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Upon consideration of South Africa's request for the modification and the indication of provisional measures submitted 10 May 2024, the International Court of Justice has issued it order of 24 May 2024 modifying its order of interim measures of 24 March 2024. Bu votes of 13 for and 2 against, the ICJ
Reaffirms the provisional measures indicated in its Orders of 26 January 2024 and 28 March 2024, which should be immediately and effectively implemented;
Indicates the following provisional measures: The State of Israel shall, in conformity with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in view of the worsening conditions of life faced by civilians in the Rafah Governorate--
(1) Immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part; (2) Maintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance; and (3) Take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide;Decides that the State of Israel shall submit a report to the Court on all measures taken to give effect to this Order, within one month as from the date of this Order (Press Release)
Of course, none of this will happen.
1. It is not clear that Israel and other States (or their governments) view the decision and these measures as legitimate (the two dissenting opinions hint at this but not in any way that is likely to have impact among those already committed to the result reached by the ICJ). In the absence of effective appeal, other than to the political apparatus of the U.N., these States might well take their chances acting on their conviction of illegitimacy or error. The foundations of error, from that perspective might be based on impunity as a function of effective risk shifting; that Israel is made to bear the legal effects of Hamas now exceptionally valuable tactical decision to place military assets and operations in places that would ensure substantial civilian casualties.
2. The military offensive is unlikely to be halted; the military objective--to cripple the ability of Hamas to repeat the success of its 7th October operations, and then the cognitive warfare thereafter--is unlikely to be affected by the legal reasoning of the ICJ. Moreover, the signalling effect of a halt is a factor that could not be taken into account within the four corners of the jurisprudence but which is likely very much on the minds of the Israeli military that must consider the situation at its Northern borders and the beyond them. Juridical reasoning grounded in a more abstracted engagement with text--however plausible--may have little relation to the calculus of risk and loss from the Israeli side.
3. It is at the moment unclear that Israel and its allies view elements of the UN apparatus as neutral or disinterested in a specific outcome or objective. From that perspective, some UN officials have been viewed as active participants in the events of 7 October, and if not directly involved to have facilitated and served as leverage for the military and cognitive operatives of Hamas before that operation. In addition, from the religious point of view, it is likely that Israel will continue to view the criticism as just another episode in millennia old patterns of dealing with a substantially despised (and sometimes feared) population Whatever the realities, that produces a singularly low level of trust in whatever assurances or performances of (especially critical) States with long histories of unfortunate relations with "their" Jews.
4. The Rafah border crossing measures are an interesting proposition--one that manages to all but eliminate Egypt from the picture. As such, it might be possible that the measure might be viewed, at best, as a half measure without some sort of mandatory measures directed against a State not party to the proceedings. On the other hand, the Israelis would do well to heed the message embedded in the jurisprudence--civilians must be taken care of when under one's control--however angry one might be about the circumstances that brought them to that state. And it was a missed opportunity that fueled the jurisprudence--to aid civilians, detect and detain everyone else.
But that is not the point. The point is the jurisprudence, in part. The point is also the suffering, death and destruction, that this conflict has generated since the Hamas operation was put into action on 7 October 2023, in part. There can be no denying that conflict in this case especially since 7 October has been brutal. And it has fallen on individuals who are not primary combatants (though at some point the issue of combatants under conditions of total war will have to be addressed as other than a propaganda trope). This is a conflict as much about this brutality and its imagery as it is about the underlying normative, historical, and religious animosities the fuel it. The aligned mimesis of physical combat and its recording in virtual, digitized spaces, has reshaped the nature and scope of combat in ways that have yet to be understood (though its exploitation is already better understood). But the magnitude of suffering tends to hide the harder issue--the issue of the allocation of responsibility. And within that question rests another, more thorny one--the question of impunity for strategies grounded in the deliberate or reckless or negligent use of civilians as buffers ad shields. Perhaps too much blood has been spilled, and too much suffering recorded at the moment to think about the issue in helpful ways. But the jurisprudence appears to be tilting toward a standard in which constructing a military strategy premised on the critical role of human shielding effectively shifts the responsibility for civilian causalities to the opposing force. Human beings, according to this jurisprudence, effectively make an impregnable military fortification. That cannot be right; yet for the moment it appears to be the effective operating assumption of the jurisprudence in the sense that the better the human shield strategy is operationalized (that is by maximizing casualties and damage to breach the shield) the more likley that the opposing force will bear responsibility for its breaching. Either new strategies will have to be developed; otherwise it may be harder for States to resist the temptation of human shield strategies may be irresistible. All combatants have the responsibility to avoid or minimize harm to civilians and their surroundings; but its application to modern context where fortification strategies are built around human shielding appears underdeveloped and at least for the moment uninteresting to those with engaged in the development of the jurisprudence of managing war. And noncombatants under one's control require a minimum of care.
