How the media has misreported the ICJ’s Israel judgement: Ivo Vegter

Ivo Vegter criticises the inaccurate reporting of the International Court of Justice’s provisional measures against Israel. Despite claims of victory by some, the court did not order an immediate ceasefire, only requiring Israel to prevent genocidal acts in accordance with the Genocide Convention. Misrepresentations by media figures are highlighted, with dissenting opinions pointing out the lack of evidence for genocidal intent. Ultimately, Vegter argues that the provisional measures do not significantly change the status quo, emphasising Israel’s right to self-defence.

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By Ivo Vegter*

Many journalists and officials are inaccurately reporting the ICJ’s provisional measures order against Israel.

On Friday 26 January 2024, the International Court of Justice (ICJ) ruled on the first phase of South Africa’s application, asking it to institute provisional measures against Israel over what South Africa alleges to be actions that violate Israel’s obligations under the Genocide Convention.

The court turned out to be surprisingly willing to accept, at face value, South Africa’s various claims, and to reject many of Israel’s counter-claims. 

It did not accede to Israel’s request to throw the case out entirely, which could be interpreted as a victory for South Africa, in the sense that anything else would have been a humiliating beating.

It ordered Israel to take all measures within its power to prevent the commission of genocidal acts, prevent and punish direct and public incitement to commit genocide, enable the provision of urgently needed basic services and humanitarian assistance, prevent the destruction and ensure the preservation of evidence related to allegations of acts of genocide, and submit a report on all measures taken to give effect to the court’s order. 

However, it did not grant the first and by far the most important of South Africa’s requests, namely that ‘[t]he State of Israel shall immediately suspend its military operations in and against Gaza’.

And that is a great victory for Israel, which had argued that imposing such a measure would deprive it of its right to defend itself and its citizens against the ongoing attacks of Hamas.

Claims of victory

President Cyril Ramaphosa took to the airwaves with such celerity that he began to speak well before the scheduled time of his television address had arrived. 

Those of us who were on time had to refer to a transcript eventually uploaded to the government’s website to learn that he declared the ruling to be ‘a victory for international law, for human rights, and above all, for justice’.

The editor-in-chief of News24, Adriaan Basson, tweeted: ‘Israel must immediately stop killing civilians in Palestine, rules ICJ. It is plausible that Israel is committing genocide, rules ICJ. Major, major international victory for South Africa.’

News24 published an infographic purporting to summarise the ruling:

Ferial Haffajee, associate editor at Daily Maverickechoed this summary, and said that ‘this may be tantamount to a ceasefire’. 

Clayson Monyela, the head of public diplomacy in the Department of International Relations and Cooperation agreed, tweeting: ‘To be clear…the #ICJ has effectively ordered an immediate ceasefire & for #Israel to halt military operations….’

Journalist Richard Poplak tweeted: ‘ICJ rules that at least some of the acts and omissions committed by Israel fall under the provisions of the Genocide Convention. That is a historic indictment. And they’re not done.’

Thuli Madonsela, the former public protector, put it as follows: ‘In simple language, the ICJ has said there is a prima facie violation of the Genocide Convention…’

What the court really said

All these quotations misrepresent the court’s ruling in one way or another.

If the ICJ had wanted to impose a ceasefire, it could have simply said so. Instead, it belaboured the point that it was under no obligation to order the provisions that South Africa had requested, before deliberately omitting the first of these, namely the demand for a ceasefire.

The reason the order appears to some observers to be ‘tantamount to a ceasefire’ is because they do not read the order in conjunction with the Genocide Convention.

Here’s the order

The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and

(d) imposing measures intended to prevent births within the group;

Note that it is limited to ‘acts within the scope of Article II’, ‘in accordance with its obligations under the [Genocide Convention]’.

That means one must also read Article II, which states: 

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

The key phrase here is ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’. 

The court ordered Israel to cease all acts carried out with the intent to commit genocide. It did not order Israel to stop killing Palestinians, or any of the other things, except if those actions have genocidal intent.

In essence, the ICJ ordered Israel to comply with its obligations under the Genocide Convention, which Israel in any case is obliged to do, and claims it is already doing.

Prima facie

Many reports also claim that, in the words of Poplak, ‘at least some of the acts and omissions committed by Israel fall under the provisions of the Genocide Convention’.

Others claimed the court ruled that there is ‘prima facie evidence’ that Israel committed acts of genocide, or that it ‘plausibly violated’ the Genocide Convention.

This is also not correct. The court ruled that there exists, prima facie (at face value), a dispute between South Africa and Israel; that the court has, prima facie, jurisdiction in the matter; that South Africa prima facie has standing to bring the action; and  (here’s the important one):  ̶̶̶‘In the Court’s view, 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 Convention.’

It says that South Africa’s allegations plausibly fall within the provisions of the Convention. It does not say that Israel’s actions plausibly fall within the provisions of the Convention.

