On 28 January, the World Court rendered a landmark verdict in the case instituted by South Africa against Israel for committing acts of genocide against the Palestinians in the Gaza Strip. South Africa had sought the court’s provisional ruling for an immediate ceasefire, a directive to Israel to desist from committing acts of genocide against civilians and to submit a compliance report within one week.
The court, in its judgment, stopped short of calling for a ceasefire but gave satisfaction to South Africa’s other demands by directing Israel to desist from committing acts of genocidal nature; to take immediate and effective measures to address the appalling conditions in which the people of Gaza were living; and to submit a compliance report within one month. It also directed Hamas to immediately release Israeli hostages held by it. The court’s ruling raises a number of questions some of which we propose to deal with here.
First, why did the court fail to call for a ceasefire despite the undeniable urgent need for it? Second, given the shrieking evidence of statements by Israeli leaders advocating the total elimination of the civilian population of Gaza why didn't it find Israel guilty of genocide? Third, will Israel carry out the Court’s order to prevent the commission of genocidal acts and to take immediate and effective measures to address the awful conditions of civilians in Gaza?
As to the first question, the court’s failure to call for a ceasefire was a huge disappointment to the Gazans who desperately need it given the unspeakable brutality of Israel against the civilians and a cause for celebration for the Israelis who are in no mood to cease their military campaign any time soon. Commentators have supplied different explanations for this. One commentator has opined that the Court did not do so because the Palestine state is not a party to the current dispute. Another has explained that it was because of Israel’s contested right of self-defense. In the presence of Israel’s plea of self-defense and South Africa’s allegation that it was committing genocide, the Court must have been on the horn of dilemma.
Contrary to a national court whose jurisdiction is compulsory and whose decisions are accompanied by an effective enforcement mechanism, the World Court’s jurisdiction is absolutely voluntary and the implementation machinery is very weak.
In other words, on the one hand there was significant evidence of Israel’s genocidal intent and on the other Israel’s determination to continue the war in the exercise of its right of self-defense. It appears that the court struck a balance between the two diametrically opposed positions by conceding Israel’s claim of exercise of right of self-defense, but at the same time found it guilty of plausible violation of its obligations under the Genocide Convention.
There may be some merit in the above explanations. However, as a student of the world court, I have a different take on it. I believe the world court’s DNA is inherently conservative. When confronted with the choice between a progressive and a conservative interpretation, it invariably tends to opt for the latter. There is a valid reason for this approach.
Contrary to a national court whose jurisdiction is compulsory and whose decisions are accompanied by an effective enforcement mechanism, the World Court’s jurisdiction is absolutely voluntary and the implementation machinery is very weak. Given this situation, it has to tread very carefully while rendering its decisions. It prefers to render a judgment based on conservative construction as it is not likely to take the parties by surprise. If it decides to take a bold approach resulting in unpredictable decisions, there is a strong likelihood that states will stay away from the court. Besides, in the present case, we also do not rule out the possibility that some judges, especially from third world countries, might have been predisposed towards finding Israel guilty of genocide but stopped short of doing so and instead, in a spirit of compromise, opted to find it guilty of plausible violation of its obligations under the Genocide Convention.
As to the second question, the statements by Israeli leaders in the present ruling coalition, on the face of it, clearly amounted to genocidal intent. For example, Israeli Defence Minister Gallant observed, ‘We are fighting human animals, and we are acting accordingly…We will eliminate everything.’ Similarly, Prime Minister Netanyahu while addressing the nation, invoked the Biblical command by God to king Saul [in the Old Testament] to entirely destroy the Amalekites who had struck Israelites and vowed to do the same with the Palestinians in Gaza.
Again, the Israeli President Isaac Herzog swore to punish all the Palestinians of Gaza when he declared, ‘[Gazans are] an entire nation out there that is responsible… This rhetoric about civilians not involved [in the October 7 onslaught] - it’s absolutely not true.’
It is noteworthy that it was not the first time that Israeli leaders have made such statements. This has been their constant refrain, even before 7 October. Now the problem with the charge of genocidal intent is that the standard of proof is very high. Indeed, it is hard to demonstrate a genocidal intent beyond any shadow of doubt. Hence the Court hesitated to pronounce on this count. However, it was certainly a measure of success of the Gazans’ cause that it held Israel responsible for plausible - meaning that the charge is reasonable and is likely to be true - violation of its obligations under the Genocide Convention. Putting Israel on probation, it also demanded from it to submit a compliance report on it within one month.
The sad part is that western states, especially the US, refused to help in the implementation process. Will the situation change this time?
As to the third question, Netanyahu has declared that he is not going to implement the Court’s decision come what may. Israel’s refusal is not just a one-off case. One observes a consistent pattern on the part of Israel to act with immunity in matters pertaining to its international obligations vis-a-vis Palestine. For example, Israel rejected the Court’s opinion in the 2004 case on the separation wall in the occupied Palestinian territory whose construction the Court had declared illegal and sought its dismantlement. In consequence, Israel refused to implement the ruling even though the Israeli Supreme Court too had urged the government to give its ‘full appropriate weight’ to the ICJ’s decision.
It is true that an advisory opinion is not binding and is merely exhortatory in character. However, its value is no less than that of a judgment. The sad part is that western states, especially the US, refused to help in the implementation process. Will the situation change this time? The prospects appear to be promising this time around because following the Court’s judgment, the EU which has fully supported Israel in its military campaign against Hamas, has declared that it expects ‘full, immediate, and effective’ implementation from Israel. Besides, more and more European states have shown willingness to carry out the Court’s decision. Similarly, one hopes that the judgment by an overwhelming majority of judges which includes the US judge (Joan Donoghue presides over the Court) will have a positive impact on the US stance when the Security Council is seized of the matter