The Just Security Podcast

ICJ Provisional Measures in South Africa v. Israel

January 26, 2024 Just Security Episode 53
ICJ Provisional Measures in South Africa v. Israel
The Just Security Podcast
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The Just Security Podcast
ICJ Provisional Measures in South Africa v. Israel
Jan 26, 2024 Episode 53
Just Security

On Friday, January 26, the International Court of Justice issued its Opinion granting provisional measures in South Africa’s genocide case against Israel.  At this early stage of the proceedings, the Court did not determine whether Israel’s conduct amounts to genocide – that potential determination is left for what is known as the “merits” phase of the case, which will likely occur years from now. 

Instead, today the Court held that Israel’s actions to minimize harm to civilians did not sufficiently remove the risk of irreparable harm and ordered Israel to take specific actions including refraining from acts under the Genocide Convention, preventing and punishing incitement to genocide and taking effective measures to allow for the provision of humanitarian assistance, among others. 

Joining the show to discuss the Court’s Opinion and its implications are law professors Adil Haque, Oona Hathaway, and Yuval Shany. They have each written extensively about the case and its potential impact, including on Just Security. 

Show Notes: 

Show Notes Transcript

On Friday, January 26, the International Court of Justice issued its Opinion granting provisional measures in South Africa’s genocide case against Israel.  At this early stage of the proceedings, the Court did not determine whether Israel’s conduct amounts to genocide – that potential determination is left for what is known as the “merits” phase of the case, which will likely occur years from now. 

Instead, today the Court held that Israel’s actions to minimize harm to civilians did not sufficiently remove the risk of irreparable harm and ordered Israel to take specific actions including refraining from acts under the Genocide Convention, preventing and punishing incitement to genocide and taking effective measures to allow for the provision of humanitarian assistance, among others. 

Joining the show to discuss the Court’s Opinion and its implications are law professors Adil Haque, Oona Hathaway, and Yuval Shany. They have each written extensively about the case and its potential impact, including on Just Security. 

Show Notes: 

Paras Shah: Hello and welcome to a special episode of the Just Security Podcast. I’m your host, Paras Shah. On Friday, January 26, the International Court of Justice issued its opinion on provisional measures in South Africa’s genocide case against Israel.  At this early stage of the proceedings, the Court did not determine whether Israel’s conduct amounts to genocide — that potential determination is left for what is known as the “merits” phase of the case, which will likely occur years from now. 

Instead, today the Court held that Israel’s actions to minimize harm to civilians did not sufficiently remove the risk of irreparable harm and ordered that Israel to take specific actions, including refraining from acts under the Genocide Convention, preventing and punishing incitement to genocide and taking effective measures to allow for the provision of humanitarian assistance, among others. 

Joining the show to discuss the Court’s opinion and its implications are law professors Adil Haque, Oona Hathaway, and Yuval Shany. They have each written extensively about the case and its potential impact, including on Just Security.

Oona, Adil, Yuval, thanks so much for joining the show in what I'm sure is a very hectic day. Let's dive right into the discussion. I just want to start by setting up a few points, which are that this is still in the very early lifecycle of this case. And at this point for provisional measures, South Africa's burden of proof is quite low, the Court did not need to find that the rights that South Africa is seeking to protect definitively exist, just that they're plausible, and we can talk about plausibility. And by contrast, at the merit stage, the court will impose a much higher burden on South Africa. It’ll to show that the only inference that can be drawn from the accent question is genocidal intent, but with these framing points in mind, what strikes you most about the Court's opinion today? 

And Oona, let's start with you.

Oona Hathaway: Yeah, I was really struck by the decision. It was as much as I thought South Africa was likely to get. This was a pretty overwhelming decision, I think, in favor of South Africa's case. They found that South Africa has standing under the erga omnes partes standing doctrine, which reaffirms that doctrine which the Court began with The Gambia v. Myanmar case, also for violations of genocide. It found that it had jurisdiction under the Genocide Convention, that there was a dispute under the Genocide Convention. It found that there was, that there were plausible claims of violations of the Genocide Convention, and found that there was a need for provisional measures in order to preserve the rights of the parties, and then issued a number of orders that are quite significant, including requiring access for humanitarian aid and assistance, requiring that Israel take steps to prevent incitement to genocide, and a number of other measures. 