Those who say that the court made any finding, even only ‘plausibly’, or ‘prima facie’ about whether Israel committed acts of genocide, ignore the courts own disclaimer: ‘At the present stage of the proceedings, the Court is not required to ascertain whether any violations of Israel’s obligations under the Genocide Convention have occurred. Such a finding could be made by the Court only at the stage of the examination of the merits of the present case.’

Large swathes of the media are treating the story as if Israel has been found guilty  and has been administered a sound legal defeat. It has not. It has merely been accused (and by a party that can hardly claim the moral high ground, at that).

Dissenting opinion

It is illuminating to read the dissenting opinion of Judge Julia Sebutinde, who is the only judge to have voted against all of the provisional measures. Her considered and well-written argument demonstrates that hers was not just a pro-forma or knee-jerk dissent. 

Sebutinde wrote that she is ‘not convinced that a prima facie showing of a genocidal intent, by way of indicators, has been made out against Israel’. Therefore, the preconditions for indicating provisional measures have not been met, and the order of the court is not warranted. Consequently, she rejected all of them.

This is not an unreasonable position to take, since the scale of the destruction alone is not evidence of genocidal intent, and the only evidence of genocidal intent is a handful of cherry-picked quotations that happen to contradict both official Israeli statements and policies, and Israeli actions aimed at minimising civilian casualties.

Sebutinde also points out that the provisional measures ordered merely affirm Israel’s existing obligations under international law, which makes them redundant. 

Separate opinion

It is also well worth reading the separate opinion of ad-hoc Judge Aharon Barak

Affirming what I wrote last week, he wrote: ‘Had the Court granted South Africa’s request to put an immediate end to the military operation in Gaza, Israel would have been left defenceless in the face of a brutal assault, unable to fulfil its most basic duties vis-à-vis its citizens. It would have amounted to tying both of Israel’s hands, denying it the ability to fight even in accordance with international law. Meanwhile, the hands of Hamas would have been free to continue harming Israelis and Palestinians alike.’

He is also convinced that ‘there is no plausibility of genocide’, but voted in favour of two of the orders, namely the order to prosecute and prevent acts of public incitement (which he said the Israeli courts were already looking into), as well as the order to do more to provide humanitarian assistance. 

Barak also writes: ‘The Genocide Convention seeks to prevent and punish the physical destruction of a group as such. It is not meant to ban armed conflict altogether. The Court’s approach opens the door for States to misuse the Genocide Convention in order to curtail the right of self-defence, in particular in the context of attacks committed by terrorist groups.’

Many of my views, as expressed in recent columns on the ICJ case, are reflected in the opinions of judges Sebutinde and Barak.

The verdict

It is concerning that the ICJ spent no time at all discussing the diversion of humanitarian aid to Hamas fighters, or the use of civilian infrastructure by Hamas, or the use of human shields by Hamas, or the continued rocket fire aimed at civilian targets within Israel. It did not mention that while Israel advised civilians to evacuate war zones, Hamas ordered them to stay put.

All of these are at least ‘plausible’, and surely would impact significantly on the outcome of Israel’s attempts to comply with its international legal obligations and the court’s orders. 

In fact, the court ignored large swathes of Israel’s representations. Bias against Israel is perhaps not surprising for a United Nations institution (after all, the United Nations Relief and Works Agency, or UNRWA, which operates in Gaza and was quoted in the ruling, has alarmingly close ties with Hamas). 

It is heartening to see, however, that even if its sympathies may lie elsewhere, the judges of the ICJ do not feel they can go further than what the law permits. 

This raises the hope that when the time comes to evaluate the evidence, it will base its verdict upon the facts, rather than the emotions, public opinion or politics of the case.

The real victory

Ultimately, the provisional measures ordered against Israel do not do much to change the status quo.

It will, perhaps, sharpen that country’s attention to minimising civilian casualties, and to facilitating humanitarian assistance. These are good things. Expecting it to act against intemperate statements by senior officials and politicians is also most welcome.

It does not, however, stop Israel’s legitimate war of self-defence, aimed at destroying the fighting capability of Hamas and removing it from power in Gaza. It does not even substantially curtail Israel’s ability to pursue that war.

In that sense, the ruling was a clear defeat for South Africa, which wanted a ceasefire, and a clear victory for Israel, which feared a ceasefire. 

Anyone who says otherwise hasn’t read the order, doesn’t understand it, or has an anti-Israeli axe to grind.

[Photo: Pandor & Madonsela.webp – Naledi Pandor, Minister of International Relations and Cooperation, and Vusi Madonsela, South Africa’s Ambassador to the Netherlands, listen as the ICJ orders provisional measures against Israel on 26 January 2024. Photograph courtesy of the ICJ.]

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Ivo Vegter* is a freelance journalist, columnist and speaker

This article was first published by Daily Friend and is republished with permission

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