A RULING THAT ECHOED AROUND THE WORLD
One of the particularities of contemporary conflicts is the ability of civilians to post their destruction in real time on social media. It’s a horror that makes crisp an impotence in international law: it doesn’t respond in real time; on the whole, it offers retrospective justice for atrocity crimes. Which is why the International Court of Justice’s (ICJ’s) order last week for interim and urgent measures to protect the population of Gaza from acts of genocide is so significant.
The order flows from South Africa’s application to the court to have Israel’s actions in Gaza declared genocidal and, more immediately, to put in place provisional measures, primarily to protect noncombatants, pending the outcome of the central genocide case.
That the court put in place six of these measures is not to say that Israel has perpetrated genocide. Rather, that it is plausible that such acts have been carried out, and that there’s plausible evidence of intent
a prerequisite under the genocide convention to do so. On this, the court pointed not only to the mass devastation caused to Palestinians, but also to the unchecked inflammatory statements of politicians, citing, for example, defence minister Yoav Gallant’s reference to “human animals” and the release of “all restraints”.
So it ordered that Israel take all steps in its power to prevent genocide and ensure its military doesn’t commit acts of genocide; that it act against incitement to genocide, enable urgent humanitarian aid into Gaza, prevent the destruction and preserve evidence of potential genocide, and report back to the court in one month.
It’s a big win for South Africa, with the court giving effect to most of the provisions it motivated for. But it didn’t grant South Africa’s primary request for a ceasefire.
That’s surely not so surprising a move. Even in an asymmetric conflict, it’s unlikely just one party would be forced to halt military activity, and Hamas in any event isn’t bound by any order of the court.
Even so, the order may alter the trajectory of the war. For a start, it’s impossible for the interim measures to be met without some form of de-escalation.
Furthermore, the mere whiff of genocide should be enough for any state to dial back its military strategy, given the opprobrium attached to the tag. And for any state backing a plausibly genocidal power to rethink its support lest it later be found complicit in genocide and itself face sanction by the international community.
The immediate question, of course, is whether all this is likely.
Israel has already spun the order as something of a win a recognition of its right to defend itself. And it will in all likelihood argue that its actions already adhere to the court order, so no harm, no foul. But national security minister Itamar BenGvir’s desultory “Hague schmague” tweet does little to inspire confidence in any change in political temperature at least. So much for reining in cabinet ministers.
Still, under pressure from the broader international community, there is a distinct possibility that Israel changes tack and at the least opens the channels for increased humanitarian aid. Only, it is unlikely to admit that is in any way tied to a court order, an analyst told the FM before the ruling; to do so would be to admit it has done something wrong. Prime Minister Benjamin Netanyahu’s insistence that the genocide charge is “outrageous” would seem to underscore the point.
More likely is that his government will attribute such a move to, say, the conflict entering a less intense stage, as it did before the court heard the case. What will be most telling about recognition of the ICJ’s authority is if it’ submits a report to the court in a month s time, and how the content of that report is framed.
In any event, de-escalation and increased aid flows are only a good thing.
Of course, there are the broader issues at play: will countries supporting Israel militarily, financially and diplomatically bring pressure to bear or rein in their support? The US, with its influential Jewish lobby, is particularly powerful on this count, supplying $3.8bn a year to Israel in military aid. But that it and the UK still insist that the claim of genocide is “unfounded” and “provocative” suggests they may do little more than insist on increased humanitarian aid, as they previously have.
While Algeria has already requested a UN Security Council meeting, any resolution around enforcement is likely to come up against a US veto at the least.
That doesn’t mean all is lost. The finding on provisional measures is a legal watershed in demanding accountability in this terrible, intractable conflict. The international community has until now handled Israel with kid gloves due to its history, rooted in the horror of the Holocaust. But an order of this magnitude may herald a sea change, and offer the community of states an opportunity to bolster the rules-based international order.
It could be a diplomatic watershed too, in opening space for the kind of longterm negotiations that are impossible in the mist of war.
But of perhaps more immediate import is that it could prevent an atrocity crime “the crime of all crimes from playing out in real time, in full view of the world. For that, South Africa deserves full credit.