Commentators are noting that they didn't order a ceasefire. I myself don't think that was ever on the table realistically, even though that was in South Africa's application originally. I just don't think that that was ever likely to be granted in full. But there's a lot more here than I think anyone had a reasonable right to expect. 

What's also notable is that, even — so there were two votes against several of the provisions of the order, one of them being the Israeli Judge Aharon Barak. But even Barak voted in favor of portions of the order. So that was, to my mind, striking, and the entire order had the support of at least 15 judges of the Court. So, this is a pretty overwhelming decision by the Court, that there were plausible claims of violations of the Genocide Convention. And, ordering, these pretty, pretty significant orders, not everything, maybe, that some might have hoped, but I think what some hoped might not have been particularly realistic. So, this was, I think, a pretty overwhelming victory for South Africa. In this case, of course, it is, as you said, the kind of opening act, but it's a pretty significant opening act. 

Paras: Thanks so much. Adil, Yuval? Would either of you like to weigh in?

Adil Haque: Sure. So just to underscore the significance of the findings of plausibility of rapes, and real risk of irreparable injury to the rights protected by the Convention — these should have implications for both the duty of third states to prevent genocide, as well as the duty, if that's what we should call it, not to be complicit in genocide. So, it puts third states on notice that if they provide military or other support to Israel, that this potentially could implicate their own obligations under the Genocide Convention as well. And also, on kind of a political level, it cuts against claims by Israeli, U.S. and U.K. officials that South Africa’s claims were baseless, meritless, libelous and so on. You know, a clear majority of the Court disagrees with that. 

With respect to the provisional measures ordered, I agree with Oona that South Africa’s request that the Court order and immediate suspension of military operations by Israel was probably not likely to be granted. But I do want to point out a tension, I think, within the Court's orders. So, I think the Court absolutely correctly issued orders related to humanitarian access, and this is essential because of the primary risk of group destruction for the Palestinians of Gaza comes from the humanitarian crisis, from famine and disease, and the inability of humanitarian relief to reach where people need it, rather than from the bombing campaign itself. So, I think the order recognizes that it's primarily the conditions of life calculated or tending to destroy the group as a whole, that is at the core of South Africa’s claims. 

But, South Africa also claimed that the reason why a suspension of military operations must be ordered is that only a suspension of military operations will allow humanitarian relief to get where it needs to go to prevent famine and further death from disease and infection. And, I think the Court should have addressed that argument and explained why they didn't think the humanitarian crisis warranted a suspension order. Failing that, it would have been good to see some judges writing in separate opinions, explaining why they did not personally support that type of order despite the relationship with the humanitarian crisis. 

And a final note, at the very end of the Court's judgment, they affirm that both Hamas and Israel are bound by international humanitarian law. And in particular, they say that Hamas should immediately and unconditionally release all hostages. And I wholeheartedly support the Court making that statement, even though it's not technically a statement under the Genocide Convention. However, if the Court is willing to go beyond the four corners of the Genocide Convention, at least, in making statements to the public — not unnecessarily codified in orders — it is remarkable that they made no such statement regarding even the desirability of a ceasefire to facilitate humanitarian relief and prevent humanitarian catastrophe. So, while I agree with Oona that a unilateral order to suspend hostilities was probably unlikely, I think the Court should have done more either collectively or individually, to explain to the world, to the public, why it did not go that far in this case.

Yuval Shany: Right. So, I don't fully agree that this is a win for South Africa, I think it's more like a draw. Using the win-lose metaphor, I agree that it was quite unlikely that the Court would order the cessation of hostilities. Although this was for Israel, this was the main concern with the case, and that South Africa — so this was the big holy grail or the big prize that South Africa didn't get. I think it was also quite unlikely, and very few commentators were willing to bet, that the Court would throw away the case altogether or refuse to issue provisional measures at this stage, given what's at stake and given the very dire situation that is actually unfolding in Gaza. So I think what the Court eventually did was split, split it in half — split the baby in half, so to speak, and didn't grant both parties the more extravagant legal remedies that they sought the dismissal of the case, or the cessation of hostilities. 

