One of the advantages of being a pessimist is that being wrong is a positive event. Like Norman Finkelstein, I had worried that there was still enough fear of crossing the US that the International Court of Justice jurists would use shortcomings in how South Africa had teed up its case procedurally to demur, at least until South Africa tried again. The other end of the spectrum that yours truly had anticipated was that the Court would rule significantly for South Africa by supporting its provisional measures calling for humanitarian relief, provision of medical services, and similar requirements, as well as less controversial but important steps like the preservation of evidence but not constrain the Israeli army, as South Africa had also sought via asking for a ceasefire.
I am basing this post on notes taken from the live presentation, where President Joan Donaghue read most of the ruling verbatim. We have embedded the video below and [in a 9 AM EST update] have added the text of the order.
Of critical importance, and a huge smackdown to Israel, is the Court came as close as it reasonably could to calling for a ceasefire in ruling for the provisional measure (which it devised itself) for Israel to cease military action against Palestinians as members of a protected group under the Genocide Convention.1 I had opined that the Court could not call for a ceasefire since it could not bind Hamas to comply. It would not be sound or shrewd to give Israel an easy pretext for defying the court by saying that a one-sided ceasefire would leave it defenseless. But impressively, the court went as far as it could, and way way further than I expected, in constraining Israel military operations against the Palestinian population.
Experts will soon opine but I assume this would still allow Israel to pursue Hamas members if it could do so without violating the Genocide Convention. This was 15 to 2, with the only dissents Uganda and the ad hoc judge from Israel.
The Court also implemented a measure which sounded like, and may have indeed been, the third requested by South Africa<,3 which I thought the Court would likely not implement as pretty much amounting to a reiteration of Israel’s existing obligations under the Genocide Convention. Including them came off as an additional rebuke as well as serving for further grounds for ruling against Israel in the upcoming trial if they continued to act wantonly against Palestinians.
It was not all that far into President Donaghue’s reading of the ruling that it was clear the Court had not even slightly bought what Israel was selling. I was surprised to see the Court rely on an Israel FAQ from its Foreign Ministry as the basis for Israel having responded to South Africa. As we pointed out earlier, these sort of media communications are normally not considered to be formal responses. But perhaps in this era of intense narrative management, those boundaries may have shifted somewhat. But the noteworthy part was not the Court’s conclusion here but that it didn’t deign to dignify Israel’s attempt to dispute the dispute by mentioning its arguments,
Instead, the Court spent a great deal of time on facts and Israel’s unabashed conduct. It was very far into the recitation that the ruling stooped to address one of Israel’s lame defenses, that they had provided humanitarian aid and the Attorney General, very late in the game, fingerwagged officially about not trash talking Palestinians. The text barely politely brushed that aside, saying that was inadequate.
I would need to read the ruling against earlier material (and remember each side did submit further backup) but the Court clearly went beyond what both sides provided. For instance, the ruling referencing findings from UN officials and agencies after January 12, when Israel made its oral argument. The Court appeared to give very heavy weight to the many dehumanizing statements made by Israel official (and again, my impression was the judges went beyond the ones provided by South Africa) and the findings of UN officials and agencies on the horrific conditions in Gaza.
In addition to requiring Israel to provide aid and services, stop dehumanizing Palestinians, and quit destroying infrastructure, the provisional measures included the preservation of evidence and requiring Israel to make a written report to the Court in a month on what it was doing to comply with the provisional measures, with South Africa then having the opportunity to comment on the report.
We’ll post the actual order shortly after it is up on the Court’s website. I may also add some hot takes from the Twitterverse. It will be interesting to see how the MSM organs like The Economist, which had vigorously defended Israel, and even more so Tony Blinken and Biden, try to ‘splain this outcome. It will be even more reveling to see how Israeli politicians and its press try to rationalize this ruling when the vote on every count were so lopsided, and even the US jurist and expected stalwarts like Australia did not side with Israel on any of the provisional measures.
Update 9;00 AM EST: Here it is, over an hour since the ICJ presentation, and I have yet to see a newsflash in my e-mail inbox from The Hill, the New York Times. or other usual suspects. It appears porcine maquillage is in short supply.
1 From the South Africa’s December 29 application:
(1) The State of Israel shall immediately suspend its military operations in and against Gaza.
(2) The State of Israel shall ensure that any military or irregular armed units which may be
directed, supported or influenced by it, as well as any organisations and persons which may be
subject to its control, direction or influence, take no steps in furtherance of the military
operations referred to point (1) above.
2 From South Africa’s December 29 application:
3) The Republic of South Africa and the State of Israel shall each, in accordance with their
obligations under the Convention on the Prevention and Punishment of the Crime of Genocide,
in relation to the Palestinian people, take all reasonable measures within their power to prevent
____00 Order of 26 January 2024 - 192-20240126-ord-01-00-en