental measures requested by South Africa – measures such as a cessation of hostilities and the immediate return of the Gaza population to the northern strip. These measures would have significantly hindered Israel and the IDF’s ability to combat Hamas. Considering the low threshold required for granting provisional measures in such proceedings, this represents a remarkable success for the Israeli defense team led by Professor Malcolm Shaw, Dr. Tal Becker – the legal advisor to the Ministry of Foreign Affairs, and Dr. Gilad Noam – the Deputy Attorney General.

If anyone had doubts about the significance of Israeli participation in the proceedings, those doubts should now be dispelled. While the ICJ did accept the majority of the measures requested by South Africa, most of them are measures that can easily be implemented by Israel. Moreover, Israel will likely argue that these measures are generally implemented on the ground, as the IDF takes measures to prevent and neutralize any threat of genocide, Israel provides humanitarian assistance, and military activities are conducted predominantly in a lawful manner, in accordance with international humanitarian law, without any intent to commit genocide. Without the presence of the Israeli team, the ICJ would have been left only with the distorted one-sided picture presented by South African representatives, and it is reasonable to assume that more severe measures would have been accepted.

The decision is the least bad one because anyone who heard the ICJ President reading the decision could clearly perceive that the ICJ adopted South Africa’s narrative. The focus was primarily on the harm caused by Israel to the Gaza population and the problematic expressions of different Israeli politicians. Beyond a few words about the events of October 7th, there was no real acknowledgment of Hamas’s role in the harm caused in Gaza and the ongoing threat the terrorist organization poses to Israel.

As I have noted before, one cannot underestimate the damage caused to the country by the outrageous statements of politicians, commentators, public figures, and soldiers. The ICJ made it clear that these statements played a significant role in the decision to grant provisional measures because these statements help establish the possibility of genocide based on the notion of “intent.” Even Judge Barak, who dissented regarding the majority of the measures, joined the majority opinion regarding the measure requiring Israel to prevent and address expressions that could incite genocide. I hope Israeli politicians will grasp the significant implications of these statements and internalize them without the need for intervention by the attorney general or hiding behind their parliamentary immunity.

One of the interesting and challenging measures in practical terms is the measure requiring Israel to provide humanitarian aid to Gaza. Israel already provides humanitarian aid, but according to all indicators published by UN experts and humanitarian organizations, the amount of aid is insufficient to cope with the humanitarian disaster unfolding in the Gaza Strip. Since the ICJ’s decision yesterday relied heavily on statements and reports from official UN sources, it is important that Israel acknowledge this reality and avoid claiming that the humanitarian aid currently provided is sufficient.

Israel needs to make efforts to increase humanitarian aid effectively to reduce the harm to the uninvolved civilian population and deal with protests against such humanitarian aid entering Gaza. At the same time, it is unclear who will oversee the aid and ensure that the quantities are sufficient and reach their destination without being seized by Hamas for its fighters’ use. I believe and expect that Israel will collaborate effectively with these UN entities to ensure that humanitarian aid not only enters but is also distributed effectively, but it should also be clarified that the primary responsibility for effective distribution lies first and foremost with the de facto authority in Gaza – Hamas.

In conclusion, it is important to mention that beyond the deferral of particularly problematic measures (such as the cessation of hostilities), one of the significant achievements of the decision is the unequivocal statement by the ICJ regarding the imperative to release the hostages immediately and unconditionally. The fact that the judges chose to conclude their decision with that statement creates symmetry with the opening events of October 7th and underscores the urgency of prioritizing the release of all hostages.

About the Author
Dr. Ido Rosenzweig is the co-founder and chairman of ALMA - Association for the Promotion of International Humanitarian Law, and the Director of Research (Terrorism, Belligerency, and cyber) at the Minerva Center for the Rule of Law under Extreme Conditions in the University of Haifa [Photo by Flash90]