I would say on the other points very quickly on erga omnes, Israel did not contest erga omnes, so that was actually not really, not really debated. With regard to the actual measures, I think that for Israel — with the exception of one measure that we can discuss, and that is the report — effectively what the Court follows here is what it did in the Myanmar case, and that is, essentially reiterate for the parties their obligations under the Genocide Convention. So, at least from an Israeli standpoint, it has been instructed by the Court to do what it is already legally obliged to do, and what it claims to be doing. So, in terms of the actual whether this is going to change much operationally at an immediate level — probably not so much. And therefore, I think the Israelis, I mean, the Israeli government is somewhat relieved with this outcome. 

Of course, the other aspect, which the fact that the claims, like both of you said that the claims are, I mean, the finding of plausibility, which is, of course, politically embarrassing for Israel, I will just note that even here, actually, the language of the Court used was quite weak. So, if you look at the actual decision, the Court takes the view that at least some of the claims brought forward by South Africa are plausible, without actually clarifying which of the claims are plausible. And this, at least, gives Israel some maneuver room to contest the implication of the finding of the Court with regard to the main claim that Israel is concerned about, and that is the commission claim. And indeed, when you look at the decision by Nolte, this is effectively, as the judge noted, this is effectively the lines that he takes ,that the most plausible claim, well, the one claim that he considers to be most plausible is the incitement claim. And this is, indeed, also the remedy with regard to which even Justice Barak was willing to support. So, I guess, given everything that could have happened, it could have gone much worse for Israel. It's not seen as a major defeat at the Court.

Oona: I would just take issue with one element of what Yuval just said, which is, I don't think that Israel could with a straight face say that this just says that it has to keep doing what it's been doing. The allegations here, and what the Court has found, is that there are plausible claims of violations of the Genocide Convention, and it has issued orders that seem to imply — though I think you're right, don't explicitly say — that part of the plausible claims here are actual commission of genocide, not simply incitement to genocide, and specifically lists particular acts that are clearly of concern to the Court: killing members of the group, causing serious bodily or mental harm to members of the group, directly inflicting on the group conditions of life calculated to bring about its fiscal destruction, in whole or in part, and opposing measures intended to prevent births within the group. Those are specifically listed by the Court in its order. And, I think there's an implication here that it found possible claims that in fact, those things were happening, and that if they were, in fact, happening, that that those would be in violation of the Genocide Convention, in addition to the other measures, including preventing direct public incitement to commit genocide, and taking effective measures to enable the provision of urgently needed basic services and humanitarian assistance, which even Aharon Barak, the judge, former Chief Justice of the Israeli Supreme Court and and judge ad hoc appointed by Israel in this case, found in favor of that provision. 

So, this is pretty stunning, and I think I would be careful about minimizing what the Court has found here. And, I think if Israel tries to say that it can keep on doing what it's been doing, and be in compliance with international law after this decision has been issued, I think it will meet with significant and probably appropriate criticism from the international community for doing that.  

Adil: Just to add, I think we need to treat the separate opinions with a bit of caution. There is a reason why these judges are writing separately. And while Judge Nolte did focus on essentially the risk of future acts of genocide or incitement to commit genocide, rather than claims that acts of genocide have already occurred, due to his questions about the presence of genocidal intent, it's very important that in the judgment itself, the Court says, that the Court considers that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders has its final judgment. And really the center of the irreparable injury section of the decision really focuses on that. It's the circumstances of life, which at least will tend to result in group destruction, if not prevent it. 

So, I agree with Oona that the message here should not be that Israel can continue doing what it's doing, but rather than much of its conduct is raising extreme concerns among the Court, that it is potentially violating the Genocide Convention. So, I think those are really the things to focus on. And I think that the ICJ case, you know, maybe fades into the background a little bit, and the language of international humanitarian law comes back into the fore, the language of war crimes comes back into the fore, these same considerations, I think, should be the center of the discussion.

