If the ICJ Orders Israel to Cease Hostilities…

The International Court of Justice (ICJ) in The Hague announced today that it will convene tomorrow at 16:00 (Israel time, 15:00 The Hague time) to publish the decision regarding South Africa’s request for provisional measures in the case against Israel on the Genocide Convention. As recalled, this is the fourth request the ICJ has received from South Africa asking for the modification and indication of provisional measures. Since the original decision to impose measures on Israel was (partially) accepted by the Court, we have seen the ICJ outright reject South Africa’s second request and partially accept the third.

So far, the most significant and operational part of the measures decisions has focused on the issue of humanitarian aid and Israel’s obligation to enable its entry into Gaza. Importantly, South Africa’s repeated requests for provisional measures requiring Israel to cease all hostilities in the Gaza Strip have been consistently denied. This time, there is concern that following the IDF’s activity in Rafah and its perception abroad, the ICJ will grant South Africa’s request and order a cessation of Israeli hostilities in Rafah and perhaps beyond.

At this stage, it is important to note that it is still unclear whether the ICJ will indeed order a one-sided cessation of hostilities in any form, and the concerns might be unfounded. However, if such provisional measures are issued, the Israeli government will face a particularly significant crossroads – it will have to decide whether to comply with the ICJ’s binding order or violate it. Of course, the exact wording of the measures will impact this decision.

The acceptance of the request itself would set a precedent by the ICJ., This would be very different from the situation in Ukraine, where the Court indeed issued a provisional measure ordering Russia to stop fighting in Ukraine (a measure Russia refused to implement).  Russia “justified” its attack on Ukraine with the false claim that Ukraine was committing genocide. In contrast, there is no real dispute that Israel’s use of force against Hamas is based on legitimate and lawful self-defense against an enemy that attacked Israel on October 7 and continues to attack, threaten, and to hold hostages.

If provisional measures ordering Israel to stop fighting in Rafah (or beyond) are issued, an Israeli decision not to comply with these measures will lead to an unpredictable legal and political storm. The ICJ does not have its own enforcement mechanisms, so the first and primary option will be an urgent discussion in the UN Security Council, where Israel will likely need a U.S. veto to neutralize an operational resolution that obligates Israel to implement the measures and cease fighting. The wording of the Security Council decision may also include references to sanctions against Israel if it violates the ICJ’s provisional measures.

Assuming the U.S. exercises its veto powers, the international community, including regional organizations, such as the European Union, will have to find a way to react. As we have recently seen, even before the ICJ’s upcoming decision, several states traditionally supportive of Israel have announced restrictions on their arms trade, either due to political constraints or to comply with the decisions of the domestic courts. For example, the Netherlands had to stop selling spare parts for F-35 aircraft to Israel following a decision of a national court. In Canada, the government took a decision to stop future arms sales. If Israel indeed violates the ICJ’s decision, it might have as an effect for further States to follow suit, resulting in increased security dependence of Israel on the U.S.

In a more pessimistic scenario, restrictions imposed on Israel might not be limited to the security sector but could expand to economic, academic, cultural, and sports fields. Such consequences will lead to Israel being severely isolated, and it will (again) be mentioned in the same breath as Russia as a pariah state. This could plunge Israel into severe significant economic and social turmoil.

We will know tomorrow what the ICJ’s decision is. No matter what the actual decision is, Israel also needs to deal with the developing situation at the International Criminal Court. These are indeed two independent and separate legal systems that do not operate in coordination or collaboration, but for Israel, the legal, political, diplomatic, and military challenges resulting from these developments are immense. It is crucial that they are addressed in an informed and adequate manner, whether or not such reaction reflects the Israeli public’s sense of justice.