yellow card

ICJ ruling is a ‘headache’ for Israel, but impact on Gaza war is likely small

While Jerusalem rails against the decision from The Hague and pro-Israel voices on the Hill view it as a minor victory, analysts say Israel will fight the war in mostly the same way

Dursun Aydemir/Anadolu via Getty Images

Gilad Noam (L) , Israel's deputy attorney general, attends session on the day the International Court of Justice (ICJ) ruled on a case against Israel made by South Africa in the Hague, the Netherlands on January 26, 2024.

The International Court of Justice’s orders that Israel report back on its efforts to prevent genocide and take great efforts to minimize civilian harm are unlikely to change much in the way Israel continues the war in Gaza, experts told Jewish Insider following Friday’s decision. 

The Israeli government railed against the decision as libelous against its right to defend itself against terrorism. And in the United States, pro-Israel lawmakers generally concluded that, despite their disagreements with the ruling and the credibility of the court, South Africa failed in its goal of tagging Israel with a genocide charge.

The court was responding to South Africa’s petition for the issuance of a provisional measure ordering an immediate cease-fire, as part of Pretoria’s broader case against Israel, which it accused of perpetrating genocide in Gaza. 

While the court said it was not ruling on the merits of South Africa’s genocide claim, 15 of 17 of the judges said there was “plausibility” to them and called on Israel to “take all measures within its power” to prevent genocide, including avoiding killing or wounding Gazans, and required Israel to report back on its efforts in a month. 

Israeli judge Aharon Barak joined the justices ruling in its order that Israel punish those who incite genocide against the Palestinians and take further steps to increase humanitarian aid to Gazans. The court also called on Hamas to release the remaining hostages in Gaza. The only judge to rule in Israel’s favor on all counts was Justice Julia Sebutinde of Uganda, a position Kampala has distanced itself from.

Israeli Prime Minister Benjamin Netanyahu said on Friday that the court’s decision came in response to a “vile” attempt to deny Israel the right to defend itself, and that the “charge of genocide leveled against Israel is not only false, it’s outrageous.”

“Our war is against Hamas terrorists, not against Palestinian civilians,” Netanyahu added. “We will continue to facilitate humanitarian assistance and to do our utmost to keep civilians out of harm’s way, even as Hamas uses civilians as human shields. We will continue to do what is necessary to defend our country and defend our people.”

Defense Minister Yoav Gallant accused the court of going “above and beyond when it granted South Africa’s antisemitic request to discuss the claim of genocide in Gaza, and now refuses to reject the petition outright.”

“Those who seek justice will not find it on the leather chairs of the court chambers in The Hague,” he said.

The provisional measure will have minimal impact on how the war is fought, Ambassador Alan Baker of the Jerusalem Center for Public Affairs, the former legal adviser to Israel’s Foreign Ministry and ambassador to Canada, said because “Israel is fighting the war with what it considers to be strict observance of international humanitarian law and the laws of armed conflict. It has solid evidence and proof behind this.”

The former ambassador, who served as a lawyer in the IDF, noted that there is a legal adviser embedded in every division of the IDF who tells commanders whether their targets are legitimate under the rules of engagement.

Shuki Friedman, vice president of the Jewish People Policy Institute and a law lecturer at the Peres Academic Center, said that “when it comes to our actions in Gaza, Israel always says — and it’s true — that Israel acts according to the law.”

However, Friedman said that Israel should take greater action against incitement.

“If I were the attorney general and there was a clear statement from someone who is not a [lawmaker] and doesn’t have immunity, I would investigate. It’s the right thing to do, legally and internationally. It’s the law and there’s no reason not to enforce it,” he said.

Friedman said reporting to the ICJ is mostly “a headache,” that will require Israel to emphasize and highlight its adherence to the law and to continue to be cautious.

“There’s nothing new here, quite frankly,” Baker said of the court’s ruling. “I didn’t fall off my chair.” 

