Unpacking the ruling of the International Court of Justice

– In the case brought by the South African government against Israel

We recently covered Judge Dennis Davis’s analysis of the case brought against Israel by the South African government in the International Court of Justice (ICJ) prior to the ruling of the Court. (See Understanding South Africa’s case against Israel at the International Court of Justice – Cape Jewish Chronicle.)

Now that the Court has issued its ruling, we bring you a summary of what Judge Davis said about the ruling during a community briefing organised by the SA Jewish Board of Deputies and the South African Zionist Federation on 29 January.

It is important to note that this was not a ruling on whether or not Israel has committed genocide, as many in the public think. A ruling of that sort would take many years of evidence-collection and of argument, whereas the case currently was about an interim order – an urgent matter – relating to ways in which the death toll among the Palestinians could be reduced. As such, the ICJ did not conclude that Israel has breached the Genocide Convention.

Judge Davis went on to indicate that he thinks it unlikely that the Court will hear the genocide case because of issues relating to time: it is likely that the current conflict will cease before the ICJ would be able to complete all the work needed to rule on whether genocide was committed.

In his summary during the community briefing, Judge Davis referred to the core elements of the case, which are discussed below:

  • The issue of the jurisdiction of the ICJ over the matter, which was an argument made by the Israeli legal team. Judge Davis explained that it was never likely that the Court would have turned the case away on the basis of jurisdiction since the urgency of the concerns relating to the death of civilians means that an intervention of some sort may have been necessary.

It is interesting to note that the one dissenting judge on all the charges brought before    the Court – a judge from Uganda – felt that she could not comment on any of the charges because she did not believe that this was a case for the ICJ but that it is a matter that falls within the political arena. 

  • The Court also looked at the question of the plausability or likelihood that Israel breached the terms of the Genocide Convention. As Judge Davis indicated in his earlier analysis, the test for plausability was held at a low level, largely because of the evidence of the large numbers of casualties and of the damage inside Gaza caused during the conflict.

The ICJ ruling indicated that there was sufficient evidence brought of damage and deaths to warrant an intervention of some sort. So, the Court accepted the factual case. 

As regards the evidence of genocidal intent, the ICJ highlighted the evidence brought by South Africa of statements made by some leading figures in the government of Israel, but it did not rule that this evidence indicated that Israel has committed genocide.

  • As for South Africa’s call for the Court to rule on a ceasefire, this was not accepted by the ICJ. In fact, the Court acknowledged the right of Israel to act in self-defence against an enemy known to be a threat to the people of Israel. 

In this regard, it is important to understand that the Court does not have jurisdiction over Hamas. Hamas is not a State, nor is it a signatory of the Genocide Convention, and thus the Court has no jurisdiction over the organisation.

The ICJ mentioned the urgent need for the release of the Israeli hostages. However, because the Court has no jurisdiction over Hamas, it has no power to enforce this appeal.

The ICJ concluded that Israel has an obligation to do something on the humanitarian front to ease the plight of the Palestinians. So, for instance, the Israelis will have to open up the routes for the delivery of humanitarian aid.

In addition, Israel must work at reducing the number of civilian casualties during its military operations and must provide a report on what it has done in this regard within 30 days.

Israel is further tasked with prosecuting individuals who make genocidal statements in public.

It will be interesting to see how Israel responds to the obligations that the ICJ has imposed on it.

Overall, Judge Davis does not believe that the outcome is significantly onerous for Israel – the fact that no cessation of hostilities was ordered is a significant recognition of the right of Israel to continue acting in its self-defence…

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