ISRAEL AT WAR - DAY 147

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Explainer

What does Israel need to do to comply with the ICJ genocide decision?

Provisional measures ordered by the court that Israel alleviate the humanitarian situation in Gaza and prevent incitement to genocide will be key to demonstrating compliance

Jeremy Sharon

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

The International Court of Justice, the principal judicial organ of the UN, delivers its order on the request for the indication of provisional measures submitted by South Africa against Israel over its actions in the Gaza Strip, January 26, 2024. (International Court of Justice)
The International Court of Justice, the principal judicial organ of the UN, delivers its order on the request for the indication of provisional measures submitted by South Africa against Israel over its actions in the Gaza Strip, January 26, 2024. (International Court of Justice)

The International Court of Justice’s decision on Friday finding that it is at least plausible that Israel violated some of the terms of the Genocide Convention during its war against Hamas in Gaza was something of a mixed bag for Jerusalem.

On the one hand, the very nature of that finding does severe reputational damage to Israel and further weakens its international standing.

On the other, the provisional measures the court ordered were also relatively mild. The ICJ said very generally and vaguely that Israel must do everything in its power to “prevent” acts of genocide, but since it did not tell Israel to “desist” from such acts or even to halt its military campaign in Gaza, there is little Israel needs to do to demonstrate compliance with that particular order.

The court did, however, issue several other measures that will require more active steps by Israel in order to comply with the ICJ’s orders.

Measures to be adopted

In total, the court issued six specific “provisional measures” Israel needs to comply with.

The first order instructs Israel to “take all measures within its power to prevent the commission” of genocidal acts, and the second states that Israel must “ensure with immediate effect” that the army isn’t carrying out genocidal acts.

President of the International Court of Justice Judge Joan E. Donoghue delivers the court’s order on the request for the indication of provisional measures submitted by South Africa against Israel over its actions in the Gaza Strip, January 26, 2024. (Courtesy International Court of Justice)

Since Israel already insists that it is not carrying out genocidal acts against the Palestinians in Gaza, and explained this position at length both in oral arguments in The Hague and in material submitted to the court, there is little it can practically do to show further compliance with these orders.

Dr. Ziv Bohrer, a senior lecturer for international law at the Bar Ilan University Faculty of Law and a researcher at the Begin Sadat Center for Strategic Studies, said, however, that the IDF could reemphasize to soldiers and commanders that they must abide by the laws of armed conflict, and include details of these instructions in the report the ICJ ordered it to submit on the measures it has taken to comply with the provisional measures.

The fifth order instructs Israel “to prevent the destruction and ensure the preservation of evidence” pertaining to allegations of genocide, which will also not require much practically of Israel, and the sixth tells Israel to file a report to the court one month from the ruling detailing the measures it has taken.

It is the third and fourth orders where Israel will need to demonstrate that it has taken real action to comply with the court.

The third order instructs Israel to do everything it can to “prevent and punish the direct and public incitement to commit genocide,” while the fourth order tells Israel to take immediate steps to “enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.”

‘…the adverse conditions of life faced by Palestinians in the Gaza Strip’

Bohrer said that the fourth order likely implies that Israel would need to show it is doing more than it currently is to enable the entry of humanitarian aid into Gaza.

In theory, this is a measure that should be relatively straightforward to comply with.

Trucks of humanitarian aid have been entering Gaza since October 21, first through the Rafah crossing between Egypt and Gaza and subsequently through the Kerem Shalom crossing between Israel and Gaza since December 17.

Trucks with aid arrive at the Gazan side of the Kerem Shalom border crossing, in the southern Gaza Strip, on January 17, 2024. (Abed Rahim Khatib/Flash90)

An average of 149 trucks of humanitarian aid have entered the territory every day over the last four weeks up to January 25, according to the UN’s Office for the Coordination of Humanitarian Affairs (compared to 500 a day before the war began).

It appears that since the ICJ’s decision on Friday, significantly higher numbers of trucks are already passing into Gaza, with 186 trucks passing through the crossings this Sunday and Monday alone, OCHA has said.

According to the Defense Ministry’s Coordinator of Government Affairs in the Territories (COGAT), 197 trucks entered Gaza on Tuesday.

