On Thursday, January 11, 2024 and Friday, January 12, 2024, the International Court of Justice (ICJ) at the Hague held public hearings in the case brought on 29 December 2023 by South Africa against Israel for alleged violations of the Genocide Convention during its operations in Gaza. The hearings were devoted to the question whether or not the Court should issue the provisional measures requested by South Africa, which, pursuant to article 41 of the ICJ Statute, are required to “to preserve the respective rights of either party.” Among the measures sought by South Africa was the request that “[t]he State of Israel shall immediately suspend its military operations in and against Gaza.” The Court is now deliberating on the requested measures, and a decision could be issued in a matter of a few days or weeks. Given that some judges are retiring on February 5, it is highly unlikely that the decision would be rendered after that date.
In this essay, we address three aspects of the case, which were central to the hearings:
(1) the different ways in which the parties framed the events that have transpired in Gaza after the massacre of October 7 committed by Hamas inside Israel;
(2) the battle over the request to suspend the Israeli military operation – which might be the real raison d’être for the South African application; and
(3) the relationships between the different conditions for issuing provisional measures – prima facie jurisdiction, plausibility of rights, relevance of remedies, urgency and irreparable harm.
Whereas South Africa substantiated in its presentation the latter two conditions, Israel has been able to considerably damage South Africa’s plausibility claim. The Court’s decision on provisional measures might therefore illustrate whether a legal weakness in one condition could be compensated by the compelling nature of other conditions.
The South African application and its oral presentation followed a specific narrative: Following the attack of October 7, which South Africa condemned (although Israel questioned its real-time reaction – see Jan. 12 verbatim record, at p. 16), Israel commenced a massive attack on the Gaza Strip. The extreme measures allegedly taken by Israel in response to the attack brought widespread destruction of an unprecedented nature, and severely impacted the entire population of Gaza. The disproportionate nature of this response implies that it is not based on military necessity (in the words of Prof. Lowe, counsel for South Africa, it “cannot credibly be argued to be a manhunt for members of Hamas,” see Jan. 11 verbatim record, at p. 77), but on other, genocidal motivations. The extent of the harm and suffering inflicted on the Palestinian population of Gaza – which the South African team presented to the Court in great detail, relying on extensive UN materials (see e.g., here) – is said to meet several of the actus reus requirements of article 2 of the Genocide Convention (especially, killing members of the group, causing to them serious harm and inflicting on them destructive conditions of life). That documentary record is also said to provide contextual evidence for the South African claim that this pattern of acts was committed with genocidal intent (i.e., the Convention’s requirement of “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”). Such purported intent is also supported by a series of inciting statements issued by Israeli public figures, which South Africa presented before the Court.
Israel’s narrative of events was starkly opposed to that of South Africa. Israel did not deny the harm and suffering experienced by many Palestinian civilians. It did note, however, that harm and suffering were also experienced by Israeli civilians, especially those many tens of thousands displaced from their homes and the more than 130 Israeli hostages still held in Gaza. More to the point of the exchange, Israel maintained that the harm and suffering experienced by Palestinian civilians were a regrettable, wholly undesirable but ultimately inevitable consequence of an intensive armed conflict taking place in an urban area. Israel maintained that it “did not start and did not want” this war against a terrorist organization “whose brutality knows no bounds” (see Jan. 12 verbatim record, at p. 12). The Israeli narrative thus focused on the behavior of Hamas to which it ascribed the main responsibility for the harm and suffering. According to Israel, Hamas systematically embeds its military assets and fighting units inside or under civilian and other specially protected facilities such as hospitals, launches rockets from areas designated as “humanitarian zones,” and steals humanitarian supplies from the local civilian population. The IDF, on its part, has undertaken many efforts designed to mitigate the harm and suffering of Palestinians civilians (including early warning calls, humanitarian corridors for evacuation, facilitating humanitarian aid, etc.).
This legal narrative served two purposes in Israel’s submission. First, Israel claimed that its military actions did not amount to violations of the actus reus requirement of the Genocide Convention. According to this line of thinking, if the attacks in Gaza were not in violation of international humanitarian law (IHL), they could not conceivably be considered illegal under the Genocide Convention. Second, the armed conflict against Hamas arguably provides an explanation other than genocidal intent for the military measures taken by Israel. We note in this regard that the past jurisprudence of the ICJ has set a very high standard of proof for inferring specific genocidal intent from patterns of conduct. For example, in the Bosnia v. Serbia case, the Court held that “for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent” (para. 373). The Israeli claims about military necessity were aimed at pushing the South African case far below that threshold. Furthermore, the evidence presented by Israel on its extensive harm mitigation efforts was designed to paint the allegations that the IDF’s operations were driven by a genocidal intent as implausible. While one may question the ultimate effectiveness of some of the measures taken — for the purposes of a genocide case, it is the intent, not success of the measures, that counts most.
