Justice and sobriety in The Hague

With her usual sobriety, the president of the International Court of Justice (ICJ), Joan E. Donoghue, read a very important ruling in the matter relating to the application of the Genocide Convention in the Gaza Strip, raised by South Africa. In essence, the ICJ, by 15 votes to 2 — the vote of the Ugandan judge was incomprehensible, Israel’s was foreseeable — has ordered Israel to take the following measures: to prevent the commission of acts of genocide in Gaza, to take the necessary measures to prevent and punish acts of public incitement to genocide, to allow the entry of humanitarian aid, and to preserve and not destroy evidence.

Reactions have come in from foreign ministries, from NGOs and from social media platforms. Some media have described the decision as a South African success. Certainly, it is, but it is a provisional success, because the Court’s decision does not mean that its jurisdiction over the case, the admissibility of the claim, or the merits of the matter are a foregone conclusion. Others, on the contrary, had been hoping that the main measure requested by South Africa would be ordered: the cessation of Israeli hostilities. But this claim went too far, since the Genocide Convention does not prohibit hostilities as such, even when international humanitarian law is allegedly being violated. What this Convention prohibits is the commission of acts, typically carried out in a context of hostilities, but with a very specific intention: to destroy “in whole or in part” a group identifiable in its national, ethnic, racial or religious characteristics. In this regard, the ICJ’s jurisprudence is very demanding, since in the absence of direct evidence of a genocidal plan, the plaintiff must demonstrate that said intention is the only possible one that can be inferred from the facts.

In assessing this decision, it must be remembered that the Court has ordered measures very similar to those directed at Myanmar in the matter relating to the alleged genocide against the Rohingya. Furthermore, the Court has spent more time than usual in detailing the dramatic situation experienced by Gazans, based on expert reports. Add to this that it has ordered a measure, not requested by South Africa, of great importance: that Israel take “immediate and effective” measures to allow the passage of humanitarian aid to the Gaza Strip. Finally, the Court has sent a “message” to the parties to comply with their international obligations in the course of the conflict, and to Hamas to release the hostages.

It is still too early to assess the real impact of this decision. But it is worth asking whether it is an indicator of the future success or failure of the South African lawsuit (if this matter reaches the merits phase). In my opinion, nothing changes. It is important to reiterate: for now, the Court has only determined that the rights invoked by South Africa are “plausible;” that is, they have the possibility of basing a favorable ruling on the merits. We will have to wait, therefore, for this phase before making a definitive analysis. Before that happens, we will probably hear more racy public statements, see more horrendous videos, and read more worrying reports. On the other hand, third States will intervene in the procedure and there will be expert evidence, expert reports and victim statements discussed in detail.

One thing is certain: South Africa has already put Israel in front of the mirror of its own actions. What’s more, it has prompted the Israeli attorney general to call any public statement that incites harm against civilians in Gaza “criminal.” For this fact alone, the South African initiative deserves to be praised. There are 153 States in the Genocide Convention: only one has risked suing Israel.

The cases before the Court relating to the Genocide Convention present a very high emotional tension. When in 2007 the ICJ read its ruling regarding a Bosnian claim against Serbia (concluding, among other things, that Serbia was not responsible for the genocide in Srebrenica), a Bosnian victim tore up the text of the ruling before the judges. This type of reaction is foreseeable when everything is played to one card: in the absence of other relevant international treaties that grant it jurisdiction, the Court can only determine whether or not there was genocide, but not crimes against humanity or war crimes. A dismissal ruling is perceived by the plaintiff as a humiliation; an upholding judgment is an insult to the defendant.

Whatever the outcome of the Gaza issue, we must not lose confidence in the highest judicial body of the United Nations. With its successes and errors, it is supported by almost eight decades of rigorous work and universal geographic representativeness.

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