Media Spin Versus a Careful Reading of ICJ Orders

 

The International Court of Justice (ICJ) on Friday 26^th January 2023 delivered orders related to South Africa’s complaint concerning the ongoing Hamas-Israeli war in Gaza. It is clear from the ICJ orders that the risk of Genocide being committed against Palestinians living in Gaza is a plausible one and merits further investigation. The ICJ consequently ruled that Israel must take action to prevent such an outcome. This is a devasting blow to the Israeli State and no amount of spin can detract from this. We need to carefully read this Order to understand how this is the situation.

It is clear from this that the ICJ has ordered the Israeli State to stop killing Palestinians. The need for protection is urgently needed if the serious risk of the Israeli State committing genocide is to be avoided. The ICJ has effectively called for the immediate halting of Israeli military operations. It is these operations that are causing the death and mental trauma of Palestinian civilians in the Gaza Strip.

The ICJ clearly cited evidence from the UN secretary General, the World Health Organisation (WHO) and the immoral language used by Israeli officials all pointing to plausible genocidal intent. South Africa has a case and Israel has a case to answer in respect to the violation of the Convention to Prevent Genocide. A partial victory for South Africa that is nonetheless a substantive one.

Spin doctors in the Western mainstream media point to the lack of a cease fire order and the preliminary nature of the ICJs ruling as a disappointment for South Africa. Rushing to such a conclusion is premature. One of the above-mentioned spin masters is Mr. John Lyons writing for the Government funded Australian Broadcasting Corporation (ABC) who said:

"It's a judgement that both sides – Israel and South Africa – can cherry pick.... Neither side has won comprehensively and both sides are claiming victory.... The judgement by the International Court of Justice (ICJ) was not a knockout victory for either side."

These words of Mr. Lyons represent media spin, the splitting of hairs and moral ambiguity that needs to be challenged. Mr. Lyons puts forward misleading words and logic to fudge the significance of the ICJ orders vis-à-vis South Africa’s complaint. He writes:

".... South Africa wanted what amounted to an "injunction" on the war. If the ICJ had found a prima facie case of genocide, it could have ordered such an injunction, which would have amounted to a cease fire."

We are asked to imagine that the injunction was not ordered as the ICJ has not found a prima facie case of genocide. As a result, South Africa did not get what it wanted. This reasoning is misleading.

President Donahue of the ICJ judicial bench conducting the Case outlined in the opening paragraph of the Order the two parts to South Africa’s application.

The first part reminds us that South Africa, on December 29, 2023 applied to institute proceedings “…. concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) in relation to Palestinians in the Gaza Strip.”

The second part of the opening paragraph relates to how South Africa asked “…. the Court to indicate provisional measures in order to ‘protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention’ and ‘to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide’”.

This summarises South Africa’s request for preliminary measures to prevent further harm to Palestinians and ensure that Israel, as a signatory to the Genocide Convention meets its obligations under this convention.  

In the first point the Court says that South Africa has filed an application to institute proceedings concerning Israels alleged violations of the Genocide Convention. The second point is a separate part of the Application that “contained a request” for provisional measures as a matter of “extreme urgency”.

Regarding South Africa’s Application and specific request, the Court states that “…. pending the Court’s determination of this case on the merits….” it lists “….  provisional measures in relation to the Palestinian people as a group protected by the Genocide Convention”

Genocide has to be proven in ongoing proceedings of the case. So, for the ICJ to call for a cease fire because of genocide will pre-empt the future outcome of the case associated with South Africa’s application to institute proceedings against Israel.

Another misleading aspect of Mr. Lyons’s analysis is that he does not explore other explanations for the lack of a general cease fire ruling in the ICJ Order.

As reported in the Pearls and Irritations Journal the Moon of Alabama blog offers one explanation as to why the ICJ did not order a general cease fire:

“The court could not order a general cease fire because its jurisdiction covers only one of the waring parties. An order for a general cease fire would require that all parties of a conflict are nation states and have signed the Genocide Convention. Hamas however is not a state and is not a signatory of the Genocide Convention and thus not under the ICJ’s jurisdiction.”

Katherine Hearst, in the Middle East Eye writes about another explanation:

“According to experts, the prospect of the court demanding a cease fire was always unlikely due to Israel’s contested right to self defence in an occupied territory…. The term ‘self-defence’ was notably missing from the ruling, with measures focused on addressing the deteriorating situation on the ground in Gaza.”

According to Ms. Hearst a reason for the lack of declaration for a general cease fire revolves around Israels stated right to defend itself. She quotes Juliette McIntyre, a lecturer in law at the University of South Australia as pointing out:

“The court is saying we can't get into the question of the full extent of [Israel’s] rights of self-defence. So we are not going to say anything about a cease fire,"

Mr. Lyons in his analysis appears to downplay the momentous import of the ICJ’s six “binding” provisional measures or rulings making up its Order. He does not tell his readers the vote count associated with each ruling delivered by bench President Donoghue.

