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The International Court of Justice (ICJ) has issued a press release stating that it will this Friday "deliver its Order" in response to South Africa's "Request for the indication of provisional measures" in the case concerning "Application of the Convention on the Prevention and Punishment of Genocide in the Gaza Strip (South Africa v. Israel)".
Many people, rightly horrified by Israel's genocidal campaign against the Palestinian people in the Gaza Strip, expect the ICJ to order a comprehensive ceasefire. In their view this is the least the ICJ can and should do. They will consider anything less a failure by South Africa, a betrayal of the Palestinian people, and an indictment of the ICJ and indeed of international law itself.
My own view is that this matter should be looked at very differently and judged by different criteria.
The ICJ can respond in several ways to South Africa's application. It can determine that South Africa has not presented a plausible case that Israel needs to answer, decline to order any provisional measures, and effectively consider the case closed. The Court could also determine that South Africa has failed to demonstrate that there is a dispute between South Africa and Israel as defined by the Genocide Convention, and dismiss the case on technical grounds. Either scenario would be a clear defeat for South Africa and the Palestinians, and for that matter the concept of international justice. Most specialists consider either of these scenarios to be the least likely outcome, largely because the South African legal team presented such a meticulously detailed and cogently argued legal and factual case, while Israel's rebuttal was comparatively weak.
If the Court does indeed order provisional measures, it is not bound by those requested by South Africa. It can adopt all of them, some of them, or entirely different ones than those proposed by South Africa. In the relevant precedents, Bosnia and thereafter Myanmar, the ICJ sufficed with general injunctions ordering the accused state to "take all measures within its power" to prevent acts that amount to or contribute to the crime of genocide. In doing so, it may even prohibit specific acts identified in the Convention, such as deliberately inflicting conditions of life calculated to bring about the physical destruction of the threatened group.
The ICJ did indeed order a ceasefire in the case of Ukraine, but as was pointed out to me in response to a previous thread, this was an entirely different case. Ukraine did not claim that it was the victim of genocide, but rather that unsubstantiated Russian accusations of genocide against Ukraine were being used by Russia to justify military operations on Ukrainian territory. It was on this basis that Ukraine requested, and the ICJ ordered, Russia to halt those operations....
Read the full opinion at Mondoweiss