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Will the ICJ ruling change anything for Gaza?

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In November, South Africa approached the International Court of Justice (ICJ) to call for an immediate ceasefire in Gaza and to consider whether Israel is committing genocide.

All eyes were on the Hague last month as the ICJ made its interim ruling, calling for Israel to "take all measures within its powers" to prevent civilian deaths in Gaza. But it stopped short of ordering a ceasefire.

The court also ruled that aid must be allowed into Gaza. But since then, allegations from Israel that some employees of UNRWA – Gaza's biggest aid agency – were involved in the 7 October Hamas attacks has resulted in 16 donor countries suspending UNRWA funding.

In this episode, legal, humanitarian and foreign policy experts take stock of these events and dissect what the ICJ ruling really means for Israel, Gaza and wider geopolitical relations.

Speakers

  • Sara Pantuliano (host), Chief Executive, ODI
  • Kate Mackintosh, Executive Director, UCLA Law Promise Institute Europe
  • Raz Segal, Associate Professor of Holocaust and Genocide Studies, Stockton University
  • Ronak Gopaldas, Director, Signal Risk
  • Sorcha O’Callaghan, Director of Programme, Humanitarian Policy Group

Related resources

Welcome to Think Change. I'm Sara Pantuliano. 

Well, over the past four months, Israel's grand invasion of Gaza in response to the attack by Hamas on the 7th October has sparked a global backlash, particularly over the clear disregard for international humanitarian law. 

We've all witnessed a stark divide between western political leaders and the rest of the world.

We've seen several UN General Assembly and Security Council votes, they've isolated the US, the UK, and a handful of other allies from the majority of global opinion. 

And so last November, South Africa approached the International Court of Justice in The Hague to call for an immediate ceasefire in Gaza and to consider whether Israel is committing genocide. 

Well, as all of you know, on Friday 26th January, the court made an interim ruling. 

It ordered six provisional measures and that included for Israel to take all measures to prevent acts of genocide, but it stopped short of calling for an immediate ceasefire. 

Since then, we've also seen the defunding of Gaza's biggest aid agency, UNRWA.  

We've seen 16 donor countries suspending funding, an act that many have seen as tantamount to collective punishment given, you know, the critical reliance of the people besieged in Gaza on UNRWA’s humanitarian assistance. 

So today we want to reflect on the significance of the ruling and really help understand what comes next. 

And to do so, I'm joined by Kate Mackintosh, the executive director of UCLA Law Promise Institute in Europe. Welcome, Kate. Raz Segal, Associate Professor of Holocaust and Genocide Studies at Stockton University. Welcome, Raz.  

Ronak Gopaldas, Director of Signal Risk. Great to have you with us, Ronak. And last but not least, our very own Sorcha O'Callaghan, the Director of the Humanitarian Policy Group at ODI. 

Kate, you're in The Hague. I'll start with you. I'm sure you were watching closely as the International Court of Justice handed down its ruling as to whether Israel, as argued by South Africa, is committing genocide in Gaza. 

What's your take on what the court said?  

Thanks, Sara, and thanks for the invitation.  

It's great to be here. So Perhaps I can start by just laying out what the courts were asked to say and what the parameters were very briefly. 

So, as you know, South Africa asked the court to indicate what are called ‘provisional measures’, which is something that they can do once a case is lodged with them in order to preserve the rights of other parties.  

Or in other words, in order to stop something irreparable, some irreparable harm happening before the court has time to actually rule on the merits the case. 

So that was what was before it. They were asked to step in on an urgent basis and make a provisional ruling without actually hearing all the evidence or proceeding to a final determination. Right? So they were not being asked to decide whether or not genocide was being committed and, of course, they couldn't. It's a much longer procedure, and there will be extensive pleadings and evidence submitted and so on before they can do that. 

Now, in order to make this short, interim ruling, these provisional measures, the court basically had to determine two things. 

First of all, whether it had jurisdiction at all to take this case, and then it had to look at what South Africa was saying the threat was and whether the measures it was asking for were appropriate. 

So the jurisdiction part, actually, there's a technical part to that in terms of whether all the boxes have been ticked, whether the parties have signed up to the relevant conventions and so on, but there's also a subject matter part where they look at whether the acts that are complained of looked like they fall within the genocide convention, and the court actually went pretty fast to saying yes. They do. So they said, we have jurisdiction over this case, and, yeah, potentially, this is relevant to the genocide convention. 