Another issue is not only the entry of food, medicine and other humanitarian supplies into the Strip but also its effective distribution amid the ongoing hostilities, which has been a problem for UN agencies and aid groups on the ground.

The IDF already institutes daily pauses in combat operations to allow humanitarian aid to be distributed, and has done so from the beginning of the conflict.

The significance of the ICJ’s concern regarding the level of humanitarian aid going into Gaza should not be underestimated.

The court did not call on Israel to desist from acts of genocide but did cite numerous officials from UN agencies and humanitarian organizations who have commented on the dire humanitarian situation in Gaza and the severe effect it is having, and may yet have, on the welfare of Palestinian civilians in the territory.

It is possible, therefore, that the ICJ’s principal concern with Israel’s actions in terms of the Genocide Convention is Article 2c of the treaty, which prohibits “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”

The court quoted the World Health Organization and UN agencies regarding what they said was the extreme level of hunger in the territory and the potential for the spread of infectious disease, which could lead to massive loss of life.

Ordering Israel to alleviate the humanitarian situation in the Gaza Strip is therefore likely intended to ensure that Israel does not violate Article 2c, and compliance with that provisional measure is therefore of critical concern for Israel.

Displaced Palestinians flee from Khan Younis in the southern Gaza Strip on January 30, 2024. (Mahmud Hams/AFP)

Speaking during a session of the UN Security Council on Wednesday called to review the ICJ’s provisional ruling, Brett Jonathan Miller, Israel’s deputy permanent representative to the UN, insisted that “Israel remains committed to mitigating civilian harm and to facilitating access to humanitarian aid according to the law, despite all the challenges,” noting that Hamas theft of such consignments is widespread.

Hebrew media has reported that assessments given to Benny Gantz, a war cabinet minister, and Gadi Eisenkot, a war cabinet observer, have estimated that as much as 60 percent of aid trucks entering Gaza are being hijacked by Hamas.

Incitement to genocide

The third order, to prevent and punish incitement to genocide, will potentially be more difficult.

Article 3c of the Genocide Convention states: “Direct and public incitement to commit genocide” is a punishable act, so here again it is crucial that Israel comply with this provisional measure.

The ICJ’s decision cited the comments of three senior Israeli officials in relation to the allegations made by South Africa that Israel has failed to prevent and publish incitement to genocide.

In particular, it quoted comments by Defense Minister Yoav Gallant, President Isaac Herzog, and Foreign Minister Israel Katz (at the time energy minister).

The ICJ decision quoted Gallant as saying “I have released all restraints . . . You saw what we are fighting against. We are fighting human animals. This is the ISIS of Gaza. This is what we are fighting against . . . Gaza won’t return to what it was before. There will be no Hamas. We will eliminate everything. If it doesn’t take one day, it will take a week, it will take weeks or even months, we will reach all places.”

This citation appears to mostly rely on the incomplete quotes cited by the South African application.

Defense Minister Yoav Gallant speaks to troops near the Gaza border, October 19, 2023. (Ariel Hermoni/ Defense Ministry)

The remarks in question were made by Gallant on October 10, but he was not fully quoted either by the South Africans or by the ICJ.

During those comments to soldiers at an IDF base in the Gaza border region, Gallant made clear on several occasions that his bellicose remarks were directed toward Hamas and combatants. Parts of Gallant’s speech not included by South Africa or the ICJ include “we will eliminate Hamas,” “we will kill everyone who fought us,” and “Gaza will not return to what it was. Hamas won’t exist.”

Herzog was quoted by the ICJ as saying, “It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not aware, not involved. It is absolutely not true,” and that “when a nation protects its home it fights, and we will fight until we’ll break their backbone.”

He made these remarks during a press conference on October 12, but also repeated on three occasions during that event that Israel was operating and would operate according to international law, only one of which was cited by the ICJ.

The court also cited a post on X by Katz, who wrote on October 13: “We will fight the terrorist organization Hamas and destroy it. All the civilian population in gaza [sic] is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.”

The South African application included numerous other inflammatory comments made both by cabinet ministers and MKs, as well as musicians, journalists, former MKs, and former senior IDF officials, among others.

