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What the ICJ judgment on Israel means and implies

The world’s court has taken a small step in the right direction, although it stopped short of calling a spade a spade

What the ICJ judgment on Israel means and implies
[Source photo: ICJ]

After reading the International Court of Justice’s (ICJ’s) judgement  I am reminded of the idiom “a curate’s egg”. In 1895, the Punch magazine carried a cartoon about a young priest having breakfast with a bishop. The bishop said that the egg was bad. The nervous priest responded: “Oh no, my Lord!..parts of it are excellent.”

In the case brought by South Africa against Israel to stop its genocidal war in Gaza, the ICJ has taken a small step in the right direction, instead of delivering justice without fear or favor. It wants to be ‘politically correct’ and refrained from calling a spade a spade.

The background

South Africa approached the ICJ on 29 November 2023 with a request to order Israel to take  “provisional measures”, without waiting for a definitive determination of whether Israel is committing genocide. South Africa asked for “provisional measures” because the ICJ is likely to take a long time to determine whether genocide has been committed.

This was a smart move.

South Africa did not get full support from the Global South. 

The 57-member Organization of Islamic Countries (OIC) and the 22-member Arab League supported South Africa’s case. 

The European Union was divided, with Germany supporting Israel and Belgium supporting South Africa.

The United States claimed that it was engaged in attending to the matter diplomatically and the ICJ’s dealing with it is an avoidable “distraction.”

BRICS as a body did not support South Africa. Among its members, India has been taking a strong pro-Israeli line, with occasional corrections. China with its sins in Xinjiang and Russia with its violations of the laws of war in Ukraine are allergic to any intervention by the ICJ.

Only Brazil explicitly supported South Africa.

The ICJ order

The ICJ consists of 17 judges, including one each proposed by the two disputant statesSouth Africa and Israel.

The world’s court proceeded in a tortuous fashion. But it cannot be blamed for this as it had to first determine that it has jurisdiction. After determining that it had jurisdiction, the ICJ rejected Israel’s prayer to dismiss the case.

It then determined that there was a case, prima facie, for it to order “provisional measures” to be complied with by Israel.

The language used by the ICJ here is rather curious. To start with, it raises a question: Do the Palestinians have the rights that South Africa claims that Israel has violated? 

The court answers that the rights are “plausible”. 

This is indeed strange and even bizarre.

The ICJ does recognize the Palestinians as a “group” entitled to protection under Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which reads:

“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group; 
(b) Causing serious bodily or mental harm to members of the group; 
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 
(d) Imposing measures intended to prevent births within the group; 
(e) Forcibly transferring children of the group to another group.”

The Universal Declaration of Human Rights is part of international law. Article 3 reads:

Everyone has the right to life, liberty, and the security of person.  

The ICJ has in its judgment referred to the UN’s finding that 25,700 Palestinians had been killed, and  63,000 injured. It follows that the adjective “plausible” is wrong.

What are the ‘provisional measures’?

The provisional measures include:

1) Israel must ensure with immediate effect that its military forces do not commit any of the above-described acts.

The ‘above-described acts’ refer to those in Article 2. The ICJ implies that Israel had been committing the said acts. But it avoids saying that.

2) Israel must prevent and punish any public incitement to commit genocide.

Since the court has referred to such statements made by Israeli defence minister Yoav Gallant and President Issac Herzog, the meaning is clear.

3) Israel must take immediate and effective measures to enable the provision of basic needs.

4) Israel must ensure that evidence about alleged acts in violation of Articles 2 and 3 of the Convention is preserved.

5) Israel must submit a report within a month of actions taken in compliance with the order.

South Africa had asked for a report within a week. Giving one month is unjustifiable as about 200 human beings in Gaza are being killed daily.

6) The ICJ ordered the immediate and unconditional release of all hostages taken on 7 October.

Israel has imprisoned thousands of Palestinians under the so-called ‘administrative measures’ without charging them with any offense. Are they not hostages?

How the world reacted

As expected, Israeli Prime Minister Benjamin Netanyahu rejected the ICJ’s verdict. Netanyahu said the genocide claim against Israel is ‘outrageous’ and Israel would continue to ‘defend itself.’

Washington sententiously claimed, through Sabrina Singh, deputy press secretary in the Department of Defense, and John Kirby, coordinator for strategic communications at the National Security Council, that it had been diplomatically engaged in getting Tel Aviv to do precisely what the court has decreed it must do.

Understandably, South Africa has expressed measured satisfaction.

India and many others have yet to react.

What next? 

Though Netanyahu has expressed outrage at the ICJ ruling, Israel is likely to cooperate and send a report within a month.

What might happen within a month? If South Africa or any other country brings up the matter in the UN Security Council, Washington might  justify its use of veto  by pointing out that we all should wait for Israel’s compliance report.

It is not unlikely that the ongoing mediation talks initiated by Qatar and Egypt for a two-month ceasefire, combined with the progressive release of hostages held in Gaza and Israel, might get some impetus from the ICJ judgment. 

The only fly in the ointment is that once there is a long ceasefire, Netanyahu’s political mortality might be in discussion. 

Who can look into the seeds of time and say which grains will grow and which will not, as Shakespeare put it in Macbeth? Only the witches can do it.

The only painful certainty is that the genocidal war by Israel will continue, for the time being at least, and the moral bankruptcy of the world leaders will continue to sustain it.


KP Fabian is a diplomat who served in the Indian Foreign Service between 1964 and 2000. He is currently a distinguished fellow at the Symbiosis Law School in Pune. More

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