Speaking the Law, Plausibly: The International Court of Justice on Gaza

The ICJ’s decision on provisional measures is remarkable, somewhat paradoxically, precisely not because of the measures it indicates. The measures consist, for the most part, in a reproduction of the obligations under the Genocide Convention which are important, but of course also well-known – and Israel has always claimed that it was abiding by them.

The most striking aspect of the order is then neither the measures themselves nor the fact that provisional measures have been indicated at all – as previous discussions had shown and as Marko Milanovic pointed out right after the decision was rendered, this was a largely foregone conclusion.

Most striking are instead the grounds on which they are based. It is the horrible factual evidence the decision cites – both as regards the effects of the war on the people in Gaza and the outrageous statements of Israeli leaders. With this evidence, the Court establishes a particular narrative, as Fionnuala Ni Aolain has emphasized – a narrative that can help shape the image of the conflict over time. Yet more important is that the Court’s finding that South Africa’s claim of a violation of rights under the Genocide Convention is “plausible” speaks the law: it marks out a certain interpretation as defensible, as lying in the realm of possible argument. This is somewhat counterintuitive because at this stage of the proceedings, the Court is precisely not meant to adjudicate the merits, and it also professes not to do so. In the context of genocide, however, even a finding of a plausible claim is shocking and extraordinary, and it has rightly been seized upon in media coverage of the decision. No state should even get close to the point at which an allegation of genocide becomes plausible. Whatever the eventual decision on the merits will be, this is discursively a consequential step.

The second striking aspect is the breadth of the court’s majority on this point. Given the divisions in the General Assembly and the geographical background of the court’s judges, many would have expected a continuation of political battles and thus greater acrimony on the bench. And surely there were such battles also within the majority, as shines through in the declarations of Judges Bhandari and Nolte. But the Court has managed to find common ground nevertheless, in part by also drawing attention to the Hamas attack, the fate of the hostages and the need for all parties to the conflict to respect international humanitarian law. It is reassuring that, in a fractured international society such (relative) unity is still possible.

The image of a united world is also reflected in the frequent reference to UN agencies and officials. This, too, is not to be taken for granted in a context in which the UN is much maligned and its authority constantly called into question. In the decision, the UN, its bodies, secretariat and experts as well as specialized agencies such as the WHO provide the yardstick for an assessment of the facts – obviously not conclusively, but at least prima facie. The Court (itself a UN organ, of course) sends a message of unity also in support of institutions which are today under greater threat than they have been in decades.  

The price of this image of unity is the rather vague formulation of the provisional measures themselves. Apart from the call for effective measures to enable humanitarian assistance – crucial in the circumstances of Gaza – they consist largely in a reminder of existing obligations. They do not call for a ceasefire, as South Africa had requested, and they also do not specify what Israel needs to do – and especially what it needs to refrain from doing – in order to fulfill its obligations. Greater clarity as regards the need to end forcible displacements, the massive destruction of civilian infrastructure and indiscriminate attacks in general would have been possible even if consensus on a ceasefire could not be reached. Given the finding of a plausible risk of genocide, the indication of such measures would have provided a more concrete yardstick against which to measure compliance with the general obligations under the Convention, and it may also have provided a focal point for political institutions, such as the Security Council. But on this part the Court remains cautious.

The strength of the decision is that it does what courts often do best – speak the law, establish the facts – even though this is not what provisional measures are normally about. The decision generates unity about the finding of a plausible risk of genocide in Gaza – it is primarily expressive, speaking to world public opinion in the hope to foster common understandings. In contrast, the actual provisional measures remain vague – the Court does less to specify what would need to be done to prevent irreparable harm and to shape and channel political discourses in this respect. This may be because of internal dynamics or for fear of being disobeyed. In the end, the Court speaks truth to power, but it does so rather timidly.