How Israel Views the International Court of Justice’s Emergency Measures Against It

On January 26, the International Court of Justice (ICJ) issued its interim ruling on the lawsuit filed by South Africa that accuses Israel of committing genocide against Palestinians in the Gaza Strip. The ruling included a demand for Israel to take immediate measures to prevent genocide in the territory until the court issues a final judgment in the case.

The interim ruling carries several ramifications for Israel, especially on the domestic level. Israeli reactions to the decision have varied. Some Israelis oppose the ruling and accuse the court, while others praise it as a victory for Israel. This deep division between the responses necessitates an understanding of how Israeli political and military forces perceive the court’s decision.       

What Does the Interim Ruling Mean?

ICJ issued its interim ruling based on six emergency measures regarding the war in the Gaza Strip.

1- Israel’s compliance of not exceeding the actions stipulated in Article 2 of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (or Genocide Convention).

2- Israel ensures that its military does not undertake any actions that contravene the aforementioned provision of the Genocide Convention.

3- Preventing and punishing public incitement to commit genocide against Palestinians.

4- Provide the services and basic humanitarian aid for civilians in Gaza Strip.

5- Preserve any evidence indicating a possible war crime and allow fact-finding missions access to it.

6- Submit a report within one month from the issuance of the interim ruling on Israeli compliance with the measures imposed by the court.

The interim ruling that included those emergency measures was approval by a vast ICJ majority: 15–2. Considering that Israel and South Africa are both UN member states and have both signed the Genocide Convention, the interim ruling is binding on Israel. The court, however, lacks the executive power to implement its decisions. Nevertheless, in the event of Israel’s non-compliance with the emergency measures, South Africa or other UN member states can refer the matter to the UN Security Council.

If the decision is voted on unanimously, Israel would be obligated to comply with the measures. But, then again, the United States can always use of its veto power against such a decision, as it did in October 2023 with a veto that killed a resolution calling for a humanitarian ceasefire.

Nevertheless, Israel has not yet shown compliance with these emergency measures. Amnesty International reported evidence of illegal Israeli attacks that caused mass civilian casualties. The prosecutor of the International Criminal Court noted that he had not observed any significant change in Israel’s behavior since his visit to Ramallah on November 30, 2023.

Seven of the world’s most important humanitarian agencies and human rights organizations signed a statement warning of the potential slaughter and displacement of the more than 1 million Palestinians if Israel escalates the war towards the city of Rafah. Field data, media reports, and even official statements from war supporters, especially American officials, indicate that Israel has not been held accountable for statements supporting genocide. Israel also continues to restrict access to aid and fuel for Palestinians in the Gaza Strip, continues its military operations in the Khan Yunis area, and prepares for an invasion of Rafah in the south. With approximately 1.5 million people, both displaced and residents, in the area, an Israeli invasion will only expand the cycle of violence and increase the death toll of Palestinian civilians.

 Israeli Reactions to the Interim Ruling

Israel takes the case filed against it in the International Court of Justice seriously, as shown by its choice of British lawyer Malcolm Shaw to defend it before the court. Shaw is one of the world’s foremost experts in international law. Additionally, Israel selected Aharon Barak, former president of the Israeli Supreme Court, to be among the judges on the court’s panel.

These Israeli defense measures pay respect to the international trust and strong reputation the ICJ has earned, the binding nature of its decisions, and the impact of its rulings on the reputation of accused states. Additionally, there are concerns about the potential for economic sanctions or the halting of arms sales to accused states.

With the issuance of the interim ruling, there was a noticeable difference and divergence in the viewpoints of Israelis, Palestinians, and South Africans regarding its support. South Africa welcomed the decision, viewing it as tantamount to a ceasefire. “Israel will have to stop fighting in the besieged Gaza Strip,” declared South African Foreign Minister Naledi Pandor, “if it wants to comply with the International Court of Justice’s orders.”

Hamas also welcomed the ruling. Its senior spokesperson Sami Abu Zuhri described it as “an important development that contributes to the isolation of the Israel and exposes its crimes in Gaza.”

In contrast, Israeli Prime Minister Benjamin Netanyahu implied that by not ordering a ceasefire, the court had endorsed Israel’s right to self-defense. Israeli spokesperson Eylon Levy said the court “rejected South Africa’s ridiculous request that Israel stop defending its people and fighting for the hostages.” And Avi Mayer, former editor-in-chief of the Jerusalem Post, called the ruling “a devastating blow to those who accuse the Jewish state of committing genocide.”

Key Conclusions From the Court’s Decision

First, the court adopted five interim measures out of the nine requested by South Africa, and the four exempted measures are considered the most significant. Among them are the suspension of military operations, refraining from escalation beyond the current situation, taking steps to punish those involved in acts of genocide, and avoiding any complications that could prolong the trial.

Second, the absence of a clear and explicit mention of a ceasefire in the interim ruling is a major success in itself for Israel. The ICJ’s interim ruling in the case brought by Ukraine against Russia called upon Russia to immediately halt its military operations in Ukraine.

Third, the court’s decision does not, ipso facto, mean the ICJ believes Israel is committing acts of genocide. This can be inferred from the nature of the orders issued in the interim ruling and the language used in writing them. The court avoided terms such as immediately or cease, and the emergency measures it demands are aimed at ensuring compliance with the specific rights outlined in the Genocide Convention signed in 1948—and ratified by Israel.