However, Raphael Bitton, an expert on international law at the Misgav Institute for Zionist Strategy and National Security who is reported to be one of Justice Minister Yariv Levin’s candidates for the Supreme Court, said that “contrary to the apparent satisfaction in Israel, the court’s decision is bad for human justice, bad for human history and bad for Israel.”

Bitton argued that the demand for a report in a month was the most detrimental part of the ruling. 

“Over time, South Africa can make claims and new requests and say the situation got worse or that Israel’s reports were wrong,” he wrote soon after the ruling. “The potential created with this system of constant reporting and discussion is that the court took on the war to be under its supervision…[which inflicts] mortal harm to the Israeli interest. Such supervision can exhaust Israel with hearings.

“Just knowing this will restrain the way Israel manages the war and will take away the security cabinet and the IDF’s freedom of action,” Bitton argued.

Friedman said the decision is “the least worst option” and that Israel was right to be concerned that there would be an injunction against continuing the war.

“Having said that, the decision still is not easy or pleasant for Israel. There is talk about actions by Israel that they imply are borderline genocide and the call for action, to report back and act against incitement, is a yellow card for Israel,” Friedman said, referring to a referee’s warning in soccer.

Regardless of the actual impact on the war, the ruling is damaging, Baker said, because there is so much attention called to the litigation of whether Israel is committing genocide.

“Israel is fighting a very important, essential fight against an organization intent on basically destroying Israel,” Baker said. “Anyone who reads the Hamas and PLO charters will see that… If anything is genocidal, then that is.” 

The case is part of continuing “lawfare” by Israel’s enemies, Friedman said, that comes together with cases against Israel at the International Criminal Court and cases against Israeli officials in countries with universal jurisdiction.  

Friedman and Baker both said that Iran was behind South Africa’s case at the ICJ.

Baker pointed to speculation in South Africa that Iran may have paid for Pretoria to file the case at The Hague and even paid off the ruling party African National Congress’ debt of over 100 million rand ($5.3 million), which was recently settled but whose source of funding remains unreported.

Looking to the future, Baker said it could take two to three years for the ICJ to make a final determination as to whether Israel committed genocide in Gaza.

That 14 of the 15 permanent judges at the ICJ ruled in agreement “does not bode well for the further investigation of this far-fetched and unjust claim,” Bitton said.

Bitton argued that Israel “unloaded its main weapon…of delegitimization” by taking part in the proceedings and appointing Barak to the court.

“There is no legitimacy for such a biased decision formulated with such a one-dimensional view,” Bitton wrote, but the fact that Barak was on the court and even voted with the majority on two points “gives legitimacy to this document, which has no basis in facts or justice.” 

Bitton called on Israel to refuse to report to the court and not end its cooperation with it.

“The longer [Israel] delays saying this, the more it will deepen the legitimacy of the procedure and it will turn into a path from which there is no return,” he said.

Friedman, however, said that Israel does not have reasonable grounds to withdraw from the proceedings. Israel’s argument against the International Criminal Court is that it is not a party to the Rome Statute and therefore the ICC has no jurisdiction, but Israel was one of the first to sign the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

He also argued that “the decision to appear [before the ICJ] was a form of risk management. If Barak wasn’t there, it would have been worse.”

Israel’s appointment to the court of Barak, whom Friedman referred to as a “genius,” had a positive influence on the decision, he argued: “He seems to have negotiated and convinced [the other judges] not to make a harsher decision.”

In his ruling on the matter, Barak wrote of his experience surviving the Holocaust after the Nazis invaded Lithuania when he was 5 years old. Arguing against the genocide accusation, Barak defined it in part as “calculated destruction, and human behavior at its worst…This is the most serious accusation possible, and it is woven into the experience of my personal life.”

Baker explained that the 15 permanent judges of the court represent geographic areas of the world, and that many of them do not come from democratic countries. 

