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The ICJ ruling in South Africa’s genocide case against Israel | Explained

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In a historic ruling, the International Court of Justice (ICJ) on Friday ordered Israel to take measures to prevent acts of genocide in Gaza, but stopped short of calling for an immediate ceasefire as requested by South Africa.

Judge Joan Donoghue, the President of the Court, said that Israel must “take all measures within its power” to prevent acts that fall within the scope of the Genocide Convention and must ensure “with immediate effect” that its forces do not commit any such acts either.

The Court did not deliver a final ruling on the core aspect of South Africa’s case — whether genocide has occurred in Gaza— but an overwhelming majority of its judges ruled in favour of emergency measures, including the entry of basic services and humanitarian assistance into the Palestinian enclave.

A final verdict can only be pronounced after hearings on jurisdictional challenges and the merits of the claim are concluded, which will likely take several years. However, Friday’s ruling strongly indicates that the judges believe that there is a “plausible” genocidal risk to Palestinians, thereby clinching an undeniable victory for South Africa.

It also puts other states showing solidarity with Israel on notice. Speaking to the media following the verdict, South African Minister of International Relations and Cooperation Naledi Pandor said that should the Court find that there has been a commission of genocide, the states that have aided and abetted it would be impleaded in the proceedings.

As established in the Court’s LaGrand judgment in 2001, such provisional rulings are binding, and non-compliance certainly entails the breach of an international legal obligation. However, whether Israel will choose to abide by the ruling is debatable since the ICJ does not have an enforcement mechanism of its own. Although the UN Charter authorises the UN Security Council (UNSC) to enforce the Court’s decisions, their compliance is often at the mercy of the power politics of its permanent members.

For instance, in March 2022, the ICJ ordered Russia to halt its offensive in Ukraine. Although the order was legally binding, Moscow decided to ignore it, resulting in the continuation of hostilities. Similarly, Friday’s ruling is likely to be vetoed by Israel’s strongest ally, the U.S.

Israeli Prime Minister Benjamin Netanyahu slammed the ICJ ruling as “outrageous” while underscoring that Israel is fighting a “just war like no other.” He reiterated the claim that Israel is defending itself and its citizens against Hamas and that it would continue to do so while adhering to international law.

But as experts have told The Hindu previously, this interim ruling as well as future proceedings in the case could significantly sway international public opinion and mount pressure upon Israel to ensure compliance. This is all the more likely since Israel has been ordered to report to the Court within a month on steps taken to give effect to the verdict.

Read the full order here.

Prima facie jurisidiction

At the very outset, the Court acknowledged that it is acutely aware of the extent of human tragedy unfolding in the Gaza Strip and is “deeply concerned about the continuing loss of life and human suffering.” It noted that following Hamas’ attack on October 7, 2023, Israel launched a large-scale military operation causing massive civilian casualties, extensive destruction of civilian infrastructure and the displacement of an overwhelming majority of Gaza’s population.

The Court’s jurisdiction was opposed by Israel on the ground that there exists “no dispute” between the parties since South Africa failed to provide “a reasonable opportunity to respond” before instituting the claim, as is required by the Court’s own rules. It also said that in the absence of any specific genocidal intent (dolus specialis), Israel’s military operations constitute an “act of self-defence” against Hamas.

Also Read: The issue of genocide and the world court

However, after perusing various statements issued by the two nations in several multilateral and bilateral forums, the Court concluded that “clearly opposite views” existed regarding Israel’s alleged violation of the Convention, which merits the prima facie existence of a “dispute.” It also pointed out that South Africa had made a complaint to the Israeli embassy in Pretoria, to which Israel had clearly responded.

Considering the low evidentiary threshold at this stage of the proceedings, it ruled that “at least some of the acts and omissions” alleged by South Africa against Israel are capable of falling within the provisions of the Convention thereby fortifying its jurisdiction to entertain the claim. This is entirely consistent with prior precedents, and in particular with the Ukraine v. Russia provisional measures order.

