At the International Court of Justice last week, South Africa’s representatives made their arguments for the Court to adopt the following provisional measure (a legally binding interim order) among many others:
The State of Israel shall immediately suspend its military operations in and against Gaza.
South Africa offered strong arguments for its request but the Court may benefit from alternatives to consider. Here is one:
The State of Israel shall observe an immediate humanitarian ceasefire with Palestinian armed groups in Gaza. Further attacks by such armed groups may be met with a strictly limited and proportionate defensive response in strict conformity with international humanitarian law.
Let me explain South Africa’s request, Israel’s response, and my own proposal.
South Africa offers two basic arguments for its requested measure.
South Africa’s first argument is pragmatic. Gaza is on the brink of famine, and disease is spreading rapidly. The humanitarian crisis cannot be contained, let alone reversed, without a suspension of Israel’s military operations. The requested measure “is the only way to secure the humanitarian response and avoid yet more unnecessary death and destruction,” especially given the scale and indiscriminate nature of Israel’s military campaign.
South Africa’s second argument rests on principle:
If any military operation, no matter how carefully it is carried out, is carried out pursuant to an intention to destroy a ‘people’, in whole or in part, it violates the Genocide Convention and it must stop. That is why all military operations capable of violating the Genocide Convention must cease.
In other words, if the Court finds it plausible (the applicable legal standard) that Israel’s military campaign is motivated by genocidal intent, and risks irreparable prejudice to Palestinian rights under the Convention, then the Court cannot allow that military campaign to continue.
In its response, Israel calls the requested order “frankly astonishing” and offers two basic arguments against it.
Israel’s first argument draws on precedent. The Court recently ordered Russia to “immediately suspend military operations” against Ukraine. Israel argues that case was “fundamentally different.” The Court’s prior order did not rest on a plausible claim that Russian forces were committing discrete acts of genocide. Instead, the Court accepted Ukraine’s novel legal theory that Russia’s entire military operation rested on its (false) allegation that Ukraine was committing genocide against Russian-speaking Ukrainians, and that Ukraine has a plausible right not to be subject to armed force based on such a (false) allegation. Israel also invokes the Bosnia genocide case, in which the Court did not order Serbia and Montenegro to suspend military operations, but only to prevent discrete acts of genocide, apparently on the ground that a suspension order would protect rights not covered by the Genocide Convention itself. Israel concludes that the requested measure is not supported by the Russia case, and in fact “seeks to reverse” the Bosnia case.
Israel’s first argument is unconvincing. One of South Africa’s central claims is that Israel is committing genocide, not only by discrete acts of killing and injuring individual Palestinians, but also by deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, through a combination of siege, starvation, forcible displacement, and widespread destruction of civilian and medical infrastructure. Those conditions are now largely in place, and Israel’s ongoing military operations make it impossible for humanitarian workers to prevent those conditions from bringing about the physical destruction of the group. If the Court finds South Africa’s claims regarding genocidal intent plausible, then a suspension of military operations would be warranted to protect rights plausibly arising under the Genocide Convention.
Israel’s second argument is that the requested measure “would cause irreparable prejudice” to Israel and is “out of proportion with the protection that they are intended to give.” Even if some of Israel’s actions are plausibly alleged to be genocidal in character, others are not. Moreover, some of Israel’s actions have legitimate aims, such as suppressing rocket fire into Israel by Hamas and other armed groups. An order to suspend all military operations would sweep too far, prejudicing Israel’s rights without protecting the rights of South Africa under the Genocide Convention or protecting the Palestinians of Gaza from genocidal acts.
Israel’s second argument is exceptionally unconvincing because the failure to indicate any provisional measure along the lines of South Africa’s request would itself have grossly disproportionate effects on the rights at stake. The object and purpose of the Genocide Convention is to prevent the destruction of human groups. The Palestinians of Gaza face an imminent risk of group destruction, set in motion by Israel’s military campaign and impossible to prevent so long as Israel’s military campaign continues. Indiscriminate rocket fire into Israel by Hamas and other armed groups is illegal and criminal. It regularly causes terror and property damage, sometimes causes injury, and in rare cases kills civilians. But faced with a stark choice between ordering Israel to suspend military operations and allowing those operations to continue, there is no question that any credible balance of rights decisively favors the former.