They then went on to the second and more substantial part of the argument, which was to look at whether there was an actual risk of genocide being committed, and whether the measures that were being sought were relevant to preventing that risk. So, they frame it in slightly different language. 

They look at preserving the rights of the parties, but, essentially, what they're looking at is whether there was a plausible risk of genocide, and that is where we saw the court then noting some of the evidence which South Africa had presented and reciting it in its judgement. 

So, the court talked about the large number of deaths and injuries. They talked about massive destruction of homes, forcible displacement of the vast majority of the population, extensive damage to civilian infrastructure, and, crucially, they also talked about the dehumanizing statements that had been made by members of the Israeli authorities, such as the statements by Defence Minister Gallant about human animals releasing all restraints, and so on. 

And based on that, the court found that there was a plausible risk to the right of the Palestinians in Gaza to be protected from acts of genocide. So they essentially said, it's plausible. 

You know? It's plausible that the current situation is going to put the Palestinians in Gaza at risk of genocide. Therefore, it is appropriate for us to order some provisional measures. What provisional measures do we need to order? 

They looked at what was requested by South Africa, and they said, well, there's definitely a link between most of, at least some of, I think was their language, the measures requested and preserving these rights. 

Therefore, we can go ahead and make the order and order some of the provisional measures. 

So as you said, Sara, the headline issue, of course, was that they did not order a ceasefire. What they did order was pretty much everything that they could order within the bounds of the genocide convention. Right? 

They ordered the Israeli State to take more measures to prevent genocide, to ensure that the military did not commit genocide, to prevent and punish incitement to genocide and interestingly even the Israeli judge joined on that order, to enable provision of basic services and humanitarian assistance, again, the Israeli judge joined on that order, and then to prevent destruction of evidence of genocide and then to come back and report within a month. 

So, my take on it, to get to your original question, I mean, I think it was a positive decision. 

In my reading, in order to order a ceasefire, the court would have had to determined that any military activity was necessarily genocidal. 

You know, they would have had to determine that military activity in itself led inevitably to a risk of genocide, and I think that would have been a stretch. 

it clearly is possible for there to be military activity, which does not, risk you know, which is not aimed at destruction of a human group in whole or in part. 

So they would have had to have reached the conclusion that in this situation, that was not possible. So, I think it would have been a stretch. 

I think the court went about as far as it could go.  

Thanks. Kate, Raz, do you agree with, with Kate? What's, what are your reflections on the ruling? Is that, you know, really all that the court could do.  

Yeah. Hi. Thanks for having me. I'm happy to join this discussion.  

I actually think that the court, in effect, did actually rule for a ceasefire because, the court demanded that, the Israeli army, not perpetrate acts of genocide and prevent acts of genocide. 

And it listed, of course, the killing members of the group, causing serious bodily harm, not creating conditions calculated to bring about the physical destruction of the group. 

And, it also ordered the entry and distribution of aid in the scale that's needed, which is a massive scale that's needed because we know that we're facing now famine actually on the ground, and we know that 100 of 1,000 of Palestinians are already ill with infectious disease. 

So there, there's a need for massive aid, there is no way of ensuring that, the Israeli army does not perpetrate genocide, and there is no way of ensuring that there is an entry and distribution of aid, and the scale that's needed without a ceasefire. 

So in effect, the court, in my reading, did rule for a ceasefire. 

But I wanna add one more thing here that I think is very important. I mean, Israel has enjoyed decades of absolute immunity, impunity in the international, legal system. 

And this impunity very briefly is based, it's very foundational actually in the international legal system because it really emerged with the international legal system after World War 2, that is with genocide as a key innovation of the system after war, genocide and crimes against humanity, but genocide is what's considered, quote, the crime of crime. 

And it was based on the idea that the holocaust - no one used that word of course, at the time, but that the holocaust, the Nazi assault on Jews was unique. 

And therefore, when Israel was created in the same year, of course, as the genocide convention in 1948, because the Nazi assault on Jews was unique. 

Israel is the state of the survivors of the Nazi assault, also actually became unique in the international legal system. 