And that brings us back to the jurisprudence around which the reality of this combat is constituted. With respect to the jurisprudence, and the legal structures around which it has been "activated," it might be useful to recall that this is a jurisprudence the legitimacy of which ought not to be undervalued. Nor should the legal structures which well meaning people and institutions have fought hard to establish be dismissed lightly. hat critical judicial role and of actors in other bodies clothed with
the performative aspects of the judge, are essential social instruments
for constituting the framing of a reality within which collective and
individual action is received, analyzed and judged (considered here, here. It is where people's are constructed and their characteristics assigned; where storytelling becomes fact and fact presumption (considered here). South Africa appear both conscious and adept at the art of the cultural instrumentalization of judicial and quasi judicial spaces; the Israelis much less.
But the empire of law, like other forms of empire, evolves, and sometimes not in a straightforward manner. The jurisprudence, either way, provides a necessary cover to undertake measures that might otherwise raise issues of legitimacy (or at least legality). One is reminded here of the situation in Honduras in 2009 (Democracy Part XX: Democracy With or Without Elections in Honduras). More important may be the triggering effect of the decision, and the response (or lack of it by Israel) where domestic law may be triggered by international findings. In this case, the ICJ actions may either force or incline States otherwise wiling to advance to tolerate Israeli objectives against Hamas and to maintain their economic, military, and political relations, to reduce or end their "facilitation" of Israel. That would be the ideal objective--beyond, of course, using the ICJ to force some sort of cease fire in the absence of a willingness by the party combatants. The value added would be the delegitimation of Israel as it is currently constituted which would then make other, and perhaps bolder, political objectives possibly more plausible. That effect is unlikely in the short run.
The value of all of this effort at the ICJ, in the longer term, might also include the effort to (finally) realize, if only on a discretionary basis, another step toward the legalization of war. It provides a quite fascinating window into the ancient categories of civilian and combatant that while quote important may require some thinking at its edges in an era of total war or in the context of wars of liberation. Certainly there are a number of other places where populations might be watching the results closely. Understudied, for the moment, are the economics of undertaking the sort of actions--on the ground and within the battlefields of international organizational apparatus, in social media, in the deployment of effective propaganda strategies and the like--which are essential components for successfully waging these sorts of campaigns.
In any case, all of this is speculation, and of very little consequence. Far more interesting will be to watch and understand the way that the consequences evolve. This is merely one small part of a much larger effort, through the organs and mechanisms of law and international institutions, to develop a play book for the management of States. Of course, if at the end of all of this a sui generis narrative is developed, one suggesting that all of this effort and all of this jurisprudence, and the actions it will legitimate are unique to the singular circumstance presented by this context, without any application elsewhere, then one will be faced with a much more ancient and well worn reading of the efforts and its conclusion. Otherwise, the global implications elsewhere may be quite profound, indeed.
Virtually all of the documents relating to these proceedings may be accessed here in English and French: Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).
The order may be accessed here: English; French.
The press release may be accessed here: English, French.
The Summary may be accessed here: English; French
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