The judges of the International Court of Justice are taking an increasingly harsh stance towards Israel in the genocide case brought by South Africa. Last Thursday, the court ruled that Israel must do more to improve the humanitarian situation in Gaza. The underlying documents show that seven of the sixteen judges would have wanted to go further. They say an immediate ceasefire is necessary.
If Israel attacks Rafah and the situation in Gaza continues to deteriorate, it is very possible that one or more judges will change their minds. In that case, if South Africa again requests additional measures, Israel will receive the binding order from the court to immediately silence the guns. The question is of course whether Israel will comply with this.
About the author
Rob Vreeken is a correspondent in Istanbul for de Volkskrant. He writes about Turkey, Iran, Israel and the Palestinian territories. Previously, he specialized in foreign affairs in human rights and the Middle East.
When the court in The Hague issued its first ruling in the genocide case on January 26, it did not yet call for a ceasefire. That was one of the ‘interim measures’ requested by South Africa (and the most far-reaching), but the judges did not agree. Israel had to make it possible for humanitarian aid to reach the Gaza Strip. Israel was also ordered to prevent its army from committing acts that violate the Genocide Convention.
The importance of the ruling was also that the United Nations court took up the case at all. It may take a long time, possibly even a few years, before the judges reach a final verdict on the question of whether Israel is guilty of genocide. All the while, Israel will be known as a suspect in a genocide case.
As the humanitarian situation in Gaza continued to deteriorate after January 26, South Africa requested additional provisional measures on February 12. The court did not consider this necessary at the time, but when South Africa submitted such a request again on March 6, it was granted three weeks later.
Famine
The court finds that the situation in Gaza has changed to such an extent that the measures of January 26 are no longer sufficient. “The court finds that the Palestinians in Gaza are no longer only at risk of famine, as previously stated, but that the famine has already begun.” Further deterioration ‘is very possible’.
In Thursday’s decision, the court still does not call for a ceasefire. However, the humanitarian appeal to Israel is expressed more forcefully. Aid must now be ‘ensured’, not just ‘made possible’. The decision was taken by the judges with fifteen votes in favor and one against. The dissenting vote came from the Israeli judge assigned to the court ad hoc for the case, Aharon Barak.
The ruling does not say anything about the conflict of opinions within the judicial body. Some of this becomes clear in the ‘statements’ that individual judges (as is customary at the International Court of Justice) have attached as appendices to the judgment. Closer examination of this reveals a remarkable picture: the judges are unmistakably shifting, and in the direction desired by South Africa.
Six of the sixteen judges expressly express their regret that the court has not decided to impose an immediate ceasefire on the parties. For example, Australian judge Hilary Charlesworth states that ‘the only way to prevent further destruction of the Palestinian population in the Gaza Strip is to stop the military operation’.
Chair
After January 26, none of those six issued such a statement. The only one who did that at the time was the Indian judge Dalveer Bhandari. He stated that in his view ‘all fighting must stop immediately’. He did not issue a new statement last week, but undoubtedly his views have only been strengthened in recent weeks.
Including Bhandari, the number of ceasefire advocates is seven, almost half. In that light, the statement that an eighth judge, Nawaf Salam, added last week becomes interesting. The court’s new measures, he writes, can only be effective if all parties respond to the Security Council’s March 25 call for an “immediate ceasefire for the month of Ramadan.”
What does this say? Does Salam think the guns should be silent? By the looks of it, yes. But does he also think that the International Court of Justice should impose this mandatory? That’s not literally what it says. Ambiguity abounds.
Salam probably did not vote for a call for a ceasefire. If he had done so, eight of the sixteen judges would have been in favor of it. And then Salam’s vote would have been decisive, because he is chairman of the court. It is of course not known what moved him. The Lebanese judge has traditionally been known as a critic of Israel’s policy in the occupied territories.
In any case, all this shows how much the judges have changed their minds over the weeks and how much the court’s opinion is shifting. It does not seem to take much to give the court the final push, a push that can come from Israel itself: if the attack is launched on Rafah, then ‘all signals of genocide will be in the red’. in the words of Somali judge Abdulqawi Ahmed Yusuf.
When asked, former professor of international law Harry Post agrees with the conclusions of de Volkskrant. ‘It seems like a plausible story to me. The judges are indeed shifting.’
Uncharted waters
South Africa is free to make a further application for additional interim measures and the court is free to do so if necessary to take such measures on its own initiative due to changed circumstances, even though it is unusual for the court to make its own orders adjusts again after a short time. In any case, the court is navigating uncharted waters. Never before has the rather sedate institution been so much in the line of fire of a major international conflict.
Closer examination of the documents provides another interesting insight. The fact that the court has not (yet) decided on a ceasefire is probably because such an order is normally addressed to two parties. This is not possible now; Hamas is not formally a party to the genocide case.
The ruling of January 26 does not say anything about this. Observers then concluded that the judges thought a ceasefire had gone ‘too far’ or was ‘not yet an issue’. The documents show that the impediment may have been mainly legal and technical in nature. Various judges now want to overcome this objection of one-sidedness, given the seriousness of the case. That, says Judge Charlesworth, may not completely eliminate the risks for the Palestinian population, but at least ‘mitigate’ it.
