Commentary on the ICJ judgment in the case of South Africa (#SA) vs #Israel for #Genocide in #Gaza seems starkly divided. Some seem to be hailing it as a resounding victory for SA, but equally, others are hailing it as a resounding victory for Israel.
For what it’s worth, I think both of these extremes are right and wrong.
There seems to be many sources of confusion, and I can’t address them all here. Bias seems to be a primary source – and there is little that I can say to address that. I suppose the only thing that I can say is to repeat the profound question: if you cannot change your mind, can you be sure you still have one? Perhaps more seriously, I should say that, at base, reason sensitivity is required for one to have a reasonable and responsible mind – an essential requirement for being human. Beyond that, I can’t possibly answer those who misread the judgment or what I say so as to frame me as somehow an enemy of Islam or Judaism. I am neither. I will admit to a bias. I am a pacifist and I see the world and the ICJ judgment through this lens. I want the hostages to be returned and I want the war to end – both, with immediate effect. And if you need to know more, I believe that the only long-term solution is the so-called “two-state solution” – because I believe that is the only hope for lasting peace. But otherwise, I carry no flag for any country. I am from South Africa – but will be the first to admit that it has its own profound problems. However, that does not detract from the case it has made against Israel.
Beyond the problem of bias, there seems to be two fundamental problems which I can comment on. Both arise out of the study and practice of law – and it is for that reason that I think it may help many who are not lawyers to understand the judgment and its effect. For any lawyer who reads this – I am hoping that this explains my thinking. Of course, I am open to all reasonable comments and to correction.
The two issues are as follows (in order of complexity – the easiest first):
- The distinction in what may be called the courts ´judgment´between the court’s ´findings´, which contains its reasons, and its ´order´;
- Legal overdeterminism – the problem of granting an order which only confirms or repeats legal obligations already in place.
The first issue seems to be at the root of those claiming that Israel was vindicated, because, if the order is read in isolation from the findings, there is nothing in the order that says that Israel is (prima facie) committing Genocide in Gaza. The order is prospective, it orders Israel to do or not do certain things but does not say that it is doing or refraining from doing certain things.
Thus, those who read the order in isolation, seem to take this as vindication – that Israel is not committing genocide. This is a correct reading of the order, but the order cannot be read in isolation from the findings. The findings are absolutely clear: On the face of it (that it is plausible), Israel is committing Genocide (see paras 41-54) and there is an urgent need for measures to prevent irreparable harm (see paras 60-74). If one doesn’t see that when reading the judgment, one may infer it as a necessary condition for the order granted. The ICJ could not have issued the order against Israel which it did, unless it was satisfied that (on the face of it), as a matter of fact and law, Israel is committing genocide. In short, one must read the two parts of a judgment together: the findings being the necessary basis for the order.
Secondly, I should elaborate on the concern I have expressed about the effectiveness of the order granted by the ICJ. Let me explain that the concern arises because it reminds me of the problem one faces in representing an abused spouse (A) in seeking to restrain a physically abusive spouse (X). Often A will seek an order from a court to the effect that X must refrain from abusing A. The problem inherent in these sorts of cases is that, at base, one is asking the court to order X not to assault A – whereas X is already under exactly this legal obligation arising out of statute and/or the common law. Even if one is successful, one will obtain an order that legally obliges X to refrain from conduct which X is already legally obliged to refrain from. Often the existing obligation is based in criminal law and carries a far greater penalty than breaching a court order. This gives rise to the problem of overdeterminism. If X refrains, it may be because of X’s original obligation or because of the court order – or both. But the real problem is that if X was not deterred by the original obligation, X is unlikely to care that a court has confirmed that he is under these obligations. This is especially likely to be the case where X denies that s/he is abusive. An order against X to refrain from abusing A is likely to be met with continued abuse and continued denial. Here one may expect that X will continue to do exactly what X denies doing in any event. This is the reason why an effective order will usually include some sort of novel legal obligation, such as an order that X may not come within 100 meters of A. This can be policed and enforced.
Translating this to the ICJ judgment against Israel, the measures ordered are all legal obligations which Israel is already required to observe – save for the obligation to report. Thus, with the exception of the duty to report (which I will address shortly), there is no reason to think that Israel will observe a legal obligation just because the ICJ has confirmed that the obligation applies. Worse, we are dealing with the scenario above, to use that language, where Israel denies that it is abusive in any event. As is the case regarding domestic abuse there is little reason to think that Israel, will stop doing what it says it is not doing anyway. And so on to the report, there is again, little reason to expect Israel will start saying that it is doing what it has maintained all along that it is not doing. Although South Africa will be given an opportunity to comment on the report, if Israel and/or its military commits genocidal acts in the interim and/or makes the provision of humanitarian aid impossible, and Israel denies this, South Africa may call it out in its comments, but there is certainly no mechanism for a conclusive finding one way or the other by the court, at this stage (and, likely, for many years to come). At best one may hope for an interim hearing – but that, again, can only lead to a provisional order that Israel must comply with the ICJ’s original order and report on it – another case of legal overdeterminism.
To conclude, the ICJ judgment is not an outright vindication for either Israel or South Africa. While it is clear that the ICJ has found that, on the face of it, Israel is committing genocide, the measures ordered may well be ineffective because of the problem of legal overdeterminism. In the circumstances, I don’t think that the ICJ judgment was an outright vindication for either side.