South Africa’s locus standi

The Genocide Convention has been ratified by an overwhelming number of states, including South Africa (1998) and Israel (1950). Article IX allows any state party to institute a case against another in the ICJ, even if it is not directly involved in the conflict. This is because the prohibition of genocide is considered a peremptory norm of international law (jus cogens) from which no derogation is permissible. This is the basis on which South Africa, a party that is technically unrelated to the conflict, instituted the ongoing proceedings. There exists a precedent for this — in December 2022, the Court ruled that Gambia could bring a genocide claim against Myanmar for its treatment of the ethnic Rohingya population.

Upholding South Africa’s standing to sue, the Court noted that “all States parties to the Convention have a common interest to ensure the prevention, suppression, and punishment of genocide” and thus any of them can seek compliance of such erga omnes obligations (obligations towards the international community as a whole) in any given case.

Threshold for an interim ruling

The Court ascertained that the standard to order provisional measures had been met, that there is a “plausible” link between the rights sought to be protected by South Africa (the rights of Palestinians to be free from genocidal attacks) and the measures it requests as well as a risk of irreparable harm and genuine urgency. This was an unsurprising declaration given the relatively low threshold — the Court did not have to determine that genocidal acts in Gaza had in fact occurred.

Relying on various statements from UN officials, special rapporteurs, and other international bodies regarding the catastrophic situation in Gaza, it observed that “the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.”

“The Court considers that the civilian population in the Gaza Strip remains extremely vulnerable. It recalls that the military operation conducted by Israel after 7 October 2023 has resulted, inter alia, in tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities, and other vital infrastructure, as well as displacement on a massive scale (see paragraph 46 above). The Court notes that the operation is ongoing and that the Prime Minister of Israel announced on 18 January 2024 that the war “will take many more long months”. At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating.”ICJ’s order in South Africa v. Israel

Notably, the Court took note of genocidal rhetoric from several senior Israeli officials to arrive at its conclusion. In particular, it referred to a statement by Defence Minister of Israel Yoav Gallant calling for a “complete siege” of Gaza and indicating to the troops that they were “fighting against human animals.” Reference was also made to President of Israel Isaac Herzog’s remark that there were no innocent civilians in Gaza since “the entire nation” was responsible.

The cognisance of such statements is significant as they could establish the “genocidal intent” required to arrive at a definite finding on the commission of the crime.

Highlighting the need for emergency measures, the Court observed that “the catastrophic humanitarian situation in the Gaza Strip is at a serious risk of deteriorating further” before it can render a final judgment.

Provisional measures

No immediate ceasefire

Declining South Africa’s request, the Court refused to issue an immediate ceasefire order as it had done previously in the Ukraine v. Russia case. Notably, Ukraine’s situation is factually and legally distinguishable from Gaza. In the case instituted by Ukraine against Russia, both parties were also the two involved in the conflict, while Hamas, as a non-state actor, is not a party to the ongoing proceedings.

Even though it is debatable whether Israel has the right to self-defence under international law in the context of Gaza, a ceasefire order would arguably have prevented it from participating in defensive military operations. As experts have pointed out, such a unilateral injunction was unlikely in this case.

Prevent all genocidal acts

The Court ruled that Israel must, in accordance with its obligation under the Convention, take all measures within its power to prevent the commission of all genocidal acts against Palestinians in Gaza,such as causing serious bodily or mental harm, killing civilians, and imposing measures intended to prevent births, among others.

[The measure was approved by a vote of 15-2. Dissenting judges: Judge Julia Sebutinde of Uganda and the Israeli representative, Judge Aharon Barak.]

Israel – Gaza1 – Gautam by Net Desk

Immediately restrain the military from performing genocidal acts

During the proceedings, South Africa accused Israel of furthering genocide through its state organs including the military. It pointed out that high-level Israeli politicians made genocidal statements, which were then echoed by soldiers on the ground in Gaza while making TikTok reels.

Addressing such concerns, the Court directed Israel to ensure “with immediate effect” that its military does not commit any genocidal acts either.

[The measure was approved by a vote of 15-2. Dissenting judges: Judge Sebutinde of Uganda and the Israeli representative, Judge Barak.]

Prevent incitement to commit genocide

Israel was ordered to take all measures within its power to prevent and punish “the direct and public incitement to commit genocide” against Palestinians in Gaza. This could have a direct bearing on the alleged incendiary rhetoric of high ranking Israeli officials.

