What to know about the ICJ's historic ruling about Israel's conduct in Gaza

On Friday, the International Court of Justice (ICJ) delivered a historic ruling on South Africa's petition accusing Israel of genocide in its assault on Gaza.

In a public session today at the Hague, the United Nation's top court announced in an interim decision that it does indeed have jurisdiction over this case, and that the charge of genocide over Israel's conduct in Gaza is plausible.

When South Africa filed its case in December, it requested that the court also consider provisional measures 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 Convention not to commit genocide and to prevent and punish genocide."

The ICJ stopped short of ordering a ceasefire in Gaza, but instructed Israel to take more steps to protect innocent life, and to report back on these measures in one month.

Here are the key takeaways from the ruling and their significance:

Friday's ruling is not a decision on whether Israel has committed the crime of genocide, but an interim decision on provisional measures.

Essentially, the ICJ ruled that South Africa's case does have merit and can continue, though it could be litigated for years to come. It did not yet decide whether Israel's actions in Gaza amount to genocide. That is a question for the merits phase. Today's ruling is about protecting these rights while the case is pending.

What happened on January 26, 2024?

ICJ President Judge Joan Donoghue began by briefly describing the stages of the case to date. She then addressed the issues of prima facie jurisdiction, South Africa's standing to file a case, the rights whose protection is sought and the link between such rights and the measures requested, as well as the risk of irreparable prejudice and urgency. Finally, she announced the measures to be adopted.

The court concluded that it had jurisdiction to hear the case under Article IX of the Genocide Convention.

With regard to South Africa's standing, the court cited The Gambia v. Myanmar, holding that any state party to the Genocide Convention might invoke the responsibility of another state party, including by instituting proceedings before the court, to determine the alleged failure to fulfill its obligations under the Convention erga omnes partes and to bring such failure to an end (Application of the Convention on the Prevention and Punishment of the Crime of Genocide).

Consequently, the court concluded that South Africa has standing in the dispute with Israel concerning alleged violations of obligations under the Genocide Convention.

The "World Court" has decided that a case of genocide over Israel's conduct in Gaza is plausible.

The court concluded that at least some of the rights claimed by South Africa and for which it seeks protection (in relation to the right of Palestinians in Gaza to be protected from acts of genocide and related prohibited acts under Article III, and the right of South Africa to seek Israel's compliance with its obligations under the Convention) are plausible.

Regardless of the court's genocide verdict against Israel, this statement is significant. After weeks of dismissals and denials from Israel, the United States and other countries about the merits of the case, the ICJ's decision is a real blow to the Israeli regime.

This was not a definitive verdict on genocide. But even saying it is plausible that Israel is violating the Genocide Convention with its actions in Gaza should be enough of a reason for the US and United Kingdom to cease military support. The US administration must now reconsider its own decisions.

How can arms sales to Israel continue after the ICJ has ruled that South Africa's case is legitimate, that claims of genocide are plausible, and that Israel must stop killing Palestinian civilians and punish officials who have incited genocide?

Has there been irreparable prejudice to those rights and a condition of urgency?

The court's answer is yes.

The ICJ considered that urgency exists in the sense of a real and imminent risk of irreparable prejudice to the rights that it considered plausibly arguable before a final decision could be given.

It should be noted that at this point, the court is not assessing whether there has been a violation, but whether rights under the Genocide Convention should be protected.

Decision on provisional measures including a ceasefire

The court found that the conditions for some, but not all, provisional measures had been met. These measures include several orders:

-Israel must take all measures to prevent the commission of all acts under Article 2 of the Genocide Convention (i.e. all acts of genocide).

-Israel must immediately ensure that its military forces do not commit any of the acts covered by Article 2 of the Genocide Convention.

-Israel must take all measures within its power to prevent and punish direct and flagrant incitement to genocide against Palestinians in Gaza.

-Israel must provide humanitarian aid to Palestinians in Gaza.

-Israel must preserve evidence of alleged violations of the Genocide Convention.

-Israel must report to the ICJ on its compliance with all provisional measures taken within one month of the date of the order.