“Half or more of the judges receive instructions from their governments and don’t act purely according to the principles of justice,” Baker said in a briefing for reporters on Friday. 

Friedman similarly said that the court is “half political.”

Baker also noted that “none of the judges are experts in the laws of armed conflict,” and therefore “they didn’t really go into the issues of armed conflict.” 

Bitton said that, in its ruling, the court “assumed that there is the possibility of the crime of genocide being committed in Gaza. Otherwise, an urgent order to prevent this possibility would not have been necessary.”

In addition, Bitton called the decision “terribly one-sided,” featuring “a description that does not truly express the horrors that Israel experienced or the existential risks that it is fighting off.” 

Friedman and Baker both used the phrase “lip service” to describe the court’s brief mention of Hamas’ Oct. 7 attack on Israel, killing 1,200 and taking nearly 250 hostages.

Baker said that “the whole presentation by the president of the court [American Judge Joan E. Donoghue] was based on U.N. documentation, which is highly biased against Israel, using data and information provided by Hamas. They hardly mentioned any of the materials that Israel presented to them.”

“Nobody would expect anything else from a U.N. body, especially a panel of judges where two-thirds [of their countries] maintain positions hostile to Israel,” he said.

According to Friedman, the court “looks at proportionality in international law as the parameter… It’s true that Hamas did terrible things, but in the eyes of the world, we still killed over 25,000 Gazans…emphasizing the severity with which they saw Israel’s actions.”

The White House addressed the court’s decision hours after it was issued, with the National Security Council’s John Kirby telling reporters on Friday that the ruling was “consistent” with “much of the approach that we’ve taken with Israel.” 

U.S. lawmakers also weighed in on the International Court of Justice’s decision, generally denouncing the case as a whole, even as the court’s decision disappointed many anti-Israel forces. Some framed the fact that the court did not order Israel to stop the war as a victory for Israel.

Rep. Chris Smith (R-NJ) told JI that the case was “both false and dangerous,” adding that the U.S. and its allies “must continue to uphold Israel’s right to exist against those who demand the absolute destruction of the Jewish state and encourage our allies to support Israel against these ongoing attempts to delegitimize and demonize our great ally.”

Rep. Brad Sherman (D-CA) said that South Africa’s claim was “absurd.” 

“Genocide accusations against Israel are a vile perversion of the memory of real genocides.”

Rep. Kathy Manning (D-NC), who co-led a letter on the subject last week with Smith, told JI the ICJ “should have dismissed South Africa’s groundless case.”

“Today’s ruling does little to change the facts: Israel is a democracy which has the right to defend itself and takes important steps to protect civilians, unlike the terrorist group Hamas,” she continued. “I will continue to stand strong against efforts to unfairly single out Israel.”

House Foreign Affairs Committee Chairman Michael McCaul (R-TX) blasted the court for not striking down all of South Africa’s claims, which he called “meritless.” He called on Pretoria to withdraw its complaint “and focus on upholding democratic values.”

He suggested that South Africa’s case is “politically motivated” by its ties with Hamas, Iran, Russia and China. Shortly after the Oct. 7 terror attacks, South Africa’s foreign minister traveled to Tehran for meetings with top Iranian officials, including President Ebrahim Raisi.

Critics of Israel on the Hill have been mostly mum in the wake of the international tribunal’s decision. Reps. Rashida Tlaib (D-MI) and Cori Bush (D-MO) sought to frame the ruling as a vindication of their positions, arguing that the court “recognizes the risk that the Israeli government could be committing genocide and believes immediate action is necessary” and that the court had “signaled an end to impunity for the Israeli government.”

Although the international court did not call for a cease-fire, Tlaib and Bush claimed that a cease-fire and the release of hostages “and those arbitrarily detained” is “the only way to implement the Court’s orders.” They also claimed that the U.S. must suspend aid to Israel to comply with federal and international law.

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