[The measure was approved by a vote of 16-1. Dissenting judge: Judge Sebutinde of Uganda.]

Entry of humanitarian assistance

The Court ordered Israel to permit the entry of urgently needed basic services and humanitarian assistance into the Palestinian enclave. South Africa had alleged that Israel’s blockade of food, water, medicine, and other essential supplies had pushed Palestinians to the “brink of famine.”

[The measure was approved by a vote of 16-1. Dissenting judge: Judge Sebutinde of Uganda.]

Preservation of evidence

Israel was ordered to preserve evidence relating to the claim. This will ensure that vital evidence is not lost or destroyed before the merits phase of the case, when the Court has to conclusively determine if Israel has committed genocide or not. Such evidence will also be relevant for proceedings before the International Criminal Court (ICC), which is already investigating the possible commission of war crimes and crimes against humanity by both Hamas and Israel.

However, South Africa’s request to permit fact-finding missions, international mandates, and other bodies access to Gaza to assist in the retention of evidence was not entertained by the Court.

[The measure was approved by a vote of 15-2. Dissenting judges: Judge Sebutinde of Uganda and the Israeli representative, Judge Barak.]

Compliance

Israel was directed to submit a report to the Court on all steps undertaken to abide by the measures imposed by the Court within one month of the ruling. South Africa will have a chance to respond to this report. This will also provide an opportunity to present more evidence such as the recently declassified cabinet minutes explaining Israel’s intent behind the hostilities.

[The measure was approved by a vote of 15-2. Dissenting judges: Judge Sebutinde of Uganda and the Israeli representative, Judge Barak.]

Release of hostages held by Hamas

Although no interim order was issued, the Court said that it was gravely concerned about the fate of the hostages abducted during Hamas’ attack on October 7, 2023, and accordingly called for their immediate and unconditional release.

What happens next?

The UN Security Council is set to meet next week to deliberate upon the decision. The meeting, scheduled for Wednesday, has been called by Algeria, whose Ministry of Foreign Affairs said it would give a “binding effect to the pronouncement of the International Court of Justice on the provisional measures imposed on the Israeli occupation.”

The UNSC has long been divided on the conflict, with the U.S. having used its veto power multiple times to shield Israel from demands for a ceasefire. However, experts say that Washington’s veto of an ICJ-approved decision could undermine US President Joe Biden’s calls for others — especially its adversaries Russia and Myanmar — to uphold the Court’s rulings.

Following the verdict, nearly a dozen Western countries including the U.S. have suspended funding for the United Nations’ refugee agency for Palestinians (UNRWA) owing to allegations that its staff were involved in the October 7 Hamas attacks on Israel. Established in 1948, UNRWA provides education, health, and emergency aid services to about two-thirds of Gaza’s 2.3 million population and has played a pivotal role during the war.

Although many have been left disappointed by the Court’s refusal to order a ceasefire, experts say that this was an expected outcome. Thomas Macmanus, a law professor at Queen Mary University in London, told Al Jazeera that he was not surprised that the Court did not ask for a ceasefire because, in a way, it would “render Israel defenceless against an attack, and that’s not really within the purview of the Court in this case.”

According to Tuqa Nusairat, the Director for Strategy, Operations, and Finance at the Atlantic Council’s Middle East Programs in Washington, the ruling should make U.S. rethink any further diplomatic, economic, and military support to Israel.

“The Court’s initial decision puts to rest the Biden administration’s claim that the case is “meritless,” and should force the United States to come to terms with the fact that its support for Israel is not only rejected by much of the international community, but it is now subject to possibly defending itself against accusations of supporting a possible genocide in Gaza. The fifteen-to-two vote by the Court on almost all the provisions speaks to how united much of the world is in its view of how Israel has conducted its military operations in Gaza,” she asserted.



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Israeli Supreme Court’s historic verdict against Netanyahu’s judicial overhaul law | Explained

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The story so far: Israel’s Supreme Court on January 1 struck down a law limiting its own powers — a momentous step that threatens to reopen the fissures in Israeli society that preceded the country’s ongoing war against Hamas. The controversial legislation passed by Israeli lawmakers on July 24, 2023 prevents judges from striking down government decisions on the ground that they are ‘unreasonable.’