Fourth, the decision is not expected to affect the course of the war, especially since Israel declares to the international community that it does not reject the entry of humanitarian aid. Israel frames its actions as self-defense under the rules of armed conflict against groups and organizations classified as terrorist. Israeli and American officials have repeatedly accused Hamas of using civilians as human shields, particularly in its previous war in 2014. In July of that year, Netanyahu accused Hamas of using civilians as human shields in Shujaiya. During the current war, U.S. President Joe Biden accused Hamas of having “no regard—none whatsoever—if those citizens live or die.” According to this rhetoric, Hamas alone is responsible for the war’s exceedingly high number of casualties.

On the other hand, Hamas, specifically, and Palestinians, in general, are not parties to the court or the Genocide Convention. Therefore, the ICJ cannot compel them to call for a ceasefire similar to Israel’s. Especially since, from the Israeli perspective, the war is a direct result of Hamas attacks, capturing and killing more than 1,000 civilians and Israeli soldiers. As stated in the legal pleadings of Israeli Foreign Ministry legal adviser Tal Becker, “If Hamas surrenders and releases its hostages, Israeli hostilities against the group will cease.”

Furthermore, South Africa, the plaintiff against Israel, has been seeking to portray Israel as a state practicing apartheid for decades. Its recourse to the court this time, and the latter’s acceptance of the lawsuit, is seen in light of the unprecedented humanitarian conditions and the high number of civilian casualties, exceeding 30,000, mostly children and women, which the liberal side of the international community cannot ignore. Thus, it must be addressed, and Israel must respond to it. Nevertheless, the elite group of lawyers and politicians in Israel do not see their country’s position in the court as weak, especially after the intervention of a supportive third party, along with Germany’s decision to join in supporting Israel’s stance on the issue.

 Western support for Israel will continue regardless of the court’s decisions. Following the issuance of the interim ruling, the United States announced the cessation of funding to the UN Relief and Works Agency for Palestinian refugees in the Near East after Israel presented allegations that at least 12 of its employees were involvement in attacks by Palestinian factions in the Gaza Strip. Other countries followed suit in announcing that they too were suspending their funding.

Six Short- and Long-Term Consequences for Israel

The Israeli perspective primarily rests on the notion that the ICJ’s interim ruling could have been worse. It could have explicitly called for a ceasefire or the withdrawal of Israeli forces from the Gaza Strip. However, Israel’s sigh of relief is  temporary as both Israel and the world await the court’s final judgment, which could take years. Nevertheless, the current decision entails several immediate and future consequences for Israel.

1- The ICJ overwhelmingly rejected, 15–2, Israel’s request to dismiss the lawsuit filed by South Africa, stating that there is “plausibility” to South Africa’s claims that Palestinians require protection from genocide. Thus, the highest court affiliated with the United Nations and a reputable international institution has found evidence that supports allegations of genocide. This obligates Israel to respond, which will most likely embarrass it before the international community and impact its standing among its allies as a democratic state.

2- There are segments within Israel that view the ICJ’s ruling as part of a larger campaign aimed at undermining Israel and usurping its right to exist. They perceive the court’s decision as delegitimizing Israel politically in the international community and among its allies, complementing military actions seeking to defeat Israel in the war. This conclusion has been circulated within several political and academic circles in Israel, as evidenced by a study published by the Israeli Institute for National Security Studies (INSS).

3- The interim ruling may place Israeli military officials in a difficult position  facing narrow options. They may either comply with political pressure to continue the war and invade Rafah, and thus risking potential prosecution by the International Criminal Court, or reject political demands and confront domestic charges by capitulating to Hamas. This dilemma is exacerbated by subsequent remarks and statements made by Israeli officials after October 7th, which have become integral evidence presented by South Africa to the ICJ.

4- A bloc of opposition to the war and Israel’s military campaign has formed among several peoples and world leaders. Non-compliance with the measures stipulated in the court’s interim ruling would intensify popular pressure on many governments worldwide to reassess their relations with Tel Aviv. On February 12, a Dutch court ordered the suspension of F-35 aircraft spare parts delivery to Israel due to a “clear risk” of these aircraft being involved in violations of international humanitarian law. That same day, the EU’s High Representative for Foreign Affairs Josep Borrell called for allies, specifically the United States, to halt their supply of arms to Israel.

5- The ICJ represents one of the institutions of international law established by the United States and Western countries, many of which support Israel in its war efforts and are aligned with Israel in international arenas. Israel ignoring the court’s decisions could have long-term consequences on its alignment with the Western bloc.

6- The interim ruling, even though not final, will burden Israel for years to come. Its officials will have to constantly defend Israel before the international community, insisting that it does not commit acts of genocide. This contradicts Israel’s historical narrative regarding its intense fear of the Palestinian community and it strengthens the Palestinian voice in confronting Israel on the international stage.

Conclusion

Finally, Israel will enter a new phase with the ICJ’s interim ruling on February 26, which is also Israel’s deadline for submitting its report to the court, which South Africa can formally respond to.

Although the impact of the trial proceedings on the war may be secondary, the trial itself, which is expected to go on for years, will keep the decisions and behavior of today’s Israeli leaders seemingly forever in the news. This may help lead Israeli voters to turn away from religious and extremist nationalist parties and support liberal and centrist right-wing parties.

Meanwhile, following South Africa’s breakthrough legal initiative, the likelihood increases that other countries supportive of the Palestinian cause will also initiate proceedings aimed at intensifying international pressure on Israel, whether through international courts or various UN agencies.