The overwhelming majority of judges, almost unanimous ruling of the 17 judges concluded, based on the evidence that Isarael should desist from killing or eradication of “groups”. Rulings 1, 2, 3, 4 , and 6 provide interesting takeaways.

Ruling 1 (15 in favour and 2 against)

This ruling orders Israel to conform to the “obligations” under the Genocide Convention. These obligations demand that the State of Israel “…. take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention,”. These measures are stated as follows:

(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; and

(d) imposing measures intended to prevent births within the group;

The Ruling is referencing the killing of members of the group (in this case Palestinians), inflicting serious bodily or mental harm and deliberately inflicting on the group harm calculated to cause harm.

Courts don’t order such measures like this unless there is concern for harm to be done to a group based on evidence provided to them. According to the OCHA as of January 28, 2023 26,422 people were dead and 65,087 people maimed and destruction of more of the necessities needed to support lives. The fact that the Court accepts that Palestinians are in danger is significant and a victory for South Africa. South Africa would not be cherry picking if it were to be pleased with this ruling.

Getting back to Mr. Lyons’s analysis and misleading assertion concerning the lack of a cease fire. To become operational Ruling 1 requires a full and permanent cessation of Israel’s activities in Gaza which are harming the Palestinians in Gaza. Given the background of the facts cited by the ICJ, it is apparent that the Court was not convinced by the Israeli State’s assurances that they would do all they can to prevent harm to Palestinian non-combatants. This is reinforced by Ruling 2.

Ruling 2 (15 in favour and 2 against)

“The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above….”

This measure is very clear; Israel has been placed on notice as of January 26, 2024. South Africa would be justified in feeling that it has won a victory with this ruling and should not be accused of receiving a consolation prize in thinking this. The Court then goes on to Ruling 3.

Ruling 3 (16 in favour and 1 against)

“The State of Israel shall 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 the Gaza Strip”

This ruling calls for the prevention and punishment of public incitement for genocide. Israel is bound to silence those government members and those outside government articulating sentiments that could be construed as genocidal. This is the first mention of the concept of genocide.  However, this word is specified in the context as something the “incitement” of which is to be curtailed and punished.

Previously in the ICJ proceedings President Donaghue referenced instances of genocidal comments made by Israeli government and military actors. This goes to the question of intent and is making clear that there is evidence pointing to the intent of genocide. If genocide happens by intent, then the Court has jurisdiction. This ruling constitutes another win for South Africa that places another responsibility for Israel to fulfill.

Ruling 4 (16 in favour and 1 against)

“The State of Israel shall 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 the Gaza Strip;”

Here the ICJ is putting Israel on notice regarding the need to deliver to the Palestinians needed aid. The “effective measures” depend very much on the degree on the implementation, by Israel of the measure mandated by rulings 1 and 2. Here we have an international judicial body in an international forum acknowledging the fact that Palestinians urgently need humanitarian aid because of the war conditions imposed on them.

Mr. Lyons’s places significance on Ruling 4 regarding the measure that Israel must make towards ensuring the humanitarian aid writing:

“The most concrete of the provisional measures imposed by the ICJ relates to humanitarian aid…. The ICJ has made this one of its main provisions.”

This is another example of spin as it downplays the significance of the other rulings. As if all the other rulings have a lesser import. He does not explain why he thinks the Court made this its main provision. One would have thought that the effective implementation of Ruling 4 would hinge on at least Rulings 1 and 2 being achieved resulting in a reduction of the “…. adverse conditions of life faced by the Palestinians in the Gaza Strip.”

Ruling 5 (15 in favour and 2 against)

“The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip;”

Clearly, the ICJ has taken the allegations put forward by South Africa seriously. In this sense it does not want evidence destroyed and is mandating that such evidence is preserved.  This evidence would form a basis for the future ongoing application South Africa has made against Israel under the Genocide Convention.

Ruling 6 (15 in favour and 2 against)

Israel has been ordered to submit a report on the measures it has been ordered to take. The deadline for the report; one month from the date of the order is significant and bears witness to the urgency of the matter.  

In his analysis Mr. Lyons admits that things don’t look good for Israel. However, he omits reference to what the ICJ wrote in its Summary. This document, under the section entitled II. PRIMA FACIE JURISDICTION makes clear the various aspects of the case supporting South Africa’s complaint and show that Israel’s feeling of victory on this matter is questionable.

This ruling is a significant defeat for the Israeli. Israel contended that the ICJ Court does not have jurisdiction.  The ICJ did not see it this way.

The Court has referenced Article IX of the Genocide Convention. This article “…. makes the Court’s jurisdiction conditional on the existence of a dispute relating to the interpretation, application or fulfilment of the Convention.”