Yuval: Of course, the nature of these proceedings is such that the Court does not establish any findings. So, when you have basically the Court not going beyond any international obligation that the state already has in international law, I mean, whether the — and the Court not establishing any finding, expressing concern, yes, there would be, of course, concern. There should be legitimate concern about what's happening. But the Court has not made any finding and did not require specifically Israel to do something that is not already legally required to do, and didn't really specify any obligation, maybe other than the reporting, which we can, which we can go back to. And since the position of Israel has been consistently that it is complying with its obligations, not only on the under the Genocide Convention, but under every norm of international law to which it is bound, I don't really see the bridge, the policy bridge, by which the decision in and of itself is going to change much. 

I mean, what could happen, of course, is there's going to be some reaction by allies of Israel, maybe some international bodies, maybe the Court itself, through their reporting would basically hold Israel to a closer scrutiny, although the scrutiny has been already quite intensive. But I don't think, I think that the main concern for Israel going into this proceeding that the orders would require it to do things that would be difficult for it to undertake within its policy, vis-à-vis the war, and that hasn't happened. So, this is why it is not seen as a major loss or a loss at all in Israel.

Oona: I guess I just — I find that puzzling, in all honesty. So, I mean, the idea that the Court would have ordered Israel to do something it's not legally bound to do was never on the table. I mean, the role of the Court is not to make up the law, or to somehow impose new obligations on a party, but in fact to say that they have to follow the law, and to find that there's plausible claims that they're not doing so. And that's exactly what the Court has done here. It has said there are plausible claims that Israel is violating the Genocide Convention, and it's issued a series of orders that are meant to respond to those concerns. I don't, I guess, I just am puzzled by what you're saying, that somehow it's a win for Israel, that it wasn't told to do something that is not legally obligated to do, but I don't think that was ever something that possibly could have been on the table for the Court.

Yuval: South Africa requested very specific things. I mean, they requested the end of hostilities. They have requested the introduction of fact finders, the Court in the Armenia case, in the Azerbaijan case has made very specific orders with respect to access movement of humanitarian convoys in the Lachin corridors. So there have — and even here, there were some requests regarding the movement of population within from the south to the north. So, the level of generality of the measures, this is effectively the point, the fact that the measures remain at the level of generality that would allow Israel to maintain that the policy that it is already undertaking falls within the four corners of the measures —— this is, I think, the critical thing from Israel's point of view. 

Adil: One small point. So, when I read the Court's order with respect to humanitarian relief, my immediate thought was, well, this just maps on to Israel's obligations under international humanitarian law. But then, of course, I remembered that Israel has a rather unique view about its obligations under international humanitarian law, and it seems to me that the Court's order would compel Israel to do things that it does not regard itself as obligated to do. So, Israel takes the view that it is not the occupying power in Gaza. So, it has no obligation to ensure the basic needs of the population, and they believe that they can deny humanitarian access if there's reason to fear that consignments will be diverted from civilians to their adversary. That view has been pretty resoundingly rejected by states in the General Assembly and elsewhere. 

And now, the Court is at least saying that Israel cannot act on its on its view. It must take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip. So, that is at least a divergence between the Court's order and Israel's interpretation of its legal obligations.

Yuval: So, Israel would argue that enable provision is exactly what it does, that it actually goes even below what it actually does, in terms that it actually now facilitates provision, not only enables. So, there will be — the level of generality and the level of ambiguity, I think this is critical to trying to understand what is going to be the actual effect of the order. And I think the actual effect is not going to be dramatic. 

Oona: I just have to say that I don't know how one can come to that conclusion after reading this decision in full, because the Court details, in pretty significant and painful detail, much of the horror that's unfolding in Gaza, you know, quoting a number of international organizations, around a variety of facts about what's happening on the ground, that the health care system in Gaza is collapsing. That conditions are, you know, that people are don't have access to food, the WHO has estimated 15% of women giving birth are likely to experience complications, that the Courts recall Israel’s statements taking certain steps to alleviate the conditions, but clearly doesn't find that those are sufficient. And it says they are insufficient to remove the risk that irreparable prejudice will be caused before the Court issues its final decision in the case. 

