The International Court of Justice in The Hague partially accepted South Africa’s request for temporary injunctions against Israel, in which the court ruled that Israel must report to the court within one month the measures it is taking to prevent genocide, as well as provide basic services and humanitarian aid to the Palestinians in the Strip.
It was also determined that Israel should stop the “incitement to genocide”. However, the court did not accept the request to demand that Israel stop the fighting.
Most of the decisions were made by a majority of 15 judges against 2, with former Supreme Court President Aharon Barak being among the two who dissented. The decision that was made is in line with what Israel expected to happen.
The president of the court, Joan Donahue, began by acknowledging the fact that Israel’s military operation began after the Hamas attack on October 7th, and further stated that she is concerned about the fate of the abductees and calls for their immediate release. However, during the decision, she stated that the court is troubled by the continued loss of life occurring in Gaza, and also quoted Israeli speakers as well as many of the claims made in the South African lawsuit.
It should be noted that South Africa knew in advance that its chances of succeeding in the principle claim that Israel is committing genocide – which is still expected to be clarified, is impossible, since a high standard of proof is required. Therefore, South Africa took advantage of the low standard of proof required at this stage, for the purpose of issuing temporary orders. Israeli officials describe that this is an abuse of the court’s mechanism.
As I recall, the court’s decision comes after the discussion of the temporary remedies requested by South Africa as part of its lawsuit against Israel, in which it claimed that the IDF is committing acts in Gaza that amount to genocide. Two weeks ago, the court convened for two days to hear South Africa’s claims and its answers The judges heard claims that Israel went to war after the October 7 massacre and violated its international obligations under the Convention Against Genocide.
In an article published yesterday in the New York Times, it was claimed that Israel declassified more than thirty political and military documents for the purpose of the court hearing, in order to help it prove the claims that it is fighting in accordance with the rules of international law. Among the documents are, it was announced, the summaries of the cabinet discussions from the end of October, in which Prime Minister Netanyahu ordered to send supplies of aid, fuel and water to Gaza.
The 15 judges in The Hague, who were joined ad hoc by a South African judge and former Supreme Court President Aharon Barak, are not all lawyers. They are elected by the UN General Assembly on the recommendation of the Security Council from different geographical areas, and some of them have previously served as diplomats. As a result, the considerations that led to their decision are not necessarily purely legal.
It is important to remember that the court has no ability to force the decision on Israel. It is likely that in such a case the ruling will be discussed in the UN Security Council, and will make it difficult for Israel in other international processes as well.