The Court’s 8-7 ruling for the first time struck down an amendment to the country’s quasi-constitutional “Basic Laws” by underscoring that it would deal a “severe and unprecedented blow to the core characteristics of the State of Israel as a democratic state.” The revoked law was part of Prime Minister Benjamin Netanyahu’s divisive judicial overhaul plan that sparked months of mass protests and triggered one of the deepest political upheavals in Israel’s 75 years. Thousands of Israeli army reservists, who constitute the backbone of the military, also threatened to stop reporting for service as a mark of protest. However, they subsequently set aside the vow with the onset of war.

The decision, however, did not come as a total surprise — a draft of the ruling was leaked to the media during the last week of December. Reacting to the leak, Minister of Justice Yariv Levin claimed that the “citizens of Israel expect the Supreme Court not to publish during a war a ruling that is controversial even among its judges.” Echoing similar sentiments, the speaker of the Knesset, Amir Ohana, added that “a time of war is certainly not the time to establish a first precedent of its kind in the history of the country.”

The timing of the verdict was also crucial as a delay of a few weeks might have produced a different outcome. The recent retirement of two justices, Chief Justice Esther Hayut and Justice Justice Anat Baron, imposed a deadline of mid-January to pronounce the ruling, after which they would have been ineligible to participate in it.

“It’s a small and fragile majority. Two of those justices are no longer presiding in the court — and today’s court would likely have a majority take the opposite view,” law professor Yedidia Z. Stern, who was involved in talks to broker a compromise on the judicial overhaul, told a news portal.

The ‘reasonableness’ doctrine

In the absence of a written constitution, the country’s Basic Laws serve as an informal constitution, governing core constitutional ethos such as the creation and role of state institutions, relations between state authorities, and the protection of some civil rights.

The power to review the legality or ‘reasonability’ of laws is analogous to the power of judicial review vested with Indian courts. There is no law defining judicial review powers; the grounds for judicial intervention in administrative affairs have been promulgated through court rulings.

One such legal standard is the ‘reasonableness doctrine’ or the standard of extreme unreasonableness, derived from the Wednesbury unreasonableness principle in English common law. A decision is deemed unreasonable if a court rules that it was made without considering all relevant factors or without giving relevant weight to each factor, or by giving irrelevant factors too much weight— even if they do not violate any particular law or contradict other administrative rulings. Notably, the judiciary cannot revoke government decisions simply because they disagree with them. Under the doctrine, such revocation is permissible only in cases in which the balance between the various considerations that were made is unreasonable to an extreme.

Explained | What is the ‘reasonableness’ doctrine at the heart of Israel’s judicial overhaul?

In January last year, the Supreme Court invoked this doctrine and ordered Prime Minister Netanyahu to dismiss his key ally, Shas leader Aryeh Deri from his cabinet, on the grounds that his recent criminal conviction for tax offenses, and a resultant suspended jail sentence which was yet to expire, made his appointment ‘unreasonable in the extreme.’ This prompted the government to set in motion a plan to limit judicial review over executive actions.

What does the verdict say?

In a majority ruling (supported by twelve of the fifteen justices), the Court held that it has the power to judicially review Basic Laws and interfere in exceptional cases where the Knesset exceeds its constituent powers. In addition, eight of the justices struck down the amendment to the Basic Law: The Judiciary through which the Knesset proposed to revoke judicial review of the reasonableness of executive decisions. The seven dissenting judges, however, saw overreach in the decision, saying that the doctrine of reasonableness “undermines basic democratic principles including the separation of powers.”

The majority, led by departing Chief Justice Esther Hayut, underscored that the reasonableness standard was a crucial tool to protect against arbitrary government overreach, particularly in Israel, which lacks a formal constitution. She underscored that the newly enacted law “does the most severe harm possible to the principle of the separation of powers and the principle of the rule of law,” which constitutes “a severe blow to two of the most explicit characteristics of Israel as a democratic state.”

While cautioning about the extreme ease with which a Basic Law can be amended (with a simple majority in the Knesset), the Chief Justice asserted that judicial review is critical in “defending the individual and the public interest.”