So, I just don't see how one can — I mean, look, if you read the final order in isolation from the rest of the decision, I suppose one could say, well, Israel continues to maintain it's already doing that. But I just don't see how Israel could maintain that position in light of everything else the Court says and the decision before it gets to its order. So, and the fact that it's not specific actually, arguably could be read to make it broader in terms of the obligation, it's imposing in Israel. It's not simply saying that certain humanitarian convoys have to be given access, but that Israel has to take pretty extensive steps to ensure that it's not engaging in the violations that South Africa has alleged, that the Court has found to be plausible violations of the Genocide Convention. So, I just, I hope that Israel doesn't read the case the way that you're suggesting that they might read it, because I think if they do, that we're going to be setting up a showdown between the Court and Israel over whether it has followed the provisions of the Court. And I think it will be found to be in violation when it has to file that report because, you know, you've got 15 judges across the board who are finding this, and I think you might get a couple of judges who might share that view, but I don't think you're going to get more than that. So, I hope Israel is not reading it that way, because I think if they do, it may lead them to take inadequate action and response to this decision. 

Yuval: Could be the case. There could be a showdown down the road, but like you said, Oona, the framework is not the irreparable harm, the framework is the legal obligations, and Israel would maintain that it is bound to deal with the irreparable harm within the confines of its legal obligations. And, and the order hasn't changed this understanding. But, you may be right that the expectations are maybe to do more than what is legally required.

Paras: Just to pivot. The Court's opinion is not appearing against a blank slate. There will be political reactions to the opinion. What should we look for there? For example, should we be looking for how states might respond with their security assistance?

Oona: I think that a number of states are going to have to look pretty closely at whether they can continue to provide security assistance to Israel. So, the Court’s finding that there's plausible claims of violations of the Genocide Convention puts it to states that are providing support to Israel, whether they might themselves be in violation of the Genocide Convention by virtue of continuing to provide support to Israel in the conflict. The Genocide Convention, after all, not only creates an obligation not to aid and assist violations of the Genocide Convention by acting, by providing assistance to a state that is maybe itself committing genocide, but it also creates an affirmative obligation to act to prevent genocide. And so, this is an even stronger obligation than we see in most international agreements. It's part of the reason the U.S. in the past has been reluctant to call things that are transparently a genocide a genocide, because it triggers a whole host of positive obligations on the state to act. 

So, I think it is going to cause a flurry of activity internal to the U.S. government and other states that are providing support to Israel. And I think they're going to have to think carefully about whether they're putting themselves at significant legal risk by continuing to provide support if Israel doesn't substantially change the way in which it's waging this conflict. 

Yuval: I don't disagree with Oona on this one. This defining the plausibility, despite the weak language, in paragraph 54 of the decision in that they actually left it open which violations have been committed. And of course, there is a big difference between committing genocide and inciting, and not dealing effectively with individuals that incite to genocide. The finding of plausibility is certainly going to make things more challenging for Israel going forward with the war. 

The half full part of the glass from Israel's point of view is that the fact that the Court didn't, didn't accede to the measure requested by South Africa. To stop the proceedings is already seen by the Israelis as a vindication of their right to self-defense, and they will probably make the case that the Court has implicitly endorsed the right to self-defense and hence, refused to issue a Russia-Ukraine type of order in this specific provision. And I'm not sure, you know, how many people this will convince around the world. But, again, from the Israeli point of view, this could have been much worse had the Court also put in doubt the very legality of its military campaign.

Adil: So, I agree with Yuval, I'm not sure how convincing that will be around the world. But it is striking that the Court makes no express, gives no real explanation for why it doesn't order a suspension of hostilities or a ceasefire. And Judge Nolte is the only one I believe who mentions it, in his separate opinion, simply saying that the Court doesn't need to engage with these broader issues of self-determination and self-defense. So, there's really no basis to suggest that the Court is in any way endorsing Israel's overall military campaign.  

I think it's important to remember that the Ukraine versus Russia order was unprecedented. Two years ago, an order like the one we saw today would have been viewed as a, you know, as a victory for the applicant. It's only against the backdrop of Ukraine versus Russia that it's disappointing to some people. And there, of course, you know, there are a variety of important differences between the Ukraine versus Russia case and this one, both about the nature of the rights alleged and also the ability of the Court to bind both parties to the conflict. So, I understand why people are disappointed that the Court didn't issue a suspension or ceasefire order here. I'm disappointed as well. But, I think it is important that that does not imply an endorsement of the military campaign as a whole.