The different narratives promoted by the parties to the case manifested themselves in the foregrounding and backgrounding (or concealing) of certain inconvenient facts. South Africa highlighted the tragic and extensive loss of Palestinian lives, the loss of safety for Palestinian civilians (“no safe space in Gaza”; Jan. 11 verbatim record, at p. 72) and the growing humanitarian catastrophe on the ground, inter alia, in a very serious food insecurity situation, approaching famine. It failed to acknowledge, however, that the casualty figures published by Hamas may include a significant number of combatants. Nor did it mention the extensive use by Hamas of underground tunnels in civilian areas, the ongoing clashes between Hamas militants and IDF soldiers, the continuing launching of Hamas rockets toward Israel, and the ever-growing plight of the Israeli hostages and their families. Without those facts and that context, of course Israel’s actions could be made to look wholly illegitimate and malevolent. Furthermore, the South African team did not discuss the responsibility of Hamas for the heightened risk posed to Palestinian civilians due to their initial attack on Israel, the human shielding methods by which they try to repel the Israeli counterattack, and their interruption of the delivery of humanitarian aid. Instead, the legal team laid all responsibility for the humanitarian situation on Israel.
Israel, on its side, highlighted the decision-making process surrounding the IDF military operation, Israel’s many security challenges and the centrality of international humanitarian law in shaping its military response. It did not mention in its comments the controversial siege measures it imposed on Gaza (such as and especially its policy of cutting water supplied to the northern part of the Gaza Strip) and the obstacles it still places on access of humanitarian convoys to the North (such measures might have been intended to encourage civilians to move to the South and remain there). The extensive destruction of property in northern Gaza and the ambiguity surrounding the terms for allowing Palestinian civilians to return to reside there were other substantially buried concerns.
Impact of the Competing Narratives on the Provisional Measures Decision
The Court’s decision on the request for provisional measures is likely to be influenced by these competing narratives, which mirror to some extent the traditional tension between international human rights law and IHL (one being more victim oriented and one being more attuned to military necessities) and even the tension between Geneva Law and Hague Law within IHL (one focused on protecting certain categories of persons and one on regulating the conduct of hostilities). The South African narrative, which is victim-oriented, underscores the urgency of the situation and the irreparability of the harm to Palestinian civilians should the Court fail to intervene. The Israeli narrative, on the other hand, underscores the implausibility of the claim of special genocidal intent: By placing the self-defence actions of the IDF in response to Hamas’s military operations at the center of its legal narrative, Israel presented its Gaza campaign as one undertaken by a military, with a clear chain of command and multiple legal safeguards (such as legal advisors and fact-finding investigative bodies), that regards military necessity in compliance with IHL as the principal framework for its operations. Such an hierarchical and professional organization is unlikely to be easily swayed by inciting statements by irresponsible politicians. The fact that its extensive harm mitigation activities are embedded in large organizational structures (a civilian harm mitigation unit and COGAT – the Coordination of Government Activities in the Territories) – further weakens the plausibility of identifying, at the organizational level and within decision-making bodies, a pattern of action consistent with having a genocidal intent.
At the same time, it is unlikely that the Israeli “armed conflict narrative” helped its legal team persuade the Court that the situation in Gaza is not as urgent as claimed by South African and a multiplicity of UN and other humanitarian agencies. Clearly, the continuing hostilities represent a most significant factor contributing to the humanitarian crisis. We note, in this context, that Israel did try to claim that the “intensity of the conflict has been decreasing” and that many Israeli forces have been withdrawn from the Gaza strip (Jan. 12 verbatim record at 53). It is not likely that these assurances would convince the Court that the population of Gaza is no longer subject to acute risk.
Given the incompatibility of the two legal narratives, the temporal order of the oral presentations might prove to be significant for the decision on provisional measures. Since South Africa had no opportunity to rebut the Israeli submissions, its case, at this stage, might hinge on the extent to which the Court is willing to apply the plausibility standard in an holistic manner, without examining separately the plausibility of establishing special genocidal intent (notwithstanding tendencies in the Court’s recent jurisprudence to apply the test of plausibility to essential elements of the rights claimed). It remains to be seen whether the Court would embrace the approach to plausibility of intent proposed by the South Africa team – i.e., that special genocidal intent is one plausible inference from the facts (see Jan. 11 verbatim record, at p. 52) – effectively putting for the purposes of this provisional stage the “only plausible inference” test applied in Bosnia v. Serbia on its head. Yet, even under this flexible formulation, it is doubtful whether following the presentation by Israel — which seemed to have effectively rebuffed the claim that the IDF operated in Gaza on the basis of instructions that carried special genocidal intent — the evidence put forward by South Africa reaches the minimal level of “reasonable possibility” that the claimed right is actually threatened, which the Court tended to require in earlier cases.