And therefore impunity, in that sense, was kind of baked into the international legal system from its re-emergence after World War 2. 

The ICJ ruling here is so very significant because this is the end of the era of Israel's impunity in international legal system, whatever happens, whatever happens next, actually. 

Right? So this is already very, very significant. Of course, there's some other implications to discuss, but, I just wanted to note this one. 

I think it's crucial moving forward. 

Thanks Raz. That's a really important point, you know, that the ICG ruling really brought an end to this uniqueness, as you call it. 

Kate, do you agree? Does this case draw any comparison to any other ICJ ruling, or is this really so unprecedented? 

Well, I think what Raz is saying is that it was unprecedented that it was made, this order was made against Israel. 

I mean, it comes in a very interesting time for the court, actually, where we're seeing more and more issues of global significance being taken to the court for some kind of resolution. 

So just within the genocide convention, starting with, I mean, back in the nineties, the first case was during the Yugoslav wars with Bosnia against Serbia, and then there was a, frankly, less significant case, Croatia against Serbia. 

But then recently, we've seen, of course, Gambia versus Myanmar, Ukraine and Russia, the other case, which has taken an interesting spin on the genocide convention and then this case, as well as seeing Armenia, Ukraine, in another context, bringing human rights claims against aggressor states, Azerbaijan and Israel. 

And I think interestingly, these proceedings are not confined to disputes between two states. Right.

So, we've seen third party states like South Africa bringing the case against Israel, Namibia bringing the case against Myanmar, in the case of Ukraine against Russia, 32 other states intervening on the side of Ukraine against Russia. 

In the Myanmar case, a number of third-party states intervening on the side of Gambia, and here we've also had, of course, in the South Africa-Israel case, we've had, Germany announcing that it's going to intervene on the side of Israel, and Bangladesh announcing that it's going to intervene on the side of South Africa. 

So we're seeing the International Court of Justice, being looked to play, I would say, a role that's much closer to the role that was originally envisaged for it, which was in the new dawn of, you know, the post-Genocide, post-holocaust, post-World War 2 era that Raz referred to, the idea that, you know, aggression would be outlawed and that States would peacefully resolve their disputes at the court. 

I mean, I'm not suggesting that the court is not being used for political advantage by various parties, but it's also interesting that it is being shifted towards the centre of a lot of very significant geopolitical issues at the moment. 

Sorcha, you are the Director of our Humanitarian Policy Group here at ODI. Will the ICJ ruling have any effect on the humanitarian situation in Gaza?  

It's the $1 billion question. 

I mean, clearly, the court ruling is a legal victory. It's a moral victory. But if you look at what's occurred since the ruling, it's really hard to argue that it's having any effect on civilian lives in Gaza. 

And since the ruling, we know that a 1,000 Palestinians have lost their lives as a result of the ceaseless and indiscriminate bombing. 

The UN is now suggesting that 5 per cent of Palestinians in Gaza have been killed, maimed, or missing. The Israeli forces are moving to Rafah, which is the only safe zone in the strip where hundreds of thousands of people have been sheltering. 

And international aid organizations are now estimating that one quarter of the population in Gaza faces immediate risk of starvation. 

And this was before there was the cutting off of funding to, or feeling the effects of the cutting off of funding to what is Gaza's largest humanitarian actor, which well, you know, absolutely, it threatens a complete collapse of what is a very limited humanitarian operation in Gaza. 

And this flies directly in the face of the Court's ruling, and its judgment that there had to be, you know, allowance of humanitarian relief into Gaza. 

So, on the one hand, it's you know, this is a very important case, and it's an important precedent as we heard, in terms of Israel's accountability. 

But we also see very clearly the limits of the law, and the fact that there's no enforcement mechanism. And if Israel doesn't apply with the judgment, which it clearly isn't, It's for the Security Council to enforce the decision. 

And we know that this is going to be extremely unlikely given that the US has used its veto repeatedly in relation to this current campaign, and it's actually used it 45 times since 1972 to protect Israel. 

Raz, has the ICJ ruling had any impact in Israel? How has that been received? 

I think that, we know that majority of Israelis, really follow primarily Israeli The media, which keeps them, you know, by their own choice, quite, isolated, both from the, levels, the unprecedented levels of killing and destruction, in Gaza, which is quite astounding because it's nearby. 

