The ICJ ruling on Gaza: Breakthroughs and shortcomings

The International Court of Justice (ICJ) issued an interim ruling on January 26 imposing provisional measures on Israel to prevent acts of genocide against Palestinians in Gaza. Once the court establishes that the conditions for issuing an "order of interim measures" are met and subsequently issues it, that would constitute a concession: it would be "plausible" to consider that a genocide is taking place against the Palestinian people in Gaza.

The subject matter of the order itself indicates the ICJ’s alignment with its previous decisions, particularly in the language of the recent ruling on the case filed by the Republic of The Gambia against the Republic of the Union of Myanmar (Burma) regarding the genocide against the Rohingya people. It can also be observed in the two orders issued in 1993 against the former Yugoslavia for crimes committed in Bosnia and Herzegovina.

However, the court paid no heed to South Africa’s main request that it order Israel to "immediately suspend its military operations in and against Gaza.”

The omission was met with disappointment in Palestine and by those advocating for international justice and the rights of the Global South, particularly the Palestinian people, raising concerns about double standards in international law and its institutions. The failure to demand an immediate cessation of military operations has also allowed Israel’s supporters to be optimistic and interpret the ruling in favor of the continuation of its military operations. The New York Times, for example, reported the decision as “UN court declines to issue ceasefire.”

How do we interpret this ruling, then? What is new and unprecedented in its details regarding Israel and Palestine, and what conforms to its past rulings? 

ICJ in line with previous rulings

First of all, it is not within the international court’s mandate to demand a political settlement by making "ceasefire" agreements. The subject of the case is genocide, meaning that the court is only authorized to order the party likely in violation of the terms of the Convention on the Prevention and Punishment of the Crime of Genocide to stop all actions that may constitute this crime. That is why, rather than demanding a ceasefire, South Africa is asking that Israel be ordered to "immediately suspend its military operations in and against Gaza."

And yet, the court did not explicitly rule for an immediate halt of all military operations in and against Gaza, a decision positively received by the Occupation’s supporters and its ongoing war on the strip.

How do we understand this?

The ICJ’s order conformed with its previous rulings in refraining from issuing a decision to cease military operations. The case filed by Gambia against Myanmar did not originally demand the court explicitly order the cessation of all military operations, perhaps because there was no judicial precedent for such a ruling. Despite the unprecedented accessibility of evidence, including evidence of "intent," the main element in proving genocide, the court did not consider this sufficient to depart from its precedent and did not take into account the particular gravity of the situation in Gaza or the unprecedented scale of criminality and incitement in Israel's operations against it, which justifies a greater departure from the course previously taken by the ICJ in the cases of Myanmar and Yugoslavia.

South Africa — perhaps because of the preceding ruling issued against Russia in 2022 — clearly requested an order to immediately cease military operations in and against Gaza. But the Ukraine case against Russia is a different kind of precedent.

Although the ICJ obliged Russia to cease its military operations, Ukraine did not accuse Russia of committing genocide in the first place. Rather, the Ukrainian suit is based on the claim that Russia's attack on its territory was carried out under a Russian allegation of the perpetration of genocide on Ukrainian territory. The Russians discursively presented their intervention as a "humanitarian intervention" warranted by their obligation to prevent genocide under the provisions of the Genocide Convention. Russia’s case thus does not pertain to the perpetration of genocide, but to the interpretation of the Genocide Convention. Ukraine wanted the ICJ to recognize that the Russian military intervention in its territory is based on an erroneous interpretation of the Genocide Convention and that it is therefore an unlawful use of force under international law. In other words, once the Russian legal justification of its use of force against another sovereign State is rejected, what we are left with is a Russian unlawful use of force against the sovereign Ukranian State, namely, an "act of aggression" (in violation of the prohibition on the use of force under article 2 of paragraph 4 of the UN Charter). Once the ICJ considered the Ukrainian claim about Russia's abuse of the Genocide Convention "plausible", it ordered Russia to cease all its military operations as - inherently - part of an unlawful use of force.

The Ukranian case therefore is different. For that reason, perhaps, we arguably should not compare it to the South Africa Palestine case. However, the Ukranian was based on extremely creative arguments and interpretations; indeed, the ICJ order against Russia could not be made without setting a new precedent that required what amounts to legal acrobatics. Then if the ICJ has the ability to be that creative with Ukraine, why did the Court refrain from finding a way to extend the Ukraine-v-Russia precedent to the South Africa application, and consequently order Israel to stop all military activity in and against Gaza — or, why didn’t it try to employ a new chapter of legal acrobatics, this time in favor of Palestine!?