Oona: I think, you know, it's important to remember that this is very different from the conflict between Russia and Ukraine. The conflict, the U.N. General Assembly, by the time the Court issued its opinion, had condemned the invasion as a clear violation of the U.N. Charter under Article 2(4) by a vote of over 140 states, with only four states voting with Russia against that provision. It was clear from the beginning that that was an unlawful war. And I think the Court here has a very different — that was not really on the table, in the sense that here, the question is not whether the war is unlawful. I mean, in that case, Ukraine was saying that Russia’s invocation of a claim of genocide as a basis for this unlawful war was itself unlawful, and that it wasn't a proper justification for the conflict. And that was sort of how they got into Court, which is this kind of interesting backhand way because they were saying that Russia claiming genocide as a basis for the conflict is unlawful and that was the basis for the dispute and so kind of appropriately in front of the Court. 

Here, it’s very different. Here, I don't think anyone disagrees that Israel has a right to defend itself. And to the extent that force is part of that defense, then, you know, it has the right to use military force. The question is whether it's doing so in a way that's consistent with its other legal obligations. And here, we don't have international humanitarian law in front of the Court, although interestingly, the Court nonetheless referenced international humanitarian law, which was very interesting in the obligations of both parties, not just Israel, but also Hamas to abide by international humanitarian law obligations, which is a kind of interesting aside in the opinion. But what's in front of the Court really is whether the way in which the war is being waged is consistent with the Genocide Convention. So, it's a very different kind of case, instead of the Genocide Convention being the sort of pretext for an unlawful war, where the Court is being asked to say, “Hey, this is actually a pretext. And it is not a lawful war. And you've got to stop it.” Here, it's really just about how the war is being waged and whether it's being waged in a lawful way, not whether there's a lawful basis for waging the war in the first place. Because, again, I don't think that that's realistically contested. I don't even think South Africa was contesting that, that there's a there's a basis for self-defense. It said, you know, “Yes, the state has a right to self-defense, it just has to do so in a way that's consistent with his legal obligations.” So, I think the two cases are quite different, and if people were expecting the same kind of order, I think they just didn't, didn't understand the subtle legal differences between these two cases. 

Yuval: Now that I agree. And South Africa did argue this, but in a very halfhearted way. Of course, the difference that cuts in the other direction, I should say, is that Ukraine didn't ask for cessation of the war and South Africa did. So in a way, both parties didn't get exactly what they requested. 

Oona: That's true. That’s true.

Adil: And just to round out the discussion, I guess. So, my own view is that the U.N. General Assembly has voted by an even more overwhelming vote, I think 153 or something, on the need for an immediate humanitarian ceasefire. And the reason for that is not to deny Israel's right of self-defense, but simply to say that the appropriate balance between that right of self-defense and the right of survival of the Palestinian people is struck through an immediate humanitarian ceasefire, the release of all hostages, and the unimpeded delivery of humanitarian assistance. And so, in my view, the Court could have relied on that judgment by the overwhelming majority of the international community not to deny the rights on either side, but to find an accommodation, because the core of South Africa's argument for a cessation order was that only a cessation of hostilities would allow humanitarian relief to prevent a humanitarian catastrophe. 

And so, for me, the challenge was that only one party to the conflict was before the Court. And so, the Court could not say, “Israel and Hamas, you must both observe a humanitarian ceasefire.” I think that problem could have been overcome. I think the Court could have directed Israel to seek and observe a humanitarian ceasefire with Hamas and other armed groups, provided that they do so as well. And I think that the Court could have directed South Africa to use its diplomatic means to encourage Hamas and other armed groups to uphold a ceasefire and to release the hostages.

Interestingly, one point of agreement I do have with Judge Aharon Barak is on that point, that that is something that the Court could have done. So, I think there was a path for the Court to craft an order that would achieve a ceasefire, even though it doesn't have jurisdiction over Hamas. I can understand, I can imagine reasons why the Court didn't want to go there. But, I would have liked to have seen those reasons either in the decision itself, or in a separate opinion, just to give us some glimpse about why the Court did not go that far, even though the humanitarian crisis at the heart of this case. Most experts degree cannot be addressed without a ceasefire.  

Paras: I'm sure the decision will have many ripple effects in the next weeks and months. What are the top one or two trends that each of you will be watching for?

 Oona: I'll say the thing I'm going to be watching for is how the U.S. responds, how the U.S. government in particular responds. You know, does it sort of discredit the Court and sort of brush it off? Or does it take it seriously, and I would say the Biden administration would be well advised to take it seriously for a number of reasons. I mean, we, it's very hard to make an argument that international law matters and Russia v. Ukraine and then decide somehow that all of a sudden it doesn't matter in this case. 

Moreover, I mean, the Biden administration has been trying to get Israel to wage this war in a different way, and has been sort of in backdoor conversations, making a lot of these arguments. And now the Court is coming in to say the same thing. And the government of Israel has been apparently largely ignoring a lot of the arguments the U.S. government has been making. And I think this gives more weight to the arguments that the Biden administration has been making. 

And I think, even, you know, we'll see what if Congress does anything. I mean, I think there's an argument that Congress should get into the act here, because again, we're potentially ourselves becoming actors in violation of the Genocide Convention if we don't do something differently in light of this decision. So, you know, I think I'm going to be interested to see how that conversation unfolds within the United States, because I think that has the greatest prospect for shifting the behavior of Israel, because I do think that they care what the U.S. thinks, and at the prospect of losing assistance, or significant backtrack or reduction of assistance to the United States might actually cause some thinking about how the war is being conducted.  

Yuval: Right, I would agree that the U.S. position would be very important. I would also look at how the Israeli government is actually responding to that decision. I must, so far, the first, I mean, the official response had been actually quite positive to the decision, that they were actually highlighting the parts of the decision that they liked, the fact that there was no order for cessation of hostilities, that there was also a call for the release of the hostages. This was also actually already noted in a foreign ministry press release. And they said that Israel is committed to international law with or without the Court. 

So, on the whole, the response initially was quite pragmatic and positive. But politics in Israel have their own unique idiosyncratic features, and there could be, especially around the date of reporting, in a month, there could be some, well, maybe if we're lucky, then the war would be over by then, or maybe the hostilities would be significantly reduced. But if not, I would actually look at that moment in time to see whether Israel is continuing. I think it's wise policy of cooperating with the Court, of taking the proceeding seriously, of trying to basically be as cooperative and as pro-international law as it can be. But politics may actually push it in another direction. And that will be very counterproductive for Israel vis-à-vis the U.S, but also vis-à-vis the E.U. 

Adil: And I am hopeless optimist that the Prosecutor of the International Criminal Court will finally bring some charges related to this conflict. And in that regard, I'll be interested to see how he frames the charges that he brings against the background of the ICJ’s provisional measures ruling. Obviously, many of the potential charges can easily coexist with the possibility of genocide. There's simply easier to prove a variety of war crimes and to prove the specific intent requirement of genocide.  

That said, there are some interesting tensions that could arise, particularly with respect to the war crime of starvation, where the intent may not be to destroy the group, but rather to pressure the civilian population to rise up against Hamas, or to pressure Hamas to capitulate. So that would be a different theory of the case and different theory of the intent behind the siege and the restrictions on humanitarian assistance. And so, I’ll be interested to see if the prosecutor goes in that direction, how he frames the differences between his theory of the case and South Africa's theory of what is going on.

Paras: We'll be watching all of this closely at Just Security. Oona, Adil, Yuval, thank you so much for joining the show and sharing your perspective.

Oona: Thank you so much. 

Adil: Thank you.

Yuval: Thank you. 

Paras: This episode was hosted and produced by me, Paras Shah, with help from Clara Apt. Our theme song is “The Parade” by Hey Pluto.  

Special thanks to Adil Haque, Oona Hathaway, and Yuval Shany. You can read all of Just Security’s coverage of the ICJ and the Israel-Hamas war on our website. If you enjoyed this episode, please give us a five star rating on Apple Podcasts or wherever you listen.