Explaining the International Court of Justice's Ruling on Israel and Gaza

At the end of 2023, nearly three months after the atrocities of Hamas’s terrorist attack in Israel and Israel’s subsequent military response against Hamas in Gaza, South Africa submitted a case against Israel to the Court of International Justice (ICJ). South Africa alleged that Israel was committing genocide in Gaza against the Palestinian people in direct violation of the Genocide Convention. Bill Burke-White, professor of law at Penn Carey Law and the founding director of Perry World House, sat down with us to provide some insight on what the ICJ’s decision says, what it doesn’t say, and what it means for Israel’s war against Hamas. 

PWH: Can you please explain for us what the International Court of Justice’s recent ruling on Israel says?  

Burke-White: In its January 26 decision, the International Court of Justice (ICJ) ordered Israel to take steps to prevent any acts of genocide in Gaza. The Court required that Israel ensure that it does not commit acts that might fall within the scope of the Convention on the Prevention and Punishment of the Crime of Genocide. This includes that Israel takes steps to punish any Israeli who might have individually committed acts of genocide or incited others to commit acts of genocide in Palestine. More broadly, this ruling requires Israel to improve the humanitarian situation in Gaza. 

PWH: Does this ruling confirm the accusation that Israel is committing genocide in Gaza? 

Burke-White: No. In fact, this ruling could never have done so, because though this decision is binding, it is merely the first step in a much longer judicial process that is expected to take years to complete. This initial decision was in response to South Africa’s request for provisional measures and does not represent a final ruling in the case. Cases before the ICJ are long, often taking many years. But in circumstances of extreme urgency where the rights of either party may be irreparably harmed while the case is under consideration, the Court can order countries to take actions that “preserve the respective rights of either party.” Such provisional measures do not involve an actual decision on the merits of the case and hence could never confirm the accusation that Israel is committing genocide.  

The Court also took a very cautious approach to this case and was careful not to suggest that Israel is committing genocide. The closest the Court came was to observe that “at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the (Genocide) Convention.” It is worth reading that sentence closely and noting that the Court merely restates South Africa’s allegations, rather than reaches a conclusion of its own. So too, many different violations short of genocide itself might “fall within the provisions of the Convention,” such as the failure to prosecute perpetrators or instigators of genocide.  

It is, however, significant that the Court has found it at least plausible that Israel’s actions fall within the scope of the Convention. That finding allows the Court to order preliminary measures and advances to the next phase of deliberation. Only through the far longer and more in-depth consideration of evidence during the merits phase of the case in the years ahead will the Court be able to reach a final decision. It should be noted that genocide is an incredibly difficult crime to prove. Genocide refers to any of a series of acts – such as the killing or the transfer of children—undertaken with “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.” Historically, courts have struggled to prove the relevant intent, which is not just murder but a concerted policy to destroy a people as a whole. For South Africa to win this case, it will need to find and provide evidence that the Israeli government’s intent was not merely to prevent attacks such as those of October 7 or to degrade the capability of Hamas, but rather to annihilate the Palestinian people as a whole.  

PWH: What does the ICJ’s decision mean for Israel’s current war against Hamas in retaliation for their October 7 massacre of Israelis? Does the Court call for a ceasefire in Gaza? 

Burke-White: The decision will have relatively little immediate impact on Israel’s war against Hamas and the Court notably did not call for a ceasefire. To understand why, again we have to consider what the case was about. As much as we might want the ICJ to have the power to decide any and all issues of international law, the Court has limited authority based on commitments states have made in international treaties.  

This is a case brought by South Africa against Israel under the Convention on the Suppression and Punishment of the Crime of Genocide. The only questions over which the ICJ has jurisdiction are those that relate to the commission of genocide. The legality of the war itself was not before the Court and the only way the Court could have demanded a ceasefire is if genocide was an inevitable and unavoidable outcome of war. And while the Court found it is plausible that Israel’s actions amount to genocide, there was no evidence that the war itself is causing genocide and, hence, that a ceasefire would be needed to prevent genocide.  

That said, the Court’s orders do have implications for how Israel conducts the war in Gaza. Specifically, Israel must conduct the war in a way that avoids the commission of genocide. Among other things, the ICJ ordered Israel to: 

• “ensure with immediate effect that its military does not commit [genocide];” 

• “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;” and 

• “take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip.” 

Even though these orders fall far short of a call for a ceasefire, they do create new legal rules for how Israel continues its campaign in Gaza. Israel must prioritize the protection of and humanitarian assistance for the Palestinian people. 

PWH: What are the next steps that the Court has instructed the parties to take? What happens if they do not agree to take those steps or do not meet Court-ordered deadlines? 

Burke-White: As noted above, the Court has required that Israel ensure that it does not commit genocide in Gaza, that it takes steps to punish acts of genocide that may occur, and that it provides humanitarian assistance to the Palestinian people. In addition, Israel is required to report back to the Court within one month on the steps it has taken to comply with these orders. In late February, Israel will file with the Court a statement of concrete actions it has taken in response to the Court’s decision. Among these, steps to improve the humanitarian situation in Gaza may be the most significant and it will be interesting to see what steps Israel takes in the coming month to “address the adverse conditions of life faced by Palestinians in the Gaza Strip.” 

Israel is legally obligated, pursuant to the Charter of the United Nations, to comply with the decisions of the International Court of Justice. Should Israel fail to comply with these orders or fail to submit the required late February statement to the Court, it would be in violation of international law.  

Where a country fails to comply with an ICJ decision, the victim state can turn to the UN Security Council for help. Occasionally, intervention by the Security Council can ensure compliance with court decisions. However, given that the United States continues to be a strong protector of Israel and holds a veto on the Security Council, it seems most unlikely that the Council would take action to enforce the ruling against Israel. 

PWH: Can Israel appeal this decision? 

Burke-White: No. First, there are no appeals from decisions of the International Court of Justice. Again, however, this decision is merely a preliminary ruling on whether immediate measures need to be taken by either party. In the years ahead, the ICJ will undertake a far more detailed examination of the evidence, hear considerable oral arguments and make a final determination on the merits. Ultimately, it is that final decision which will be legally binding.