The court sidesteps South Africa’s demand to order Israel to immediately cease military operations to focus on aid, experts say
Katherine Hearst is a writer, film maker and organiser
Cross-posted from Middle East Eye
To many, the International Court of Justice’s (ICJ) order on Friday for Israel to prevent acts of genocide in Gaza and allow aid to flow into the Palestinian enclave was an important legal and moral victory. Yet for others, it did not go far enough.
In bringing the case accusing Israel of committing genocide in Gaza, South Africa called for nine provisional measures. Though many were taken by the Hague-based court, the key demand for an immediate ceasefire was not. Why?
According to experts, the prospect of the court demanding a ceasefire was always unlikely due to Israel’s contested right to self defence in an occupied territory.
“I never thought the court was going to go as far as to order a ceasefire,” Juliette McIntyre, a lecturer in law at the University of South Australia, told Middle East Eye.
“The court is saying we can’t get into the question of the full extent of [Israel’s] rights of self-defence. So we are not going to say anything about a ceasefire,” McIntyre said.
The term “self-defence” was notably missing from the ruling, with measures focused on addressing the deteriorating situation on the ground in Gaza.
“The heart of South Africa’s case… is creating conditions of life or creating conditions that are incompatible with life,” McKintyre said.
While South Africa has hailed the ruling as a “decisive victory,” its foreign minister, Naledi Pandour, said that she wanted the court to explicitly call for a ceasefire.
And many Palestinians – particualrly in Gaza – have found the ruling bittersweet.
Mohammed el-Kurd, a writer from occupied East Jerusalem said on X: “The ICJ has failed to implement South Africa’s first and most important requested provisional measure: ‘the State of Israel shall immediately suspend its military operations in and against Gaza.’ Not shocking, but stings nonetheless.”
In Gaza, journalist Hind Khoudary said the ICJ and the world had “failed Palestinians again”.
Yet others have suggested that it is impossible to enact the interim provisions dictated by the ICJ – such as that Israel must take all measures within its power to prevent violations of the Genocide Convention, including killing Palestinians – without implementing an immediate ceasefire.
“How do you provide aid and water without a ceasefire? If you read the order, by implication a ceasefire must happen,” Pandor said outside the court.
Israel’s largest human rights group, B’Tselem, agreed.
“The only way to implement the orders issued today by the International Court of Justice in the Hague is through an immediate ceasefire. It is impossible to protect civilian life as long as the fighting continues,” it said.
“Tens of thousands killed, over a million displaced, Israelis held hostage in the Gaza Strip, hunger and a humanitarian catastrophe – all oblige Israel to stop the fighting.”
Oona Hathaway, a professor at Yale Law School, said though commentators had noted there was no demand for a ceasefire, the ICJ “got as close to doing so as it was ever reasonable to expect it would”.
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