Israel in The Hague: managing expectations - Henry Lovat

The World Court’s order has been lauded in some circles as game-changing. Some claim it implicitly requires Israel to halt hostilities in Gaza, requires Israel’s allies to reconsider arms supplies to the Israeli military, and strengthens the international rule of law, including by challenging perceived Western double standards. For some, the ICJ order also provides a legal basis to challenge Western governments’ pausing of (it is important to recall - voluntary) funding for UNRWA over the past days.

For others, the ICJ has rather brought itself into disrepute by daring to entertain the notion that Israel may be committing genocide in Gaza. The order has further empowered those who would cast the United Nations and its institutions as irredeemably biased against Israel. On this side of the Manichaean divide, those who claim to support the Palestinian right to self-determination are acting in bad faith, motivated by antisemitism and a desire to see the eradication of the Jewish state.

In truth, before jumping to any conclusions, it is vital to recall what the ICJ has actually ordered – and what it has not. It is crucial to underline the modesty of these legal measures, as well as their likely limited on-the-ground implications, at least in the near term. The court’s readiness to hear South Africa’s case more generally also needs to be put into perspective.

Perhaps most critically, the court fell short of demanding Israel halt military operations. Instead, it largely ordered Israel to comply with its pre-existing international legal obligations.

Israel is already bound, for example, under Article I of the Genocide Convention “to prevent and to punish” genocide, and claims that it is in any case complying with its international law obligations in respect of the provision of services and humanitarian aid to Palestinians in Gaza - in line with the ICJ’s requirements.

Similarly, reflecting the ICJ’s injunction to preserve evidence, Israeli authorities are in all likelihood – if only out of self-interest – already marshalling relevant material. And last, the measures announced by the Israeli Attorney General only days before the hearing seem tailored to head off accusations of failure to combat genocidal incitement.

None of this is to suggest that steps taken by Israel will ultimately be sufficient to satisfy the court (or anyone else). Indeed, South Africa’s ability to comment on Israeli reports on compliance with the provisional measures order suggests this is likely to remain a live issue for some time.

Nevertheless, the substantive Israeli position appears to be that there is no “operational dimension” to the court’s requirements. Given that, and despite sometimes extravagant claims to the contrary, it seems highly unlikely that the provisional orders will have a meaningful direct impact on the humanitarian situation in Gaza, or on the conduct of hostilities more generally.

At the same time, this is not to say that Friday’s decision may not have broader – albeit again, likely limited - ramifications.

Governments critical of Israeli conduct, South Africa in the vanguard, have already relied on the decision to ramp up rhetoric. Similarly, the decision has unsurprisingly drawn the attention of activists, commentators, scholars, and international media to what would ordinarily be arcane points of international law.

It is possible that this will result in increased pressure being put on relevant governments – including Israel – to adopt more or less expansive readings of the court’s decision, depending on the views of the groups applying pressure.

Much debate has focused, for example, on the court’s finding that “the right of Palestinians in the Gaza Strip to be protected from acts of genocide” is “plausible”.

One of the more provocative issues raised is whether this determination should cause Israel’s allies and arms’ suppliers to rethink these relationships and exercise greater diligence lest they become complicit in genocide.

Again though, while such proposals may generate extensive commentary, given the low threshold for plausibility at this stage in proceedings, it is difficult to envisage significant shifts in US – or for that matter UK – attitudes towards arms exports to Israel.

It is worth underlining also that in contrast to the low bar for “plausibility”, the standard of proof required to demonstrate the commission of genocide is formidably high. We are a very long way from a determination that genocide has actually taken place, let alone that any other obligations under the Genocide Convention have been breached.

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That said, it is certainly significant that South Africa has brought this action. In an issue that has been said to cast the “rest” against the “West”, South Africa has proved willing to take on Israel and risk diplomatic wrath, solidifying its position as one of the leading international advocates on behalf of the Palestinian cause. (Though there is as yet little to suggest this may translate into significant humanitarian support for Palestinians via e.g. UNRWA, to mitigate losses of Western funding.)

It is also significant that Israel is willingly participating, appearing for the first time before the ICJ. There is no indication that Israel will withdraw from the case, notwithstanding Ben Gvir’s “Hague Shmague” tweets. Netanyahu would evidently prefer not to openly emulate Putin’s scofflaw approach in the Ukraine v Russia case, aligning Israel in this regard at least with the US and its Western allies. The proceedings could accordingly provide a lever for the US to apply to moderate Israeli conduct or advance post-conflict planning.

Dr Henry Lovat (Image: University of Glasgow)

As some have suggested, it is even conceivable that the case could augur renewed faith in the international rule of law and in the scales of international justice. Academic calls, at least, for “law, not war” appear to have been renewed, and there is perhaps increased hope in some circles that international institutions and law may become less susceptible to Western realpolitik and more responsive to demands for justice from the Global South.

It remains difficult, though, not to be sceptical of such optimism. It is by any reckoning at least as likely that rather than “empowering” the Genocide Convention, the case will herald further weakening of what remains of the rules-based international order, with “more spurious cases being brought before the ICJ”. The focus on breaches of the Genocide Convention also risks diverting resources and attention from potential breaches of the broader laws of war in the conflict.

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Perhaps most fundamentally, the tragedy is that for all the effort invested by so many in the proceedings - whether in good or bad faith – few can in good conscience expect the case to have a material bearing on the humanitarian situation in Gaza. It simply does not seem particularly likely to significantly affect the political and security calculations shaping Israeli and (presumably also) Hamas’ conduct of hostilities, let alone alter Israeli or Palestinian strategic calculations.

This may be in part because a finding of genocide against Israel is highly improbable.

Regardless, it remains by any accounting tragic that for all the high-flown rhetoric and opportunities for legal and political showboating, the proceedings at the ICJ appear most likely to persist as a sideshow to ongoing Israeli and Palestinian suffering.

This is not because of any deficiencies at The Hague: international law, the ICJ and other institutions undeniably have their place in a complex international reality.

It is, rather, ultimately because of the continuing failure of their - and our - governments to lead Israelis and Palestinians to a durable, and perhaps even somewhat just, peace in this most intractable of conflicts.

Dr Henry Lovat is senior lecturer in International Law and Politics at the University of Glasgow. All opinions expressed are solely the author's and do not reflect the opinions or beliefs of the University of Glasgow or any other institution with which the author is affiliated.