Apart from the technical difference in the Russia-Ukraine case, the most important reason behind the ICJ’s decision on South Africa’s case has to do with a deep bias in international law and its institutions toward the sovereign state, and the modern liberal state in particular — a bias that assumes these states’ good faith, that their violence, like Israel’s, is not characterized by inherent barbarism (unless proven otherwise).

Ukraine accuses Russia not of genocide, but of aggression on its territory by abusing the provisions of the Genocide Convention. So when the ICJ orders Russia to stop all its military operations, it implies that it considers them part of a possible crime of aggression, not a possible crime of genocide. In other words, the court can order Russia to stop its military operations without addressing the question of whether Russian conduct, in its essence and without the need for lengthy investigations, involves atrocities and crimes against innocent people. This is not the case with Israel, a state accused of committing genocide.

With Russia, the court can rationalize its decision to order Russia to stop all military operations as follows: Russia has committed an act of aggression against the sovereignty and territorial integrity of another state; it has no right to go to war and is consequently in violation of the laws governing the use of force between states of the right to use force (namely jus ad bellum). Therefore, any Russian military action is essentially part of an illegal aggression. Even if Russia adhered to international humanitarian law applicable to the conduct of hostilities during war (known as jus in bello) and did not intentionally harm civilians, etc., we still know that a single Russian bullet fired on Ukrainian territory is in itself part of a possible crime of aggression. No matter much how Russia complies with the law on the conduct of hostilities (jus in bello), it is “inevitable that any military operation” will cause damage, the court said. The Court can therefore order Russia to stop all military operations, but this does not necessarily mean that it concurs that the Russian military is targeting Ukrainian civilians and committing crimes against them.

In the case of Israel, if the ICJ were to order the cessation of all military operations, this would have meant recognizing that any Israeli military operation in Gaza is by its very nature part of a possible genocidal crime. There is more than enough evidence — historical evidence, even — that Palestinians have been presenting to the world for decades. But such a ruling would have colluded with deep biases entrenched in the structures of international law. Modern international law privileges organized violence of the sovereign state and confers upon it the eternal right to be assumed to be acting in good faith, the right to the benefit of the doubt until we wait, investigate, and analyse to see until it clears out. These privileges are applicable no matter how great the campaign of organized collective killing and destruction is.

Non-state actors certainly do not benefit from this prerogative. Their violence is rendered in essence as absolute evil, and its rationale constituted many of the founding principles behind discourses such as the "war on terror."

In the case of the Palestinian armed resistance group’s operations on the morning of October 7, a legal and moral qualification was broadcast worldwide by the afternoon of the same day to categorize the operation as innately atrocious. The International Court of Justice itself was forced, for purely political reasons, to acknowledge the crimes committed on October 7 in its interim ruling on South Africa’s case against Israel, although the ruling itself does not address the substance of the day’s events or the legal liability of Palestinian armed groups as it does not pertain to this case. In this political framework, the ICJ adopted the Occupation’s figures on the victims of October 7 attributed to Palestinian armed groups as the perpetrators of a heinous international crime. 

The ICJ framing characterizes 7 October, entirely, as inherently atrocious, just like that... abruptly, briefly, and without need for any proper scrutiny. The Palestinian groups, international law tells us, have no right to by subject to legal scrutiny that follows independent, lengthy investigations, that would distinguish between civilian and combatants' casualties and military fatalities due to military operations, or conduct the 'proportionality' assessment and exclude death and destruction caused 'incidentally' due the exigencies of combat, those who were targeted and those who were accidentally killed, and finally exclude those accidentally or intentionally killed by the Israeli forces themselves. The sovereign state, in comparison, is always given space to justify its actions and demand more time and information to interpret, reinterpret, and give new meanings to what our eyes can directly see.

International law has conditioned us to always accept that there is a distinction between two regimes of law applicable to intense, organised armed violence: one regime concerns how warring parties carry out their military operation (_jus in bello_) and that this system is completely independent of the legal regime concerning the right to use force (jus ad bellum). Reaching moral and legal conclusions and adjudicating the right to use force (jus ad bellum) is always 'complex' and many times too 'political', international law tells us. Thus, we can always disregard the matter of 'who the aggressor is'; and disregard all the wars of aggression the modern liberal state has waged in the Global South in the last seven decades. Instead, we should look professionally, independently, and apolitically at the conduct of hostilities alone; namely, how does the army (regardless of whether or not it is an aggressor army) conduct the war, with humanity or not. International law, thus, is not concerned with the fact of killing and destruction, it is only concerned with ensuring that the modern state does so 'with humanity'.