Right? But also from the international discourse that is now more and more Israel finds itself a pariah state, right? Isolated, also because, as we just heard, it's really not following the orders of the court. 

And, you know, it's important to mention that in two weeks' time, the report that Israel has to submit to the Court on what it did in response to its orders is due. Right. So that would be interesting to see what that will be like. 

But I think that most Israelis are, not all of them, but most of them are very much living in a different kind of, of world, a world that's really based actually on this insistence of Israel impunity, that's based on a weaponization of the holocaust. 

So they see themselves I mean, they see the, the Hamas attack on 7th October in the context of the holocaust. 

They, we know that part of the dehumanization of Palestinians in Gaza has been their portrayal as Nazis, and Israel's Israelis see themselves as the victims here, which is, we have to say, a very, it's very recognizable historically from genocides and mass atrocities that perpetrators, of course, see themselves as the people under attack. Right? And their Genocidal assault, right, as simply a matter of self-defence. So that's, I think, still a very strong position, very widespread position in Israeli politics and society today. 

Thanks, Raz. Ronak, let me come to you. Obviously, the key issue here is that arguing its case against Israel and the ICJ, South Africa has challenged the, you know, so called Western-led order. 

You know, it's really stood out for taking a stance against, you know, this, western position in support of what Israel has been doing in in Gaza. 

What do you think are the implications of, you know, emerging powers like South Africa pushing for peace and justice, you know, globally, and clearly challenging the status quo.

Thanks. I mean, I think I debate that notion that South Africa is, is explicitly challenging the western-led order.

I think I would frame it slightly differently and say that South Africa, legally, as a contracting party to the genocide convention is within its rights to approach the ICJ if it believes the convention has been violated.

And every state who's a contracting party has the right to do that, and I think that's why we have these institutional mechanisms to ensure accountability and that each country is held to a consistent standard. 

And I think from that perspective, if you look at South Africa's case at the ICJ, you know, it should be applauded for, for looking to test the legitimacy and the consistency of the international justice system. 

And that's what makes the western reaction, which kind of has kind of discredited the South African position, somewhat curious because these are the same countries that have established, set up, and stewarded the institutions that have kind of underpinned the global multilateral system since the end of the World War. 

So, I think that's the first point. I think the second point to note is that the Global South benefits disproportionately from the checks and balances which multilateral, which the multilateral rules-based order offers. 

It's designed to temper the abuses of powerful nations. And in that regard, there's a vested interest in the Global South in making sure that these instruments work effectively and that multilateralism is, is strengthened. 

But, at the moment, we have a trust deficit in these institutions. There are these perceptions of bias, perceptions that they're not fit for purpose and that's quite problematic. 

And I think, in large part, that's because Western capitals have divested a lot of their political capital from these, these institutions. 

And now I think with the fact that the global liberal order is no longer the only show in town, the Global South has really found their voice, and it's, it's pushing, and using these mechanisms to push for issues that it deems important. 

And I think that's a good thing because it can only enhance the legitimacy of these institutions.  So, despite the fact that they have flaws and they are imperfect, I think it's important that we don't throw the baby out of the bathwater. 

And I think the South African case, could actually have the effect of strengthening the international justice system by showing that the instruments of international justice serve all nations, not just the powerful ones. 

Thanks, Ronak. 

I mean, clearly, what we have seen, in sort of the run up to the ruling has been a huge divergence in the narrative landscape, you know, around the attack on Gaza, the response, you know to what happened on the 7th October by Israel. 

We've done a lot of work and sort of, thinking at ODI on this, you know, what we call the politics of narrative. 

Do you think this interim ruling will lead to more polarization or can help, you know, narrow the global gap in narratives and perspectives? 

So that's an interesting question. 

And I think the context is quite important here because this dichotomy that we've been seeing between the Global South and the Global North has been happening for a while, and I think it's reflective of the general breakdown and consensus in the international order. 

I think countries in the Global South are angry and they're disillusioned. 

They feel they're victims of problems that have been created in other regions and that they just can't catch a break. You know, if you look at COVID, a lot of countries in Africa and the developing world were subject to travel bans. They didn't get vaccines.  

The Ukraine war, you know, started in Europe, but African countries and emerging market countries became disproportionately affected by food and fuel price increases. 

