ICJ’s Gaza genocide case — a big win, but with what effect?

By Ottilia Anna Maunganidze and Xhanti Mhlambiso

13 Feb 2024

Ensuring Israel’s compliance – meaning actual implementation – with the provisional measures will require action by other international bodies, states and civil society.

On 26 January, the International Court of Justice (ICJ) ordered provisional measures in South Africa’s (SA) case against Israel on allegations of genocide in Gaza. Securing the order, which was hailed as a major achievement, is one thing – seeing to its implementation is another.

With this decision, the ICJ instructed Israel to prevent genocide, ensure Israeli forces don’t commit genocide, and to prevent and punish incitement to commit genocide. Israel must also urgently provide humanitarian aid and preserve evidence, and submit a report on the extent of its compliance before 26 February.

On SA’s interpretation, the ICJ’s order requires Israel to effectively call for a ceasefire. But Prime Minister Benjamin Netanyahu’s reaction to the ruling suggests an unwillingness to change the tenor of the operation, and the recent deadly airstrikes on Rafah in southern Gaza confirm this.

When the United Nations Security Council (UNSC) met on 31 January to discuss the Gaza situation following the ICJ’s order, the continued bombardment and humanitarian toll were raised as major concerns. Algeria (which had requested the urgent meeting) has reportedly drafted a UNSC resolution demanding a ceasefire in Gaza.

A first since IJC

This isn’t the first time countries have called for a ceasefire at the UNSC or UN General Assembly. But it’s the first since the ICJ declared that a genocide was plausibly underway in Gaza. Previous resolutions calling for a ceasefire have been blocked by the US using its veto power, and this one could face the same fate.

Without other legal mechanisms to enforce the ICJ’s order, it will be up to states to apply diplomatic pressure and – along with civil society organisations – seek recourse in their national courts to counter Israeli’s impunity.

The report required by Israel should detail its implementation of the provisional measures.

Deadline: end of February

If Israel wants to be seen to respect international law and the ICJ’s authority, it will comply before the end of February. But the report may not substantially show that Israel is abiding by the Genocide Convention. Since 26 January, the bombardment of civilians and infrastructure in violation of the court’s order, has continued in Gaza.

It will be for SA and the ICJ to assess the shortcomings of Israel’s compliance in its upcoming report. SA can then propose remedies, which may include a request for additional measures. At the same time, the court may opt to elect an ad hoc committee comprising three judges to assess Israel’s report and make recommendations. But these too could go unimplemented.

Read more in Daily Maverick: US court urges Biden administration to stop supporting Israel’s ‘military siege’ in Gaza

This isn’t the first genocide case before the ICJ. Two other cases dealing with this crime are The Gambia vs Myanmar (2019), and Ukraine vs Russia (2022). In all three cases, the ICJ has ordered provisional measures, opting to protect the lives of vulnerable groups. But the jury is still out on the effectiveness of such orders.

To date, Myanmar’s compliance reports haven’t been made public, for reasons that aren’t clear. As the court process drags on, there is little transparency on which, if any, of the provisional measures have been complied with, and in what way. Russia hasn’t abided by its provisional measures, and was never ordered to submit a compliance report.

Uncertain road ahead

So, while SA celebrates its first “win” in its case against Israel, the road ahead is uncertain. Regardless, the preliminary ICJ ruling sets the scene for the coming months and years, as the grave contestations around this case unfold in the courtroom, in Gaza and in the fraught geopolitical arena.

Read more in Daily Maverick: Pandor says Israel is ignoring the ICJ order to stop killings in Gaza

Some analysts have already pointed out the potential diplomatic fallout for SA. At the same time, the case has received growing support from countries in the Americas, Asia, Africa and Europe. Some have initiated similar or complementary processes that could pressure Israel (and its backers) to change tack.

Indonesia is spearheading a separate case against Israel at the ICJ, alleging that Israel’s longstanding occupation of the Occupied Palestinian Territory violates, among others, the right to self-determination under international law. Indonesia’s case flows from the UN General Assembly’s request for an ICJ Advisory Opinion on the legal consequences of Israel’s policies and practices in the occupied territory.

Nicaragua has applied to intervene in the South Africa vs Israel case, and has also issued a memorandum urging Canada, Germany, the Netherlands and UK to stop backing Israel’s occupation of Palestine and supplying it with arms.

Mounting pressure on Israel

Pressure on Israel is also mounting from the US. Washington has expressed growing concerns over the impact of Israel’s military operations in Rafah on civilian lives. And on 31 January, a US federal court “implored” President Joe Biden and his administration “to examine the results of their unflagging support of the military siege against the Palestinians in Gaza”, citing the ICJ’s ruling that “it is plausible that Israel’s conduct amounts to genocide”.

The International Criminal Court (ICC) also has an open investigation into international crimes committed in Palestine. This is complemented by the work of the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory to collect and preserve evidence of war crimes committed since 7 October 2023. The commission has undertaken to share its information with the ICJ.

Non-governmental organisations, the media and others with a vested interest in the South Africa vs Israel case can also institute judicial proceedings in national and regional courts. SA is negotiating with other countries that have expressed an intention to intervene in its case against Israel. They might make their own submissions to the ICJ, or join SA’s case.

Given Israel’s disregard of the ICJ’s provisional measures, it is likely that other complementary processes will dissuade Israel from acting with impunity in its military assault on Gaza. These range from discussions at the UNSC to ICJ deliberations on the occupation, the threat of ICC prosecutions, diplomatic engagements and political pressure. Time will tell how successful these processes are.

Ottilia Anna Maunganidze, Head, Institute for Security Studies (ISS) Special Projects and Xhanti Mhlambiso, Researcher, Rule of law, ISS Pretoria.

First published by ISS Today.

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A first since IJC

Deadline: end of February

Mounting pressure on Israel