““In rare cases in which the beating heart of the Israeli form of constitution is harmed, this court is authorized to declare the invalidation of a Basic Law that has in some way exceeded the Knesset’s authority.””Chief Justice Esther Hayut

Revoking the doctrine “harms several cornerstones of jurisprudence and democracy: the rule of law, the right of due process, the separation of powers,” said Justice Amit Yitzhak Amit, another member of the court’s liberal wing. He pointed out that “given the heavy democratic deficit in Israel,” such a revocation has much “greater weight here than in other countries.”

Although Justice Alex Stein, a conservative judge, concurred with the majority that the Court had the right to curb the unbridled powers of the Knesset to pass Basic Laws, he emphasised that it was not obligated to strike down the impugned law. He added that revocation of the doctrine “violates no constitutional norm.”

In an opinion for the minority, Justice David Mintz underscored that judicial review of even regular legislation was “not based on strong foundations” and as such there was “for sure no authority allowing for the court to deliberate on the validity of a Basic Law” or to strike one down.

“Annulling a Basic Law based on an amorphous doctrine and an undefined formula carries a heavy price from a democratic point of view, certainly when it comes to an issue about which the Court itself is in an ‘institutional conflict of interest,’” he wrote.

Justice Yael Wilner observed that the doctrine of “existing interpretation” should be used to interpret the law more narrowly and allow for review only in cases where an administrative decision is extremely unreasonable. Pointing out that there exist alternative grounds for judicial review such as proportionality, arbitrariness, and discrimination, she asserted that the amendment “does not seriously harm the democratic identity of the State of Israel.”

How have Israeli politicians reacted to the ruling?

Prime Minister Benjamin Netanyahu’s Likud party said that the Supreme Court’s decision was “in opposition to the nation’s desire for unity, especially in a time of war.” They slammed the judges for ruling on the issue when Israeli soldiers are “fighting and endangering themselves in battle.”

Israel’s justice minister and architect of the law Yariv Levin accused the judges of “taking into their hands all the authorities that are supposed to be divided between the three branches of government in a democracy.” He added that the ruling was “the opposite of the spirit of unity required these days for the success of our fighters on the front.”

However, opposition leader Yair Lapid welcomed the verdict and said on social media platform X that the apex court had “faithfully fulfilled its role in protecting the citizens of Israel.”

“If the Israeli government again starts the quarrel over the Supreme Court then they have learned nothing,” he said. “They didn’t learn anything on October 7, they didn’t learn anything from 87 days of war for our home.”

Benny Gantz, a member of Israel’s war cabinet, said that the Court’s decision “must be respected” and political disputes postponed until after the war. Although initially opposed to the overhaul, he subsequently joined an emergency wartime unity government with Mr. Netanyahu.

Shikma Bressler, one of the organisers involved in last year’s large-scale protests against the law also hailed the Court’s ruling, saying in a video statement that the top Court had for the moment removed “the sword of dictatorship from around our necks”.

Editorial |Blow to Netanyahu: On Israeli Supreme Court’s verdict and limiting the judiciary’s powers

What happens next?

Prime Minister Netanyahu has so far not issued any personal response to the ruling and had repeatedly refused to state whether he would respect the Court’s decision when asked in the months leading up to the pronouncement. Justice Minister Yariv Levin, however, said that the ruling would not “stay our hand,” indicating a potential standoff between the right-wing government and the judiciary.

However, considering the ongoing war with Hamas and the need to maintain national unity, any immediate countermove against the decision seems unlikely. Across the Israeli political divide, both proponents and opponents of Mr. Netanyahu’s judicial overhaul plan have stressed the need to avoid any domestic turmoil.

In normal times, the decision may have led to a constitutional crisis or worse. “If we didn’t have the (Hamas) war, we would have had an internal war and we’ve avoided that,” Reuven Hazan, professor of political science at the Hebrew University of Jerusalem, told CNN.

“But this precedential verdict also raises another and no less critical aspect: the importance, after the war, of reinforcing the constitutional rules of the game, placing checks and balances on political power, and better defining the relations between the branches of the state,” wrote Suzie Navot, an expert in constitutional law and vice president of the Israel Democracy Institute, an independent research group.

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