World Court’s Third Ruling a Warning to Israel

On March 28^th The International Court of Justice (ICJ) ruled on South Africa’s third and most recent request, asking that it impose additional measures on Israel to prevent what South Africa claims is genocide in Gaza. The court did in fact issue two new measures, but they are quite similar to the ones already in the original January ruling. In January the court ordered Israel to ‘enable’ the delivery of humanitarian assistance, now it ordered Israel to ‘ensure without delay in full co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance.’ It’s a more strongly worded demand for essentially the same thing.

No Order to End Gaza Military Campaign

What did not change, however, is that the court still refused to directly order Israel to end its military operation in Gaza, which South Africa each time requested. Specifically, South Africa asked the court to order that ‘All participants in the conflict must ensure that all fighting and hostilities come to an immediate halt.’ The reason for the court’s refusal is that its jurisdiction extends only to states, and therefore does not include Hamas. The court’s majority decided that since the court has authority only over one party to the conflict (Israel), but not the other (Hamas), it is not reasonable to issue an order that requires just one side to stop fighting.

The View of Seven Judges

A review of the many declarations submitted by individual judges, however, reveals strong division within the court. A full seven of the sixteen judges made clear they did want to order Israel to end its military operation, even without a parallel order binding on Hamas.

Their rationale is that the situation in Gaza is so grave it threatens the ability of the Palestinian people there to survive, raising the specter of genocide. Israel claims its military operations are necessary to defend itself from Hamas and rescue the hostages, and that it is doing all it can within that context to allow for the provision of humanitarian aid. In the opinion of these seven judges, even if Israel’s claim is true, that’s still not enough to justify Israel’s military actions. Genocide is such an extreme affront to humanity it cannot be allowed in any circumstances, even if it is an unavoidable byproduct of an otherwise legal and justified war of self-defense.

We can understand this through analogy to the laws of armed combat. These impose restrictions on armies, which necessarily bring more danger upon soldiers. For example, attacking a military target is prohibited if doing so causes disproportionate civilian harm. Of course, that military target which is spared might later turn around and attack the very same troops which refrained from firing on it. That’s the risk soldiers are expected to take in order to spare civilians.

So too here. These seven ICJ judges realize that imposing a one sided cease fire against Israel may well hamper Israel’s ability to defend itself and free the hostages. But if Israel’s otherwise legitimate efforts to defend itself against Hamas create a situation that amounts to genocide, Israel will have to compromise its defense. The risk of additional harm to Israel’s own population and the hostages is something international humanitarian law and the Genocide Convention require Israel to bear.

Don’t Believe Israel is Following January Order

It’s also apparent that a majority of the judges don’t believe that Israel is doing enough to comply with the original January order to enable the distribution of humanitarian aid. Judge Nolte of Germany was quite explicit about this, writing in his declaration that he believes ‘the current terrible situation in Gaza would probably not exist’ if Israel had followed the original measures. He wrote he was worried about the propriety of ordering additional measures because the purpose of additional measures should be to make changes, not to just reiterate demands that aren’t being met.

The Opinion of Judge Barak

As there is no regular Israeli judge on the ICJ, it was allowed to appoint one to sit on this case. It chose Aharon Barak, former Chief Justice of Israel’s Supreme Court. He was the only judge to vote against the new measures.

In his dissent, Barak points out that much of the difficulty in distributing aid can be attributed to Hamas, not Israel. He criticizes the court for accepting at face value political statements by UN officials about the hardships being faced in Gaza, and on unquestioningly accepting casualty statistics put out by Hamas. He also says that the issue here is not genocide, but rather allegations that Israel is violating humanitarian law, which is beyond the jurisdiction of the court. He concluded by writing, “I sincerely hope that this war comes to an end as quickly as possible, and that the hostages will return to Israel immediately. The key lies in the hands of Hamas. Hamas started the war and Hamas can finish it.” I believe his perspective will resonate with many Israelis.

Warning About the Future

But Justice Barak is only one out of sixteen. This decision paints a picture of Israel rapidly losing credibility with the court. Israel is now obligated to report back in thirty days on its compliance with the new requirement that it ensure the delivery of aid. It seems likely that if that report is deemed unsatisfactory, or if the Gaza situation deteriorates further, South Africa will petition yet again. At that point, a ruling that demands Israel cease military operations unilaterally, putting Israel in direct conflict with the ICJ, seems not only possible but likely. For the sake of both Gaza and Israel, let’s hope it doesn’t come to that.