In the investigation into the conduct of hostilities of the modern state, we must always (always, always) wait (and wait, and then wait) to see if the state has made mistake while conducting its attack, or if a “legitimate” military objective does in fact exist that will allow us perhaps to see (after lengthy analyses and legal acrobatics) that: Yes, this damage 'incidentally' done to civilians was legitimate, no matter how extensive the death toll or destruction is.

However, in Russia's case we have also become used to the fact that the legal body that adjudicates jus in bello is at the heart of modern international law philosophy and that this body is completely independent of that of jus ad bellum, or the right to use force. For the Court to issue a provisional measure order, it has to be justified by the need to prevent an 'irreparable prejudice to the rights in question'. To justify its interim order, the ICJ considered Russia’s military operations to inflict “irreparable prejudice to the rights (of Ukraine)" as it is “inevitable that any military operation” would result in harm to the civilian population. The mere fact and act of aggression, accordingly, is criminal, the ICJ thinks. We would always have to be patient when a modern state carries out a military attack to see if some mistake was made or if a legitimate military objective exists to justify the resulting collateral damage done to civilians, no matter how grand the size of death and destruction is.

In Russia’s case, the ICJ recognized the fact that the war itself is a form of unacceptable violence in a ruling against Russia marked by an unprecedentedly loose interpretation of legal texts. To justify its authority to issue an order for interim measures, the ICJ considered Russia’s military operations as leaving "irreparable harm" in their wake and entailing a crime of “aggression” as it is “inevitable that any military operation" would cause damage. This is unprecedented language, as we are witnessing for the first time an international court concede that war waged by nation-states is also — like "terrorism" — in itself an absolute evil. 

Does the inevitability of “any military operation" causing damage not apply to Gaza? Even if we recognize that Israel seeks to comply with the laws and that any damage is in fact a mistake, unintentional, or collateral, doesn’t this fact of the evil inherent in war require a direct, clear and explicit decision to cease military operations, on par with the case against Russia?

The answer is that Russia’s case is an exception due to its reliance on loose interpretations and possibly double standards. It is certainly no coincidence that the first time an international court recognized the violence inherent in the concepts of "war" and "aggression" — without having to consider the matter of adherence to International Humanitarian Law or lack thereof — has only taken place in describing the conduct of a state that has already been branded as undemocratic, illiberal, etc.

The privileges and entitlements of a sovereign state are even greater if it is a modern liberal democratic state. For this reason, the very core of the Israeli diplomatic discourse, and even its defense before the ICJ, rests on an assumption that Israel is a modern liberal democratic state with independent institutions and a civilized code of military ethics (prepared by eminent philosopher Asa Kasher, who has a history of casually rationalizing massive war crimes as long as committed against Palestinians). In this narrative, Israel is always and eternally a democratic state. That's it; things that do not matter include its history, its daily practices on the ground, and discriminating judicial system, etc. Because of this, we see a high-ranking British official like David Cameron reject the mere idea of filing a case with the ICJ as “sheer absurdity.” Why? Because “Israel is a modern democratic state.” This is how Cameron responds. The evidence, video footage, testimonies and even statements of the Israeli leadership are all worthless. Just like that: A categorical qualification of a state as democratic and liberal suffices to interpret and reinterpret and give new meanings to evidence, well-documented practice, and photographic images. Israel is a democratic state, despite its history, military presence and practices on the ground, and discriminating judicial system, . Hence, we see a high-ranking British official like David Cameron reject the mere idea of filing a case with the ICJ as "sheer absurdity." Why? Because "Israel is a modern democratic state." This is how Cameron responds. The evidence, video footage, testimonies and even statements of the Israeli leadership are all worthless.

The main consequence of this state of affairs is that the violence carried out by the modern militaries of sovereign states always enjoys the right to be assumed to be acting in good faith, and the state and its narratives always enjoy the right to be heard carefully, with considerable patience, that may last for years and decades. These biases are not necessarily put in writing in the law but are rather a relic of the historical relationship between international law and the European colonial project, which dates back to the 16th century, as Antony Anghie shows in his pioneering book, Imperialism, Sovereignty and the Making of International Law.

Therefore, the most that the ICJ can do, without disrupting its imperialist and colonial-era prejudices, is to order the cessation of acts involving crime, not to deem any Israeli military action criminal per se.