Furthermore, the Court relates that it has taken note of the fact that “…. South Africa issued public statements in various multilateral and bilateral settings….”. These statements concerned “…. the nature, scope and extent of Israel’s military operations in Gaza, Israel’s actions….” The Court noted that South Africa viewed these actions as amounting to “…. to violations of its obligations under the Genocide Convention. “

The Court notes Israel’s position pointing out “…. that Israel dismissed any accusation of genocide in the context of the conflict in Gaza….”

The Court also observes that South Africa and Israel hold antithetical perspectives “…. as to whether certain acts or omissions allegedly committed by Israel in Gaza amount to violations by the latter of its obligations under the Genocide Convention.”

Consequently, given the “opposite views” regarding the nature of Israel’s actions the Court has ruled that this is “…. sufficient at this stage to establish prima facie the existence of a dispute between the Parties relating to the interpretation, application or fulfilment of the Genocide Convention.”

Having established the Court’s Jurisdiction, the Court reiterates “…. that South Africa considers Israel to be responsible for committing genocide in Gaza and for failing to prevent and punish genocidal acts.”  The Court goes further by pointing out South Africa’s assertion that Israel is transgressing other responsibilities under the Genocide Convention such as “…. conspiracy to commit genocide, direct and public incitement to genocide, attempted genocide and complicity in genocide”.

After reiterating South Africa’s case in these terms, the Court spells out its perspective on this case by saying that “…. at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention. “

Cognizant of the salutary effects, as a remedy to spin a careful reading of the Court Order and the points made in it require further analysis. The Court handed down the following conclusion:

“In light of the foregoing, the Court concludes that, prima facie, it has jurisdiction pursuant to Article IX of the Genocide Convention to entertain the case and that, consequently, it cannot accede to Israel’s request that the case be removed from the General List.”

This is a disappointment for Israel and a win for South Africa. The case was not thrown out and investigations will continue.

In Section IV. THE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE LINK BETWEEN SUCH RIGHTS AND THE MEASURES REQUESTED the Court addresses the key point arising from South Africa’s claims concerning Israels actions in the Gaza. The Court makes the crucial conclusion “…. that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention.”

After stating this the Court then communicated its ruling in the section entitled: VI. CONCLUSION AND MEASURES TO BE ADOPTED

“The Court considers that, with regard to the situation described above, Israel must, in accordance with its obligations under the Genocide Convention, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention,”

The Court then goes onto reiterate the measures that Israel must comply with. Israel must prevent:

(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; and (d) imposing measures intended to prevent births within the group.

Furthermore, Israil 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 the Gaza Strip.

·         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 the Gaza Strip.

·         Take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Genocide Convention against members of the Palestinian group in the Gaza Strip.

·         Must submit a report to the Court on all measures taken to give effect to this Order within one month, as from the date of this Order. The report so provided shall then be communicated to South Africa, which shall be given the opportunity to submit to the Court its comments thereon.

So just because the Court did not rule for a cease fire does not mean that it did not regard the complaints of South Africa to be plausible or without basis. It overwhelmingly ruled in favour of many of the points made by South Africa. So South Africa has still achieved many of its goals which explains its optimism in terms of the outcome.

As an interim ruling based on a plausible case means the majority of judges out of the 17 believe that South Africa’s case, that Israel may be committing war crimes is plausible and delivers strong order to take action to prevent genocide. The ruling dictates the way Israel is fighting the war in Gaza needs to change. No matter how Mr. Lyons's spins it this was a decisive decision by a majority of the Court.

Chatham house puts the truth of the matter clearly and without much spin making plain that Israel’s claim of "victory" and Mr. Lyons’s spin misses the point.

"The Court also decided that South Africa prima facie has ‘standing’ to bring the case, that is, it has the right to do so under the Genocide Convention, recalling that the obligations under the Convention are erga omnes: they concern the international community as a whole."

Even NBC News articulates the view that Israel is in trouble by writing:

"It was not the full denunciation desired by the Palestinians, or the flat rejection called for by Israel. But the judges effectively ruled that when it comes to accusations of genocide there is a case to be heard, and immediate action that Israel must take.”

NBC quotes a specialist in International Law:

"William Schabas, a professor of international law at England’s Middlesex University who specializes in war crimes studies, called the decision ‘a remarkable achievement for South Africa,’ which brought the case."

South Africa has obtained a comprehensive victory in having Israel put on notice by the ICJ. Israel although not knocked out continues its operations and its politicians defiantly trumpet out their inflammatory remarks about the future of Gaza within greater Israel. The Israeli State may claim the lack of a cease fire a victory; but what kind of victory is that? There is no way that this can be construed as a moral victory. The Israeli State defiantly vows to continue on the path it has set out on. The ICJ orders will hold Israel accountable for its actions going forward.

A careful reading of the Order and associated rulings shows that Israel did not get off lightly. Israel has lost its patina of moral authority. Unfortunately, they are not backing off militarily; the fruits of which is potential genocide and a broader conflagration in the Middle East.