Use of Force and Use of Courts
Although the case brought by South Africa centers on claims of genocide, some of the most meaningful legal exchanges during the provisional measures stage focused on the request to order Israel to suspend its military operations. It has already been commented that in some ICJ cases, obtaining time-sensitive provisional measures has strategic importance that is separate from any legal or political benefit that attaches to obtaining a judgment on the merits. In fact, the relatively high threshold required to prove genocide at the merits stage, and the relatively low threshold of plausibility required for issuing provisional measures creates structural incentives for States to institute proceedings and ask for provisional measures, even when they know that they have slim or essentially no chance of winning the case on the merits. The South Africa genocide case may be another example of this phenomenon of States pushing for provisional measures in a case in which prospects for prevailing on the merits are low.
At this point in time, an order to stop the war could have dramatic political and strategic consequences for Israel and Palestine, over and beyond removing an immediate threat of harm to the civilian population in Gaza. It may prevent regime change in Gaza, allow Hamas to obtain an important political victory and to maintain valuable assets, including the Israeli hostages it holds, and require Israel to freeze a situation on the ground which it regards as highly incompatible with its national security. Such consequences may be more significant for the Israel-Gaza conflict than a legal finding on genocide issued several years down the line. Furthermore, even if the Court would not order a halt to the military operation, South Africa probably hopes that a mere decision by the ICJ that the claim of genocide is plausible could help the Palestinians galvanize international pressure against Israel to do just that.
For Israel too, the provisional measures stage is critical, as it depends on international support – of the United States as well as several other liberal democracies – to complete its push to remove Hamas from power and release the hostages. An ICJ measure that classifies the continuation of the war as illegal or qualifies the claim of genocide as plausible could complicate this mission, and might create tensions between Israel and its allies.
It is against this background that both parties dedicated some of their presentation to address an issue that is not, formally speaking, part of the genocide case – whether Israel’s military operation is lawful under international law on the resort to force. Both parties seem to have assumed in that regard that it would be very difficult for the Court to order Israel not to exercise a legally available right of fundamental importance such as the right to self-defence, especially in circumstances where the Court has no authority to order the suspension of hostilities by the other side to the conflict – Hamas. The South African team claims in this regard were rather short – possibly because the discussion of self-defence did not sit well with their broader legal narrative that the crux of the case is not an armed conflict between two belligerents, but rather an man-made humanitarian crisis. Prof. Lowe argued, “What is Israel is doing in Gaza, it is doing in territory under its own control. Its actions are enforcing its occupation. The law on self-defence under Article 51 of the United Nations Charter has no application. But that is not the main point. The main point is much simpler. It is that no matter how monstrous or appalling an attack or provocation, genocide is never a permitted response. Every use of force, whether used in self-defence, or in enforcing an occupation, or in policing operations, or otherwise, must stay within the limits set by international law, including the explicit duty in Article I of the Convention to prevent genocide” (p. 80 of the Jan. 11 verbatim record).
Israel, here too, had the advantage of having the final word. It flatly denied the claim that the Gaza Strip was occupied (p. 38 of the Jan. 12 verbatim record) and asserted its inherent right to defend itself. It cited in support of this proposition the academic writings of Prof. Lowe himself in the context of use of force against non-state actors (“Force may be used to avert a threat because no-one, and no State, is obliged by law passively to suffer the delivery of an attack”). In fact, Israel asserted that given the genocidal intentions of Hamas, a request to suspend a military operation that is intended to protect its citizens from genocide is an absurdity (p. 17). We note that Israel did not explicitly engage with the terms of article 51 of the UN Charter in its oral presentation – perhaps in order to avoid the need to classify the specific type of self-defence it is claiming to act on given the controversies surrounding the applicability of article 2(4) and 51 to occupied territories and to non-state actors. Instead it asserted an inherent right to defend itself and its citizens – hoping that this would suffice for the Court to hold that Israel has a plausible right to use force that must be respected when issuing provisional measures.
South Africa did not directly contradict in its own presentation Israel’s inherent right claim, but simply noted its position that article 51 is inapplicable, as well as the obvious point that any use of force has to comply with the Genocide Convention. (We note in passing that the South African claim that Security Council Resolution 2720 recognized that the Gaza Strip is occupied is inaccurate. The Resolution simply noted that the Gaza Strip is “an integral part of the territory occupied in 1967,” without referring to its current status under the laws of belligerent occupation. The status of the Gaza Strip before October 7 is uncertain, and few – if any experts – maintained that the laws of occupation fully applied there or that Israeli had effective control on the ground in Gaza).