As for the interpretation of Israel’s supporters that the ruling is in its favor or in favor of the continuation of military operations, it is simply wrong. A legal precondition that must be fulfilled for the ICJ to issue provisional measures is that the object of the claim is "plausible". As soon as the ICJ issues provisional measures, we already know it is "plausible" that Israel may indeed be about to commit or is committing the most serious crime in the international legal system, or “the crime of all crimes,” as it is called.' This, precisely, is what the Court did.

As for the ruling's provisions, all articles list acts of genocide along with orders to Israel to ensure the prevention and punishment of its acts. Moreover, the ruling's text dismisses the Israeli narrative altogether.

We can then consider that the ICJ’s ruling has the actual value of a ceasefire order, as noted by the Law for Palestine initiative. An order to halt genocidal acts would require the cessation of military operations, granting other states the right to intervene, for example, by imposing an arms embargo on Israel, to put an end to these military operations.

But the court still distinguishes the case of Gaza

The ruling and its provisions are consistent with what has already been approved by the ICJ in similar cases; even the language used is almost completely identical. The ICJ did not instruct either Myanmar or Yugoslavia to cease military operations. Similar to the order against Israel, the court merely listed the acts constituting the crime of genocide and then mandated measures to ensure their cessation, non-commission and prevention, and called for the punishment of their perpetrators. The order was also consistent with the ICJ’s doctrine, which is biased toward the sovereign state, especially if the state is democratic and liberal. 

Three elements, however, distinguish the ruling issued in South Africa’s request from similar previous cases, which are meant to address the catastrophic and exceptional situation produced by Israel in Gaza.

The first element concerns the "incitement" to commit genocide in Gaza. Despite the enormous governmental and non-governmental restrictions and censorship of pro-Palestine speech, the ICJ’s perspective appears to have been influenced by the unprecedented global mobilization of popular solidarity with the Palestinian people. These actions exposed the hateful public discourse and collective hysteria in Israeli media, streets and military barracks.

Let us acknowledge that in Myanmar and Yugoslavia, too, the public space was characterized by frighteningly large-scale incendiary rhetoric, but in both cases, the ICJ’s interim measures were limited to demanding that the two governments "ensure that no (persons subject to their control) commit any acts of public incitement to commit genocide (...)." In the case of Gaza, the ICJ ordered Israel to take all possible measures "to prevent and punish direct and public incitement to commit genocide [against Palestinians in Gaza]." The language of the order issued against Israel was firm and clearly demanded prevention and punishment, not just "ensuring" that individuals subject to the state do not commit such crimes.

The second element pertains to enabling the entry of humanitarian aid into the strip. South Africa has laid out the humanitarian situation in Gaza and accused Israel of preventing the entry of food, medical aid and other basic needs to Palestinians in Gaza. Israel’s defense representative denied the existence of a humanitarian crisis in Gaza and argued that the limited entry of aid from the Israeli side of the border does not violate international law. Instead, Israel's defense team drew attention to the role of Egypt as a sovereign state that shares a border with the strip, which should allow it to send in all the aid it wants. The ICJ took on South Africa's request, ordered Israel to immediately and effectively enable humanitarian aid and basic needs to enter, and invoked UN reports on the catastrophic situation in Gaza, thereby rejecting Israel’s narrative.

The ICJ’s third element obliges Israel to submit a report on the measures taken to implement its ruling’s provisions within one month from the date of the order. In the case of Bosnia and Herzegovina, the ICJ did not bind Yugoslavia to a similar clause, and in the case of the Rohingya, the court obliged the Burmese government to submit a report within four months. 

What is historic about the ICJ's order is not the order itself; it is the circumstances that made it unavoidable. In fact, the order itself is simply an expression of the Court's adherence to its precedents on the one hand, and loyalty to the lingering structures of colonialism that privilege the violence of the civilized/modern/liberal/developed state. What is historic, however, is the magnitude of Israel's campaign of extermination and unprecedented availability of audio-visual evidence of the genocide and the genocidal intent, all in real-time. The Court had to slightly distinguish the South African application from Myanmar and Bosnia and Herzegeovina cases, not to save the Palestinians; rather to save itself.

Therefore, the ICJ’s order is a disaster for Israel and its diplomatic machinery. If the question was whether the ICJ has issued a revolutionary decision that disrupts the imperialist structures governing the international system which favors violence committed by states deemed by the Global North as modern and liberal and legitimizes the subjugation of the peoples of the Global South, the answer is no. But if the question was: Has the court issued a historical decision of the utmost importance against Israel? The answer, in that case, is yes.