Financially, a strong dollar and high interest rates in the West locked them out of capital markets. They feel the same about climate change, where they're being asked to remedy a problem that they didn't create. 

And then the same thing with the framing of the Ukraine war, which was very binary. So, there's this perception that has been building, that there's the West and the rest. 

And I think this is at the heart of the grievances that the Global South hasn't in, in general, is that the western gaze on global issues is problematic because the issues that the west deems important are deemed global issues, but everything else is a regional issue. 

And I think there's also this push towards, you know, the fact that the institutions that were created a long time ago are not reflective of contemporary global dynamics. 

We've seen this with India challenging, you know, the West’s position on the Ukraine war, continuing to buy Russian arms and oil, and exercising strategic autonomy. We've seen the BRICS expansion. 

We've seen the push for reform of the UN council. And I think in this regard, South Africa's case has had a catalytic effect, and will embolden countries of the Global South to continue to find their voice. 

Already we've seen, you know, Indonesia has bought a separate case against Israel to the ICJ. Nicaragua is taking Germany, Canada, the UK, and Netherlands to the ICJ as well. 

Chile and Mexico have referred Israel to the ICJ for war crimes. So I think polarization is quite evident, and it's not just rooted in this issue. It's in a in a range of issues. 

So, you know, from South Africa's perspective, I think it plays well because it kind of restores some of the moral legitimacy that had been lost with a lot of its clumsy positioning and policy inconsistencies over the year and established itself as a leading voice of the Global South. 

And I think also just looking at the western responses, it shows that when push comes to shove, principle is largely discarded for power politics. 

Thanks, Ronak. Kate I want to ask you, I mean, this polarization that Ronak is talking about is obviously very apparent. 

How is the court gonna navigate this? You know, obviously, we'll need to gather evidence in order to deliberate over the next months or possibly years. 

How’s it gonna navigate this global polarization?

Yeah. Well, I think we were all watching with bated breath before the order came down with exactly that question in mind. 

Right? I mean, in my view, I think the court has retained its integrity with this ruling, and I think that that is crucial if it's to perform the role that was envisaged for it, you know, to any meaningful extent. 

So, I think all of us who support rules-based international order breathed a huge sigh of relief, actually, when that ‘provisional measures’ order was handed down. 

I mean, how is it going to navigate? I think, you know, the court can't control how Its judgements are received and represented in the media. 

You know, that's not its role to do so. I think with its, you know, its truly global composition and its very methodical approach, I think it is an authoritative and ultimately helpful voice also in this duration. 

And I think just as a personal reflection, watching that evidence, the evidence of the death, destruction, and suffering in Gaza that we've all been following on social media and seen on news channels, watching that being presented in the sober and formal setting of the world's highest court, I think, was powerful.

And watching the President of the court recite that in the judgment was even more so. So, I think the court inevitably becomes part of the narrative.

All it can do is, is deliver its judgment, but I think it did this in a thoughtful and even-handed way. And, I think is, it is a helpful voice ultimately in that regard. 

Thanks. We're almost at time. 

I just want to ask all of you, what do you think we're gonna see next, in terms of the continued, you know, escalation of the crisis and the impact, I mean, of as you talked about the report that Israel needs to submit in, in a couple of weeks. 

What can we expect, and what is gonna follow? Do you want to start Raz?  

Well, I think that what we can expect, we're already seeing what we can expect. 

And, you know, I, I do think that this is a watershed moment because Israel is so central and, really, in the western identity after World War 2 and post holocaust. 

So, you know, we're already seeing this ruling obviously triggers third state responsibility because the ruling of the court responsibility to prevent  genocide, right, according to the convention, because the ruling of the court clearly signals that there is, at the very least, a risk of genocide.

Right? It really means that Israel is plausibly perpetrating genocide already, but there is certainly a risk.

So, there is then that triggers the responsibility to prevent. What does that mean? It also means that, states, cannot be complicit, right, with the likely perpetration of genocide.

So, this has an immense effect on, of course, arms deals with Israel. We're already seeing various moves to limit the shipment of arms to Israel. 

We've seen a few days ago the statement by 800 serving officials in Britain and the US who refer specifically to the ICJ interim ruling, who, mentioned specifically the issue of complicity, right, who are concerned that their government's policy, that is the US Government and the British Government's policy.