Thankfully, the Court is not faced with such a stark choice, nor must the Court strike an equitable balance of rights all on its own. Some judges may hesitate to order what Israel describes as the “unilateral suspension of military operations by one party to the conflict only, leaving the other party free to continue attacks, which it has a stated intention to do.” The aim of my proposal is to give such judges a viable alternative to consider.
On December 8, 2023, all but two members of the UN Security Council voted to demand an immediate humanitarian ceasefire, with 13 of 15 States voting in favor and one abstaining, but they were prevented from taking that decisive action by the lone veto of the United States. On December 12, the UN General Assembly demanded “an immediate humanitarian ceasefire” in Gaza by a vote of 153 in favor and 10 against, with 23 abstentions. Though not legally binding, an overwhelming majority of the international community has found that an immediate humanitarian ceasefire strikes an appropriate balance between the rights of Palestinians in Gaza and Israel’s legitimate rights. In my view, the Court in its wisdom should make the same finding, and order Israel to observe an immediate humanitarian ceasefire.
It is true that the Court may indicate provisional measures only to States properly before it, in this case under the Genocide Convention. For this reason, the Court cannot order Hamas and other armed groups to accept or observe such a ceasefire. The Court’s order should be crafted accordingly. Israel cannot observe a ceasefire unless Hamas and other armed groups in fact cease fire. Should these groups resume attacks on Israel, the Israeli armed forces would be permitted to respond with strictly limited and proportionate defensive force, aimed at restoring the ceasefire, and not with a resumption of major offensive military operations. The wording I propose is meant to reflect these considerations, but no doubt could be further refined.
One objection to my proposal has been addressed already. It might be claimed that such an order would impair Israel’s right of self-defense under the UN Charter as well as under general international law. It would not. As just explained, the overwhelming majority of States in both the UN Security Council and the UN General Assembly have already found that Israel’s right of self-defense would not justify continued military operations if a ceasefire can be secured. There is no reason for the Court to give Israel’s right of self-defense a sweep and force that the overwhelming majority of States reject. As the principal judicial organ of the United Nations, the Court may instead rely on the findings of other UN bodies.
A second objection is more serious. My proposal does little to encourage Hamas and other armed groups to observe a ceasefire themselves, leaving its success in jeopardy. My proposal also does not address the ongoing captivity of over one hundred hostages for over one hundred days. The taking of hostages is always a crime. The taking of children, the elderly, and the infirm is an obscenity. The Court should find a way to recognize their rights.
While the Court cannot direct provisional measures at Hamas and other armed groups, it can direct provisional measures to the applicant before it: South Africa. Indeed, South Africa’s third request invites the Court to order both South Africa and Israel to “take all reasonable measures within their power to prevent genocide.” Similarly, the Court should craft an order along the following lines:
The Republic of South Africa shall take all reasonable measures within its power to ensure that Hamas and other armed groups observe an immediate humanitarian ceasefire, and immediately and unconditionally release all hostages in their power.
The legal rationale for such an order would be that further attacks, as well as the continued captivity of hostages, would tend to “aggravate or extend the dispute before the Court or make it more difficult to resolve” and therefore fall within the scope of the Court’s power to indicate provisional measures to the parties properly before it.
A final objection comes from the other direction. It might be argued that ordering Israel to observe a ceasefire, rather than simply to suspend military operations, creates too much space for Israel or Hamas to subvert the Court’s intent, continue hostilities, and endanger the civilian population at a time of maximum peril. This is a serious concern, but can be partially addressed by granting South Africa’s eighth request:
The State of 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.
I admit that this response is not entirely decisive. For that reason, I do not insist that my proposal is superior to South Africa’s request. But I submit this proposal for consideration by the Court in case some judges are reluctant to grant South Africa’s request as drafted.
The case brought by South Africa against Israel has understandably provoked strong feelings on all sides. Allegations of genocide are extremely serious and should not be lightly made. This wretched war has already killed and maimed tens of thousands of civilians. Two million civilians are now stalked by famine and disease. Time is running out. If there is any plausible case that the regrettably narrow legal requirement of genocidal intent is satisfied, then it is the moral responsibility of any State to approach the International Court of Justice, and it is the legal responsibility of the Court to indicate provisional measures. Whatever one thinks of South Africa’s prospects of success at the merits phase, years from now, one of South Africa’s claims cannot be denied. With the UN Security Council paralyzed by the repeated abuse of the veto by a permanent member, it is plain that “Nothing will stop this suffering, except an order from this Court.”