To comply with the ICJ order, it would appear that Attorney General Gali Baharav-Miara would have to open investigations and potentially prosecute those deemed to have engaged in incitement to genocide.

The court noted that just days before the hearings in The Hague, the Attorney General’s Office issued a statement saying that several incidents of possible incitement to harm civilians were being examined by her office.

Attorney General Gali Baharav-Miara attends a conference of the Israeli chapter of the Association of Corporate Counsel (ACC) in Tel Aviv, July 5, 2022. (Avshalom Sassoni/Flash90)

Dr. Assaf Shapira of the Israel Democracy Institute said he did not believe that any of the comments by government ministers made since October 7 actually amounted to calls for genocide.

But another complication is that sitting MKs and cabinet ministers enjoy “substantive immunity” from prosecution for committing a criminal offense if it was committed as part of their job, including criminal speech, which could make efforts to prosecute them for incitement more difficult

Shapira said, however, that an express call for the murder of civilians would be a criminal offense that would not be covered by substantive immunity.

But Bar-Ilan’s Bohrer noted that although even incitement to genocide is not protected speech, “where the line passes between incitement and free speech is not always clear.”

Baharav-Miara would also likely face a firestorm of criticism from the government if she opened an investigation into a cabinet minister, which might once again spark the kind of tensions seen between her, the judiciary and the government before the October 7 atrocities and the outbreak of war.

Still, she is entirely independent in terms of the discretion she has to open criminal investigations of elected officials.

Dr. Gal Levertov, a former director of the international division of the State Attorney’s Office, said it would be easier for the attorney general to prosecute public personalities who expressed potentially genocidal rhetoric than elected officials.

These could include comments such as those of former MK Moshe Feiglin, who posted on X that Israel should “flatten Gaza,” or journalist David Mizrahy Verthaim who said, also on X, that Israel should “turn the entire Strip into a slaughterhouse,” both of which were cited by the South African application.

But Levertov said that to prosecute only those who do not have immunity while failing to prosecute elected officials because of their parliamentary immunity could be seen as especially unjust and problematic in terms of public legitimacy.

Bohrer noted that there are also other ways to mitigate the damage done by intemperate comments. The Attorney General’s Office could, for example, ask those who have made such a remark to either clarify that they did not mean to imply that they were advocating genocide or, in a case where the remarks cannot be understood in any other way, to fully retract them.

President Isaac Herzog speaks to foreign journalists at his residence in Jerusalem on October 12, 2023. (Amy Spiro/Times of Israel)

Following the publication of the ICJ orders on Friday, Herzog did issue some clarifying comments, although he also denounced the court and said he was “disgusted by the way they twisted my words, using very, very partial and fragmented quotes.”

Herzog went on to say in his clarification that “there are also innocent Palestinians in Gaza,” and explained that his comments about broader responsibility by Palestinians related to “the involvement of many residents of Gaza in the slaughter, in the looting, and in the riots of October 7,” and “how the crowds in Gaza cheered at the sight of Israelis being slaughtered and their bodies mutilated.”

Levertov says that in order to be in compliance by the deadline for the report that the ICJ has requested, it would be sufficient for the attorney general to demonstrate that she has merely opened investigations into possible incidents of incitement to genocide.

Further down the line, if the court requests further reports, the attorney general would likely have to detail the nature of the investigations and either point to any indictments arising from them as evidence that Israel is seeking to prevent and punish incitement to genocide, or if cases are closed without indictments demonstrate there was no room for prosecution.

During the UN Security Council meeting on Wednesday, Miller insisted that Israel “makes rigorous efforts to draw the line between permissible statements, even those that express pain and outrage in times of crisis, and those which go beyond the limits of free speech.”

He also pointed to the Attorney General office’s statement that calling for intentional harm to civilians may amount to a criminal offense and that several cases are currently being examined by Israel’s law enforcement authorities.

The report, which is due by February 26, will likely be written by the Justice Ministry, and include input from the International Law Department of the Military Advocate General Corps in the IDF, along with the Foreign Ministry and the defense team that represented Israel in the ICJ.

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