Almost There, But Not Quite: The ICJ’s Ceasefire Shortcomings

29-01-2024

Naira ElTonsy

Middle East and Human Rights Researcher

Global Human Rights Defence

On Friday, January 26, the International Court of Justice (ICJ) brought the South African case against Israel’s genocide of Palestinians to a conclusive interim ruling. It demanded Israel take “all measures within its power” to prevent genocidal acts against Palestinians in Gaza, however, it fell short of explicitly ordering an immediate ceasefire. [1] Raed Jarrar, the advocacy director at Democracy for the Arab World Now (DAWN), highlights this as the biggest defeat to Israel in the past 75 years, nevertheless, “it goes beyond Israel” as other countries must oblige to their legal and political obligations in preventing a genocide in Gaza. [2] 

Upon initially presenting its case, South Africa petitioned the ICJ for nine emergency measures against Israel, subsequently, the ICJ mandated Israel to comply with six of these. [3] Israel must comply with Article 2 of the 1948 Genocide Convention, which entails not killing, causing physical or psychological harm to members of a particular group, as well as not inflicting living conditions of life calculated to bring about its physical destruction in whole or in part. [4] Israel must also prevent and punish acts of genocide against Palestinians, deliver basic humanitarian necessities and aid, prevent destructing evidence of their war crimes, and finally, within one month, present a report on the steps it has taken to abide by such measures. [5] These provisional measures were voted in favour by 15 out of 17 judges, while Judge Julia Sebutinde of Uganda voted against all six measures, and Judge Aharon Barak of Israel voted against four. [6] Judge Barak supported such rulings hoping that they would “help to decrease tensions and discourage damaging rhetoric”, as well as easing the “consequences of the armed conflict for the most vulnerable”. [7] Even though Antonio Guterres, the UN Secretary-General, highlighted that these rulings were legally binding, it is unclear whether Israel will abide by them as there is no way of enforcing them. [8]

Israeli Prime Minister, Benjamin Netanyahu, has already exacerbated the global skepticism towards Israel by boldly asserting, “Nobody will stop us - not The Hague, not the axis of evil and not anybody else.” [9] Furthermore, Yoav Gallant, Israeli Defense Minister, openly criticised the ICJ’s decision to open a case, claiming that they have “granted South Africa’s antisemitic request to discuss the claim of genocide in Gaza, and now refuses to reject the petition outright.” [10] As the ICJ lacks enforcement mechanisms, it will be of no surprise if Israel disregards their rulings, as they have consistently done with international law, with an example of ignoring the ICJ’s 2004 advisory opinion on the construction of a Wall in Occupied Palestinian Territories. [11] As for the US and Israel’s other Western allies, Mouin Rabbani, a political analyst and co-editor of Jadaliyya, said, “I do not expect them to change their policies in any substantial way. Western governments have always treated international law as something that only applies to others, and this case will be no different.” [12]  

For many, such rulings fail the main purpose of South Africa’s case against Israel: a ceasefire. Palestinians in Gaza have reported being devastated by the ICJ’s decision not to order a ceasefire. Yet, they say they are not surprised as they lack trust in the international and global justice system. [13] Agnes Callamard, Secretary General of Amnesty International, states that “An immediate ceasefire by all parties remains essential and - although not ordered by the courts - is the most effective condition to implement the provisional measures and end unprecedented civilian suffering.” [14] Many expressed deep gratitude to South Africa for its courageous stance in advocating for the rights and justice of besieged Palestinian lives amid acts of genocide. However, the journey does not conclude with the ICJ, true closure arrives with a ceasefire and justice for all Palestinians affected by this humanitarian catastrophe.

Sources and Further Reading

[1] Jillian Kestler-D’Amours, AlJazeera, (2024, January 27), ‘ICJ ruling in Gaza genocide renews calls to end Israel arms transfers’ <ICJ ruling in Gaza genocide case renews calls to end Israel arms transfers> accessed 29 January 2024. 

[2] Ibid. 

[3] Areesha Lodhi, (2024, January 26), ‘What has the ICJ ordered Israel to do on Gaza war, and what’s next?’ <What has the ICJ ordered Israel to do on Gaza war, and what’s next?> accessed 29 January 2024. 

[4] Ibid.  

[5] Ibid.

[6] Reuters, (2024, January 26), ‘ICJ ruling: Key takeaways from the court decision in Israel genocide case’ <ICJ ruling: Key takeaways from the court decision in Israel genocide case | Reuters> accessed 29 January 2024. 

[7] AP, (2024, January 27), ‘Top UN court orders Israel to prevent genocide in Gaza but stops short of ordering cease-fire’ <Top UN court orders Israel to prevent genocide in Gaza but stops short of ordering cease-fire | AP`> accessed 29 January 2024. 

[8] Ibid.

[9] Christian Edwards, CNN World, (2024, January 26), ‘Top UN courts says Israel must take ‘all measures’ to prevent genocide in Gaza but stops short on calling for ceasefire’ <Top UN courts says Israel must take ‘all measures’ to prevent genocide in Gaza but stops short on calling for ceasefire | CNN> accessed 

[10] Ibid.

[11] Giorgio Cafiero, (2024, January 29), ‘What does the ICJ ruling mean for Israel’s Western allies?’ <What does the ICJ ruling mean for Israel's Western allies?> accessed 29 January 2024. 

[12] Ibid.

[13] Maram Humaid, (2024, January 26), ‘ ‘This court is a failure’: Palestanians in Gaza decry ICJ’s interim ruling’ <‘This court is a failure’: Palestinians in Gaza decry ICJ’s interim ruling | Israel War on Gaza | Al Jazeera> accessed 29 January 2024.

[14] Amnesty International, (2024, January 26), ‘Israel must comply with key ICJ ruling ordering it to do all in its power to prevent genocide against Palestanians in Gaza’ <Israel must comply with key ICJ ruling ordering it do all in its power to prevent genocide against Palestinians in Gaza - Amnesty International> accessed 29 January 2024.