Why the ICJ decision is not a victory for South Africa yet

South Africa went to the International Court of Justice (ICJ) with a shopping list of requests. Of current interest is the list of nine provisional measures which effectively asked the court to order a ceasefire, at least in Gaza. The court, rather slyly, didn’t issue an order on the lines of the requests of South Africa. Instead, it claims that the measures “indicated need not be identical to those requested”. Legal minds like to call it ‘further and/or alternative relief’ but very few local attorneys will tell of litigious success invoking that.

On top of the wishlist, South Africa wanted a ceasefire in Gaza. They didn’t get that. What they did get is an order that pulls the words right out of the Genocide Convention and prohibits the killing of members of a certain group. But then the court goes on to specify that the prohibition is only effective in instances where the intent is to kill or destroy in whole in part a group. The order goes on to tell Israel to allow basic service provision and prevent genocide.

But the weird thing is that in Israel’s own arguments, it detailed the humanitarian steps taken to prevent civilian harm in Gaza during military operations. These were steps that the court even referred to in the order. Whether the court believed them is another question entirely, and one that it conveniently didn’t attempt to answer, but going on Israel’s word, the ICJ ordered exactly what Israel has already been doing to some extent: providing water, warning civilians of operations, accommodating the provision of aide and so on.

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All that’s changed now is that the court is requiring Israel to report on these things so perhaps you’ll be seeing “ICJ has followed Israeli army” on X in the next few weeks but other than that, does it change anything on the ground? No. Has it ordered the ceasefire everybody was so sure about? No. Has it stopped a single Gazan from being killed? Unlikely, though time will tell.

So, what was the point of this interim exercise because the world is talking as if South Africa won? Simply put, we didn’t get what we went in asking for. The ceasefire wasn’t ordered. Call me cynical but that’s a straight up loss. Unless asking for something and not getting it is somehow something to celebrate. Though this case should not be seen through the prism of win or lose. It should be seen through the prism of preserving life.

The legally exciting part of the case is yet to come and the determination of genocide is going to be an interesting long and drawn-out battle. We can wait that one out but Friday’s judgment is not the win for South Africa that many are making it seem like.

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If you believe you are following the rules and then get told to follow the rules, nothing changes. You have to be told that you’re breaking the rules before being told to follow the rules has any effect. Nowhere in this order has there been any finding of a rule being broken nor has there been any order to change anything that will prevent a rule being broken.

We spent a lot of money for a nice big court to copy a part of a convention, paste it in an order and say, “here, do that even though both of you have agreed to do it”.

I don’t know if there’s a bigger strategy afoot but if there is, the only real use of this order would be to show the ICJ that Israel is lying about its humanitarian efforts and that is the debate we should be having.

You’ll never stop war, especially when people think their civilisation is at play. To think that the ICJ would have ordered a complete ceasefire is folly.

What you can do is hold people to account and this has set the framework. Was it worth it? Time will tell but let’s not call a victory in this mess when bullets are being fired and hostages are still in capture.

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