Right? Is now, may now be actually within the realm of complicity with the State perpetrating genocide.

This has effects on, for example, when, you know, I'm an academic, right, on universities, around the world who now, and we're already seeing this. There's a statement by Dutch academics, just, yesterday, if I'm not mistaken, were talking about now the fact that cutting ties officially with Israel universities because of their decades of involvement with occupation, with siege, with oppression, is now not just a matter of debate anymore, but it's matter of law because of the ICJ ruling.

So, I think that, as I said, the pressure in Israel is going to mount. Israel is finding itself as a pariah state in a unprecedented situation of isolation. 

I think this is very crucial in the struggle, as we heard, you know, for finally, you know, to really protect millions of marginalized people around the world, people who face discrimination and state violence because the system has failed them as well. 

So, this has also, I think, implications well beyond the issue of Gaza. 

And, of course, we also need to remember that there is millions of other Palestinians under Israeli control in the occupied West Bank and East Jerusalem and, of course, Israeli Palestinians.

All of them have faced an Intensifying attack in various ways since 7th October. So this is significant also in in relation to thinking about, you know, stopping and de-escalating the attack against them.

Thanks. Ronak, what's your take? 

So, I'll speak about this from a foreign policy perspective, and I think we're going to continue to see this kind of, divergence between the Global North and the Global South.

I think on the one hand we'll see continued efforts from countries in the Global South to try make the current multilateral institutions more representative, more inclusive, more fair and ensure that they have greater legitimacy.

But if that approach is not working, I think in parallel, we're going to see, kind of a shifting centre of the world.

I think we've seen the rise of emerging powers and a more assertive Global South, which is, no longer allowing itself to be dictated to by the west.

So, I think that fragmentation in the international rules based order will continue.

It might have the effect of leading to more inclusive and representative institutions, but equally, something is being built in parallel, and I think that trend will continue.  

Thanks. Sorcha? 

I think we're seeing a ratcheting up of political pressure and legal pressure and to a certain degree, diplomatic pressure on Israel, and the Western alleys that have been supporting its campaign of indiscriminate violence.

But I think if you look at what's playing across our screens on social media in real time in terms of the civilian life in Gaza today, I think we're not seeing any step change in the conduct of hostilities or the experience of a population that is really on the brink of catastrophe.

So, on what degree this will tip over into something where, you know, the campaign will be altered.

A ceasefire will actually happen. It's not clear. We know that, you know, even within the countries that have been most supportive of Israel, say, in the UK that the there is, you know, popular support for a ceasefire. 

71% of the population in the UK think that there should be a ceasefire, but that's not translating into a shift, you know, a real shift in terms of the support.

Whether the fact that there is, you know, elections across many of these countries, and western leaders will face some repercussions for their support to Israel, is yet to be seen.

But whether this kind of ratcheting up in pressure can come quickly enough for Palestinian lives. I think the answer to that has already been seen.  

Thanks. Kate? 

Yeah.

I don't have much to add, but I think I share Sorcha’s pessimism and, you know, feel quite torn about talking about positive steps towards rules-based international order, which I think this judgment was part of while also acknowledging that it's having very little effect on what's happening on the ground, which is what this is all about. 

So, yeah, I'm deeply pessimistic about what's happening in Gaza, trying to cling on to some optimism about little signs of hope in the global system. 

Yeah. 

It's definitely very hard, you know, to find sign of optimism. But, as you've all said, it is a watershed moment for a number of reasons. You know?

Clearly, because it's the first time that Israel sort of gets, sort of called up, you know, to its responsibilities as a state within the frame of the genocide convention because we see a country like South Africa stepping up as, you know, a party to the convention just generally to challenge what it sees as a perception of bias or institutions that should function better and don't.

And so, again, that's a promising sign of things to come. 

And because we see, you know, the public that actually is reacting, Although, you know, politicians don't follow in so many western countries, but it is a year of elections in so many countries, and it'd be interesting to watch, you know, what impact that will have. 

Well, thank you so much, Raz, Ronak, Sorcha, and Kate. 

This was an incredibly Informative, conversation. Thanks to our listeners. If you enjoy the episode, as always, please do like, subscribe, and rate it, and I hope you will join us again next time. Thank you.