Analysing the ICJ interim orders

South Africa’s genocide claim against Israel in the International Court of Justice (ICJ) is yet another Kafkaesque farce in the pernicious lawfare relentlessly being waged against Israel with the connivance of malevolent actors and useful idiots.

It is beyond satire: South Africa has a long-standing cosy relationship with Hamas. Immediately after its October 7 massacre and rape of 1200 people and kidnapping of 240, SA’s Foreign Minister, Naledi Pandor, telephoned Hamas leader Ismail Haniyeh to express SA’s support. And after Hamas publicly promised that “October 7 was just a rehearsal” and it will happen “again and again until Israel is annihilated”, SA, on December 5, honoured a Hamas delegation with pride of place, and the laying of a wreath, at the official 10th anniversary of Nelson Mandela’s death.

Then, after a diplomatic visit to Iran in December, SA instituted proceedings against Israel on the grounds that it, as a party to the Genocide Convention, has an interest in ensuring that Israel does not breach that convention by committing genocide against the Palestinians in Gaza.

But the Genocide Convention makes the ICJ’s jurisdiction conditional on the existence of a dispute relating to the interpretation, application or fulfilment of the Convention. A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between parties. The dispute must be genuine. The two sides must hold clearly opposite views concerning the question of the performance or non-performance of certain international obligations.

The SA dispute was bogus. SA cares not a fig about the Genocide Convention; it has an intimate relationship with entities – like Hamas – that openly call for genocide. As Judge Aharon Barak said with no doubt restrained understatement, “It is doubtful whether South Africa brought this dispute in good faith.”

Nonetheless, the ICJ held that at the present stage of the proceedings, the question is simply whether it appears that the acts complained of by SA are capable of falling within the scope of the Convention, and it held that the fact that SA and Israel appear to hold opposite views as to whether certain acts allegedly committed by Israel amount to violations of its obligations was sufficient at this stage to establish prima facie the existence of a dispute between them relating to the interpretation, application or fulfilment of the Convention, thus conferring jurisdiction on the court. Thus it held that it could not accede to Israel’s request that the case be removed from the General List.

In the light of drivel emanating from malevolent actors (e.g. the Iranian Foreign Minister wrote apropos the judgement, “Today, the authorities of the fake Israeli regime … must be brought to justice immediately for committing genocide and unprecedented war crimes against the Palestinians”) it is important to note that the ICJ emphasised that at the present stage, the court was not required to ascertain whether any violations of Israel’s obligations under the Convention occurred. Its task was to establish whether the acts complained of by SA appear to be capable of falling within the Convention.

The ICJ did not make any finding that Israel in any way breached the Convention. Nor, contrary to statements by many commentators, did it find that there was a plausible basis for contending that it did so.

SA requested the ICJ make provisional orders for the preservation of the respective rights claimed by the parties, pending its decision on the merits – which may occur only in many years’ time. The main provisional order SA sought was an order for the immediate suspension by Israel of its military operations in Gaza.

The consequence of that order – had it been granted – would have been that Israel would have been compelled to cease, while Hamas would have been free to continue to fire. And Israel would have been prevented from seeking, by military means, to rescue the hostages.

As Judge Barak wrote, “Had the court granted South Africa’s request to put an immediate end to the military operation in Gaza, Israel would have been left defenceless in the face of a brutal assault, unable to fulfil its most basic duties vis-à-vis its citizens. It would have amounted to tying both of Israel’s hands, denying it the ability to fight even in accordance with international law. Meanwhile, the hands of Hamas would have been free to continue harming Israelis and Palestinians alike.”

By a vote of 16 to 2, the ICJ made a number of provisional orders which, in and of themselves, are unlikely to cause any problems for Israel of a practical nature, but which are nonetheless perverse in that they potentially convey the false and defamatory imputation that Israel is not complying with the Convention.

Those orders were, in effect, that Israel take all measures within its power to prevent the commission of genocidal acts, and that it take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of genocide against members of the Palestinian group in Gaza. These orders in fact reflect a party’s obligations under the Convention in any event, and were thus entirely unnecessary. As Judge Barak said, the court “merely restates obligations that Israel already has under Articles I and II of the Genocide Convention”.

“The court has made explicit what is already implicit in light of Israel’s existing obligations under the Convention.”

They were voted against by Judge Sebutinde from Uganda and Judge ad hoc Barak from Israel.

A potentially problematic – and perverse – provisional order is that Israel must submit a report to the ICJ on all measures taken to give effect to the provisional order within one month, and the report shall then be communicated to South Africa, which shall be given the opportunity to submit to the court its comments thereon. This seems to give the court – and SA! – the right and power to comment on, and potentially seek further orders in respect of, Israel’s conduct of the war. Judge Sebutinde and Barak voted against this order.

Bizarrely, Judge Barak voted in favour of the following two provisional orders which Judge Sebutinde voted against (in my view, correctly): first, that Israel must take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in Gaza; and second, that Israel must take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in Gaza.

Given that the statements cited by the majority in their judgement in relation to the alleged public incitement to genocide were statements which could not rationally be construed, in context, as incitement to genocide – a statement by Yoav Gallant on October 9 (“We are fighting human animals. This is the ISIS of Gaza. … There will be no Hamas) and Isaac Herzog on October 12 (which expressly said, “We are working, operating militarily according to rules of international law…”) and Israel Katz, then Minister of Energy and Infrastructure (“We will fight the terrorist organisation Hamas and destroy it. All the civilian population in Gaza is ordered to leave immediately.”).

The order is likely to have a chilling effect on freedom of speech. Judge Barak voted in favour of it “in the hope that the measure will help to decrease tensions and discourage damaging rhetoric”. That reason is unprincipled.

In another unprincipled vote, Judge Barak voted in favour of the order that Israel take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in Gaza because “guided by [his] deep humanitarian convictions and the hope that this will alleviate the consequences of the armed conflict for the most vulnerable … the court reminds Israel of essential international obligations, which are already present in the DNA of the Israeli military. This measure will ensure that Israel continues to enable the delivery of humanitarian aid to Gaza…”

The most compelling and well-reasoned judgement was that of Judge Sebutinde from Uganda who voted against all of the provisional orders.

Finally, in the very last sentence of the last paragraph of the reasons the ICJ said “… that all parties to the conflict in the Gaza Strip are bound by international humanitarian law”.

“It is gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release.”

Judge Sebutinde went further by perspicaciously drawing attention to the unctuous hypocrisy of SA: “SA emphasised that both parties to these proceedings have a duty to act in accordance with their obligations under the Genocide Convention … leaving one wondering what positive contribution [SA] could make towards defusing the ongoing conflict there. During the oral proceedings … it was brought to the attention of the Court that SA … have enjoyed and continue to enjoy a cordial relationship with the leadership of Hamas. If that is the case, then one would encourage South Africa as a party to these proceedings and to the Genocide Convention, to use whatever influence they might wield, to try and persuade Hamas to immediately and unconditionally release the remaining hostages, as a good will gesture. I have no doubt that such a gesture of good will would go a very long way in defusing the current conflict in Gaza.”

Mark Friedgut is a Sydney barrister.

Opinion