It has been suggested, in this regard, that ordering a State to cease military operations when it claims it is applying its inherent right of self-defense actually lies outside the authority of the ICJ. This is because the UN Charter, through which the ICJ was constituted, clearly states that Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, (UN Charter article 51). While the conclusion that the ICJ lacks authority to review this aspect of the case might be questioned (see here), the problem of scope of competencies might further support a prudent approach by the Court when requested to order a UN Member State to cease a military operation when the other party to the conflict, Hamas, would not be committed to ceasing its own military operations and to complying with other international law requirements related to the military conflict (e.g., release of the hostages).
It appears to us that the upshot of this part of discussion is that, on the basis of the oral stage of the proceedings, it would be unlikely for the Court to accept “as is” the South African request for ordering the end of the Israeli military operation. It is more likely that, if provisional measures will be issued in relation to the military operation, they will focus on requiring Israel to ensure that such military operations do not violate the Genocide Convention (i.e., measures along the lines of those indicated in the Myanmar case), or that Israel should take specific measures aimed at better protecting civilians and improving the conditions of life in the Gaza Strip through facilitating greater access to humanitarian aid (i.e., measures along the lines of those indicated in February 2023 in the Armenia/Azerbaijan case).
What Will the Court Do?
On the basis of the above analysis, it is difficult to predict how the Court will decide the provisional measures request. To us, it does not look as if South Africa has made a plausible case that the Israeli military operation is genocidal in nature. While the humanitarian situation in Gaza is dire indeed, and could worsen still if the armed conflict continues, Israel was able to show convincingly that its military operation has been conducted within a traditional IHL framework, premised on military necessity and reducing harm to civilians. Even if certain specific measures taken as part of the military campaign, such as specific targeting decisions or the application of siege warfare in North Gaza, are very problematic under IHL, they do not color the military campaign as genocidal in nature (and South Africa has not shown that those measures, in themselves, constituted acts of genocide, motivated by a genocidal intent). Israel was also effective, in our view, in putting the inciting statements of Israeli officials in the proper organizational context and in showing that they had no impact on the conduct of the war and the measures adopted therein. Indeed, that was not simply an effort of countering evidence with evidence, but of showing a gap in South Africa’s attempt to establish a prima facie case. Still, we cannot exclude the possibility that for some judges on the Court, the urgency and seriousness of the situation could support a push to lower the plausibility standard (as proposed by judge ad hoc Claus Kress in the Myanmar case). In other words, a key question that the Court will have to address is whether a weakness with respect to one condition – plausibility – can be compensated by strengths shown with respect to other conditions – here, urgency and irreparability. If the Court will indeed follow such an approach, this would be a significant achievement for South Africa. Still, the actual effect of any specific provisional measure on Israel’s decision-making relating to war would remain to be seen. (We note, in this regard, Prime Minister’s Netanyahu preemptive – and to our mind, unfortunate – statement that Israel would not be stopped by The Hague in restoring security to its citizens).
We also note, in this regard, that a decision to issue provisional measures may serve the short-term institutional interests of the Court – presenting itself as sensitive to the horrifying plight of the Palestinian people and inserting itself in yet another high profile international crisis. In the long run, however, we believe such an intervention might harm the Court, since it could encourage abusive litigation brought before it with little to no prospect for prevailing on the merits, but with the main purpose of procuring provisional measure orders. Such a litigation strategy might also lead States to consider introducing reservations to sensitive conventions containing compromissory clauses conferring dispute settlement competence to the ICJ, or even withdrawing from them altogether.
One area to pay particular attention to may be the Court’s treatment of South Africa’s 6th request – to issue an order that deals, inter alia, with incitement to genocide by Israelis. As we noted in an earlier essay on the topic, we are of the view that some of the statements described in the South African application – mostly of fringe politicians and TV commentators – are incompatible with the Genocide Convention. Here, we do not see a problem with South Africa satisfying the plausibility requirement. The question in this regard is, however, whether the other conditions needed for issuing provisional measures – especially, urgency – have been met, given the disconnect between these statements and the IDF military operations. The reference by the Israeli team to the recent notice by the Israeli attorney general and state attorney announcing an examination of the criminal law dimensions of some of the statements made (p. 74 of the Jan. 12 verbatim record) might suggest that intervention by international judicial action in this matter is premature. Still, it cannot be excluded that the Court will use the opportunity presented by this relatively “low-hanging fruit” to make its voice heard on the Gaza situation and offer something meaningful to South Africa while not giving it everything it requests.
Photo credit: International Court of Justice courtroom on the second day of hearings for Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Friday, January 12, 2024 (UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ)