South Africa v Israel: A Solomonic Decision as “Constructive Ambiguity”

In its wise Order of 26 January 2024, the ICJ managed to make a virtue out of a necessity: Israel was not prohibited from continuing its combat operations but was reminded of its strict compliance with international humanitarian law and its obligation to avoid genocide. At the same time, the ICJ reiterated the requirement to respect the most fundamental rights and the core of humanitarian law to all warring factions. The ICJ’s order of provisional measures is a Solomonic decision at its best and a further step towards the “humanization of international law”.

South Africa’s complaint against Israel based on the 1948 Genocide Convention seemed to harbour the danger of generating a show trial in which there could (almost) only be losers and, in particular, only poor alternatives with regard to the requested interim measures. If the ICJ were to reject these measures, it would expose itself to the wrath of the Global South as well as of a large number of states worldwide siding with Palestine or against Israel. The repeated complaints about the ineffectiveness of the Court would have gained new fuel.

Moreover, the Israeli government could have sold such a decision as a general absolution for all possible complaints of violations of the most basic fundamental rights, of the laws of war and international humanitarian law, which are not as such directly the subject of the proceedings. These proceedings are strictly concerned with the question of whether Israel has violated the obligations resulting from the Genocide Convention or whether there is a plausible imminent threat in this regard. The compromissory clause under Article XI of the Genocide Convention (together with Article 41 of the ICJ Statute) provides the ICJ with a basis to rule only on these aspects.¹⁾

Conversely, an approval of the requested measures would have completely delegitimised Israel’s fighting in the Gaza Strip and called Israel’s right to self-defence into question. This could have pushed Israel further into the corner of pariah states with serious consequences for its ability to survive in the long term. An order that would have requested Israel to stop its military measures on the ground that the commission of genocide seems plausible could be interpreted as a sign that one may anticipate a verdict of Israel being guilty of genocide. Yet, even a substantiated plausibility that the ICJ could issue such a verdict in the next few years would have carried an enormous burden for the State of Israel. For a plausible accusation of genocide, the “crime of crimes”, is difficult to bear. It is no coincidence that the ICJ, in the genocide case brought by Bosnia and Herzegovina against Serbia and Montenegro, stopped short in 2007 of finding Serbia and Montenegro immediately responsible for active involvement in the massacre committed in Srebrenica in 1995, notwithstanding the strong evidence in this regard. The burden of this blame would have been simply unbearable for this young state.

Important warnings by Professor Hugh Thirlway

Interim measures requiring Israel to stop its military action would logically imply a military operation constituting genocide or being plausibly conducive to genocide. There can be no doubt that South Africa’s application of 29 December 2023 was squarely directed at obtaining such a statement by the Court. If successful, this application would have rendered Israel’s recourse to the right to self-defence untenable.

The foreign policy success of the South African government would have enormous dimensions – the reported desire to score points in domestic politics would have been fully crowned with success. The request for interim measures thus exemplifies the warning of Professor Hugh Thirlway, one of the most prominent experts on the ICJ procedure:

“The provisional measures procedure has always offered a temptation to States to commence proceedings on a shaky jurisdictional foundation in the hope of getting at least the short-term benefit of an order of provisional measures, and this is all the more attractive when the order is recognised to be immediately binding, even if unenforceable.”²⁾

However, in its wise decision of 26 January, the ICJ largely unexpectedly managed to make a virtue out of necessity: Israel was not prohibited from continuing its combat operations but was concurrently reminded of its duties. Accordingly, it must strictly comply with international humanitarian law, prevent genocide and combat and punish incitement to it (para. 78 and 79). Moreover, Israel must take effective measures to prevent the destruction of the relevant evidence (para. 81). Additionally, the ICJ paid particular attention to the humanitarian situation in Gaza and, in this context, called on Israel to allow humanitarian aid to be delivered to Gaza (para. 80) and to prevent the imposition of measures intended to prevent births within the group (para. 78). Finally, Israel must report within one month on the taken measures to implement these obligations, on which South Africa can comment in turn (para. 82). The ICJ also expressed its “deep concern” about the situation of the Israeli hostages, taken by Hamas – showing a coherence that the political organs of the United Nations (long remaining silent or at least tight-lipped on this issue) have lacked for far too long (para. 85).

The ICJ’s recourse to “constructive ambiguity”

Overall, the ICJ resisted the temptation to engage in a fruitless dispute on whether genocide had been committed in Gaza in the past months – the Genocide Convention, under the prevailing interpretation, offers little substance for such a claim – but rather looked at the existential challenges the immediately affected people in this area have to master at present and in the immediate future.

Legally, this was not an easy task, as the Court had to defend its own standing and authority by simultaneously safeguarding the reputation of the contending parties. If the ICJ intends to remain an “effective and authoritative” judicial body (to use the words of the “New Haven School”)³⁾, it must protect the reputation of the states to the utmost extent. De facto, even though absent in the ICJ Statute, one must presume that claims brought before the Court are presented with a non-abusive intent. Should a state deny the existence of a dispute, that would question the function of the Court and thus likely fail to be successful. Conversely, the Court would be careful not to prejudice any unproven and unqualified claim, especially concerning the genocide. Hence, to overcome this quandary, the ICJ implicitly took recourse to a concept often used in international law when one has to find a face-saving solution in the presence of irreconcilable interests: “constructive ambiguity”.⁴⁾

“In the Court´s view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel´s compliance with the latter´s obligations under the Convention.” (para. 54)

These respective acts are of the most variegated nature. They refer, i.a., to acts committed by individuals, such as “direct and public incitement to commit genocide” (Article III, para. (c)). As ambiguous as the respective allegations may have been, there is no doubt that Israel is obliged to prohibit and sanction such acts. Israel can easily comply with the said obligation,⁵⁾ which was also approved by the Judge ad hoc, Barak, appointed by Israel (para. 86).

One can never be wrong to admonish Israel to avoid and prevent genocide when combating in Gaza. After all, that is fully compatible with Israel’s affirmation that it is not committing genocide, not now and not ever in the future.

Conclusions

The fears of a destructive outcome of this preliminary ruling have proven unjustified. The Court has preserved its own authority and issued a face-saving ruling for all the parties involved. The mixed reactions by the contentious parties and their allies and adversaries are not always to be taken at their face value when, for example, one side claims victory while the other decries another manifestation of international injustice. Much political calculus and rhetoric is here at play. It is probably fair to state that there are no victorious and no succumb parties at this stage. One would probably say the same concerning the final decision on the merits.

Besides asserting its authority as the ultimate judge in inter-state conflicts, even when erga omnes obligations are at stake, the ICJ took advantage of the opportunities offered by the first stage of a much-publicized international litigation. While seemingly concentrating on clarifying procedural rights, it restated and advanced pivotal fundamental rights. The Court revealed more in the hidden obiter dictum than in the main tenor, what many first commentators missed in their assessments. What the Genocide Convention lacks concerning its substantive reach, the judges complemented in their balanced ruling.

Indeed, the ICJ focused on the suffering of those affected and, given its limited influence, made the best possible contribution to alleviating the plight of the civilian population – including the hostages abducted by Hamas. The request for the “immediate and unconditional release” of hostages (para. 85) introduces an important twist, fully outside the claims by South Africa. In that way, the ICJ showed its balanced and perceptive understanding of this controversial conflict threatening the most basic fundamental rights and humanitarian law provisions. While there are two parties to the conflict, Hamas unleashed the most brutal attack on 7 October 2023.⁶⁾

To conclude, the ICJ importantly contributed to the “humanisation of international law” and – despite still essentially being a court for inter-state disputes – put the individual, the human being, at the centre.