However, the court denied South Africa's first request, which was for an immediate cessation of military operations by Israel in Gaza. This was, to some extent, an expected outcome. The court focused on the provisions of the Genocide Convention and not on all the provisional measures requested by South Africa.

Call for the release of captives

The court also stated that all those involved in the conflict are bound to comply with international humanitarian law. It called on Hamas for the immediate and unconditional release of Israeli captives being held in Gaza.

In view of the fact that only states are parties to cases before the court, this mention of Hamas is interesting. Although all parties must comply with the ICJ ruling, it remains to be seen whether Hamas, which is not a party to the case, will comply with the court's request.

Hamas said on Thursday that if the International Court of Justice issues a ruling calling for a ceasefire in Gaza, the group will abide by it as long as Israel reciprocates.

It also said that Hamas would release all the Israeli captives in Gaza if Israel released all Palestinians prisoners. But in the absence of a ceasefire order, what happens next remains to be seen.

Votes by judges

Fifteen judges voted in favour of the provisional measures, while two judges voted against them. Judge Julia Sebutinde and Judge Aharon Barak cast the two negative votes. Sebutinde, a Ugandan judge, voted against all the measures.

Interestingly, Israeli-appointed Barak favoured two provisional measures: that Israel must take all measures to prevent and punish direct and flagrant incitement to genocide against Palestinians in Gaza, and that Israel must provide humanitarian assistance to Palestinians in Gaza.

That Barak, who was expected to vote against all provisional measures, voted in favour of these two measures indicates the magnitude of the consensus among the judges of the court. The court ruled almost unanimously.

Regarding Sebutinde's votes, Uganda's ambassador and permanent UN representative said that "Justice Sebutinde ruling at the International Court of Justice does not represent the Government of Uganda's position on the situation in Palestine. She has previously voted against Uganda's case on DRC. Uganda's support for the plight of the Palestinian people has been expressed through Uganda's voting pattern at the United Nations."

Is the order binding?

The court emphasised that decisions on provisional measures are legally binding.

However, due to the lack of an enforcement mechanism, such orders are not always complied with. In this respect, there is a risk that provisional measures may have no practical effect.

For instance, in the genocide case brought by Ukraine against Russia in 2022, the court ordered Russia to suspend its military operations on Ukrainian territory until the final decision in the case. However, Russia ignored this decision and continued its attacks.

Nevertheless, the court's almost unanimous order will impact Israel and the cooperating countries. Now that the world has been warned by the court that there is credible evidence of Israeli acts of genocide, it is to be expected that no country providing material support should continue to do so.

What happens if Israel does not comply with the provisional measures?

Under Article 94(2) of the Charter of the United Nations, the Security Council is authorised to enforce the court's decisions. Accordingly, if a party to the dispute fails to fulfil its obligations under a judgement of the court, the other party may have recourse at the Security Council. The council may, if it deems it necessary, make recommendations or decide on measures to be taken to give effect to the judgement.

Given the veto power of the United States, Israel's strongest ally, any action by the Security Council to enforce these provisional measures would come as a surprise.

However, if Israel fails to comply with the provisional measures, it would be held internationally responsible for ignoring the binding measures of the court, which would constitute a legitimate basis for "countermeasures" (such as ending the provision of economic and diplomatic support to Israel, imposing lawful and proportionate economic sanctions and other countermeasures on Israel, including cancelling all free-trade and cooperation agreements) against Israel.

Countermeasures must be proportional in the circumstances. They may include armed measures so long as the force used is minimal - such as in cutting nets of fishing vessels caught fishing in violation of treaties. Naturally, countermeasures which violate basic human rights or a peremptory norm of international law are not admissible under international law.

The International Court of Justice is the principal judicial organ of the United Nations. It is important to remember that in today's ruling, the court has ruled within its jurisdiction and within the bounds of international law.

Unlike the Security Council, it is not a political mechanism at the behest of particular states. Indeed, by filing a case against Israel with the ICJ, South Africa has tried to achieve what should have been achieved months ago in the Security Council - namely, getting Israel to comply with its obligations under international law. To some extent, it has succeeded in holding Israel liable for not meeting this duty. Yet, it has failed to achieve the most desired outcome: a ceasefire.