Today the United Nations’ highest court, the International Court of Justice, issued its first, preliminary decision in the genocide case South Africa brought against Israel.
South Africa won its application for “provisional measures,” roughly equivalent to a temporary injunction, ordering Israel to take proactive steps to ensure genocide doesn’t occur in the future, while the broader case is pending.
But the court declined to order the immediate cease-fire that South Africa requested. Instead, it ordered Israel to prevent its forces from committing or inciting genocidal acts, and to enable humanitarian assistance and basic services in Gaza. It also said it was “gravely concerned” about the fate of the remaining hostages abducted by Hamas and called for their “immediate and unconditional release.”
Israeli officials, who have strongly denied the genocide accusation, denounced the provisional measures order, but expressed relief that the court had not ordered a cease-fire.
So what does the decision mean? And what might happen next? “People tend to have a really bifurcated view of what this court is and can do,” said Kate Cronin-Furman, a professor at University College London who studies accountability for mass atrocities. “Either they think the U.N. will be coming in with black helicopters to enforce orders, or they think the judgments of the court are just empty words with no impact.”
The reality, experts say, is somewhere in between. The court has no direct enforcement powers, helicopter based or otherwise. But a decision like this can still have an impact by shifting the political calculations of the countries involved — and their allies.
Not a final decision
The first thing to note about today’s order is that the court has not decided whether Israel is committing genocide in Gaza. A final decision on that question is likely years away. Nor should South Africa’s partial victory be viewed as a sign that the court will necessarily rule in its favor later on: The requirements for winning a genocide case on the merits are much more difficult to meet than the low threshold for provisional measures.
Second, the court’s order was in line with what most legal experts had anticipated.
“I don’t think anyone expected them to order a cease-fire,” Cronin-Furman said. “I think the court would not have wanted to be seen to be ruling on the legitimacy of Israel’s claimed right of self-defense, which is how many would have read a call for suspension of hostilities.”
Instead, the judges “stuck pretty closely to what they did in the provisional measures order in Gambia vs. Myanmar,” Cronin-Furman said, referring to another case pending before the court, in which Gambia accused Myanmar of genocide against its Rohingya minority.
There is precedent for the court ordering an immediate cease-fire: It did so in 2022, after Ukraine brought a case against Russia under the U.N. Genocide Convention.
However, that case was very different. One sovereign state using force to take over another, as Russia tried to do in Ukraine, is one of international law’s most significant taboos.
By contrast, under international law, states are allowed to use force in self-defense after an attack like the one that Israel suffered on Oct. 7, when Hamas-led militants stormed across the border from Gaza, killing about 1,200 people and taking about 240 others hostage, according to Israeli officials. Ordering Israel to halt this war would have been a much more significant step than ordering Russia to cease its hostilities in Ukraine.
After today’s decision was announced, some commentators speculated that the court might have refrained from ordering a cease-fire because it would have damaged the court’s standing if Israel did not comply.
However, none of the legal experts I spoke to raised that as a likely explanation.
And it’s worth remembering that the court’s standing has survived past instances when states completely ignored its orders, including in 2022, when Russia refused to comply with the order to cease hostilities in Ukraine.
Michael A. Becker, a law professor at Trinity College, Dublin, said that it “was not surprising that the court did not accede to South Africa’s request for a complete suspension of military activities.” But he added that the wording of the court’s decision was “striking” for the emphasis it placed on the humanitarian crisis in Gaza, where more than 25,000 people have been killed, according to Palestinian health officials.
“The court also gave short shrift to Israel’s arguments that it was already taking steps to alleviate the humanitarian crisis and to address instances of alleged incitement to genocide,” he said.
Ultimately, the order’s political impact may be more important than its specific content.
“An order from the I.C.J. can’t do much to shift the incentives of a state engaged in a military campaign that its leaders feel is imperative to protecting its national security,” Cronin-Furman said. “But it can make allied governments think twice about their support for that campaign.”
On Friday the European Union said it expected the “full, immediate and effective implementation” of the I.C.J.’s orders, noting that such orders “are binding on the Parties and they must comply with them.”
Human rights organizations were quick to press for further action. “The Court found a plausible risk of genocide & the U.K. has an obligation to prevent genocide and not be complicit,” Yasmine Ahmed, the U.K. director of Human Rights Watch, wrote on X shortly after the court issued its decision.
However, the United States, Israel’s most important ally, issued a statement saying: “We continue to believe that allegations of genocide are unfounded and note the court did not make a finding about genocide or call for a cease-fire.” (Previously, John Kirby, a U.S. National Security Council spokesman, said that the I.C.J. case was “unfounded,” while Secretary of State Antony Blinken had called it “meritless” and “counterproductive.”)
Many countries have domestic laws that prohibit military support to governments that violate human rights, Becker said. “Because the court’s decision can be understood to mean that the situation in Gaza at least raises serious questions about a risk of genocide, this has the potential to trigger legal obligations under domestic law relating to the provision of military support to Israel,” he said.
The court’s willingness to recognize the scale of human suffering in Gaza, and to emphasize that the humanitarian situation should not be allowed to deteriorate further, could change the political narrative about the conflict, he argued, creating new space for political action.
On the other hand, Israel’s reaction to the court’s decision pointed to an alternative perspective. Prime Minister Benjamin Netanyahu said the court order had upheld Israel’s right to protect itself. “Like any state, Israel has the basic right of self-defense. The court justly rejected the disgraceful demand to nullify that right,” he said.