War and order: What the ICJ preliminary ruling really means for Gaza

The ICJ’s order is a step in the right direction but the drums must continue to be beaten for a ceasefire as the court has ignored that cry.
Published January 27, 2024

Exactly two weeks after public hearings concluded, the International Court of Justice delivered on Friday its preliminary order in the South Africa vs Israel case. This is an almost record turnaround time for the court, which seems to be awkwardly aware that it is being watched by the world.

The order itself was entirely as expected. It was largely in South Africa’s favour as the ICJ decided that there was a plausible risk that Israel is committing genocide in Gaza. Israel was ordered to take all measures to prevent the commission of genocide, prevent and punish the incitement of genocide, allow humanitarian assistance into Gaza, prevent the destruction of evidence, and report to the court on its implementation of the order within a month.

But, while the court ordered that Israel prevent a genocide, it did not order it to stop the war. South Africa had requested this on the basis that, ‘Nothing will stop this suffering except an order from this court’.

The court did not, however touch upon this issue, with its order almost reading like it suffered from selective amnesia with regards to the request for a ceasefire. It did not order one or discuss the request, preferring to stay far away from discussions of Israel’s right to self-defence without demanding a halt to the military operations (as it had in Russia vs Ukraine).

Instead its order largely mirrors that already given a few years ago in the Gambia vs Myanmar case and the court required that Israel take much the same measures as those taken by the Burmese government in relation to its treatment of the Rohingya Muslims.

There is reason to not judge the court too harshly for this. The facts of Russia’s invasion of Ukraine are markedly different and issues of Israel’s right to self-defence in a territory it occupies are too murky to be handled in an order rustled together in two weeks. While I would have welcomed a call for a ceasefire, it may have been premature in a case where arguments on this point had not even been heard. But perhaps that is an aspect that only an international lawyer could appreciate, safely ensconced in my esoteric interest in the field, while Palestine perishes.

The bench

The order that we have though is a step in the right direction. The ICJ has ruled there is a plausible risk that Israel is committing genocide in the Gaza strip and it will now consider in the merits stage whether a genocide is occurring. This determination will likely take years — in Bosnia vs Serbia, the court took 10 years to reach the conclusion that there had been a genocide in Srebrenica.

In the meantime, however, this order will likely trigger cases in domestic jurisdictions as third states assess how they can continue to offer military support to Israel given this plausible risk and its (expected) future non-compliance with the order. Like almost half of the states the ICJ gives orders to, it is likely Israel will refuse to enforce it and, should the matter come to the UN Security Council, that the US will use its veto to protect its client-state — though at this stage, it is fuzzy to me whether Israel is the US’ client state or is it the other way round.

The judgment does show that there is much support for South Africa’s arguments on the bench. While the Israeli and Ugandan judges voted against many of the measures, the other 15 judges voted in favour.

Many commentators prior to the ruling had speculated that the judges’ votes would align with their states, but this has proven to not be true, signalling confidence in the court. I have far more faith in the ICJ than to unfairly tarnish it with accusations of political bias, especially given its record on matters relating to Palestine.

An indication of the fact that the judges are far more agents of the law than their state is the fact that even the Israeli judge voted in favour of humanitarian assistance whereas the Ugandan judge — the court’s first African female on the bench — did not. The latter rather disappointingly argued in a bizarre opinion that there was no jurisdiction in the case because there was no indication of genocidal intent. She further argued that the dispute was a political one and should be decided by political settlement, not by a political order by the court.

This is a common claim which ignores decades of Israeli intransigence and the role of the law as a vehicle for political resolutions. But to even trump a measure giving humanitarian assistance on this basis is pretty savage, especially given the ongoing devastation in Gaza.

But the separate opinions also indicate an uphill battle for South Africa at the merits stage, with the German judge indicating already that he does not believe Israel is conducting its military operation with genocidal intent. The threshold for proving a plausible risk of genocide is far lower than proving an actual genocide exists.

The Global South as a rule enforcer

Most importantly though, this case has shown the world at large the shifting sands of power in relations between states. The Global South, having long looked at itself from the lens of the Global North, is now turning the looking glass back on their colonisers.

Non-Western international lawyers have been underestimated by their Western counterparts and are now using the language of the law to destroy their arguments. It may be that only the masters’ tools can destroy the masters’ house. In wielding these tools, the Global South has graduated from being the chastised rule-breaker of a Western global ‘order’ to now gaining enough power within that order to become a rule enforcer — and we are enforcing them against the rule makers.

The road ahead

As international lawyers, we’re not naive enough to think that the court’s order presents an antidote to the Palestinian issue. It is nothing but a neutered piece of paper that does little while Gazans cling to life by a thread.

But as American political scientist Samuel Huntington has admitted, “The West won the world not by the superiority of its ideas or values or religion (to which few members of other civilisations were converted) but rather by its superiority in applying organised violence. Westerners often forget this fact; non-Westerners never do.”

Our part of the world has convulsed internally seeing that one of us remains unfree and is still being subjected to violence by an imperial power. But we bid to overcome this by the superiority of our ideas and values.

The ICJ’s order is a step on that road but the drums must continue to be beaten for a ceasefire as the court has ignored that cry. The Global South now finds itself at a crossroads where they are supported by law, rights, morality, and the will of most of the world in a bid to end this struggle between law and arrogance.

Header image: The International Court of Justice court room, principal judicial organ of the United Nations located at the Hague. — Photo via Shutterstock