Michelle Burgis-Kasthala is a senior lecturer in the Edinburgh Law School. Her teaching focuses on public international law and international human rights law. Her research centers on the operation of and contestation over international law across the Arab world. Before joining the Law School, Burgis-Kasthala was a lecturer in international law and Middle Eastern Studies for five years in the School of International Relations at the University of St. Andrews. Diwan interviewed her in late January to get her perspective on the recent provisional decision of the International Court of Justice in the case brought by South Africa against Israel, accusing the Israelis of committing genocide in Gaza.
Jasmine Khelil: Following the interim decision on January 26 by the International Court of Justice (ICJ) in the South African genocide case against Israel, there was much comment on how the ICJ’s decision impacted the status quo in Gaza. In this context, can you explain the United Nations Genocide Convention of 1948 and its relation to the South African case?
Michelle Burgis-Kasthala: I think that the impact of the decision on the conflict in Gaza was the crux of the positive and negative responses that we have been seeing following the court’s decision. A lot of people wanted more, or thought more could have been done. But the key thing is, a decision must always be linked to something specific in terms of the jurisdiction. There are three main ways that a case can be brought before the ICJ. One is through a treaty; the second is through states signing up for a case to be brought before the court; and the third is if states enter into a special agreement asking for the court’s help.
Israel was obviously never going to agree with South Africa to bring the case before the ICJ. Therefore, South Africa had to work out which treaties the other state had signed that might have some connection to the conflict at hand, a phenomenon that we have seen in terms of the Ukraine-Russia dynamics as well. The Compromissory Clause is a way through which a court’s jurisdiction is enabled and a case is opened. It comes down to working within the parameters set through the ICJ, so it may have been a different treaty that could have been used to fulfill a similar purpose.
I think people are frustrated because not everything can be achieved through the Genocide Convention. In this case, all evidence needed to be pinned to genocide, so that’s why ultimately, it was about the 1948 Genocide Convention, which functions as a standard within this case. States can choose whether they want to sign up to this convention and it has a provision stating that where there is a dispute over the interpretation of the treaty, states can take their dispute to the ICJ.
South Africa needed to show there was a dispute with regard to the scope or interpretation of the treaty. This was very clear, as was South Africa stating there was a case of genocide and Israel denying those claims. There was clearly a divergence in terms of how to apply the meaning of the treaty and this was the fundamental linchpin to establishing the court’s jurisdiction. Once the court has determined that it has jurisdiction, often it will have separate hearings about whether it can confirm this jurisdiction. Once it gets past the admissibility and jurisdiction phase, it reaches the merits phase and that’s the substance. But there is a separate possibility, which is called provisional measures, and the point of provisional measures is founded by the long-term duration of the case during its merits phase. The court’s sayings are focused on the preservation of the status quo. The two parties could not agree on the interpretation and application of the treaty, and therefore the court needed to ensure that things remained unchanged in the interim, especially when it came to the rights of the Palestinian people.
The court can order a certain conduct to try to ensure that the status quo remains the same. It freezes the status quo, so in that sense the court is not making any type of substantive determination. Given the bounds of what a provisional measure is, I think it did a great job. Within these constraints, I think we could not have expected more. The big problem that some people had with the provisional measures order was that it did not state that Israel could not conduct a military campaign. Therefore, it didn’t actually order a ceasefire. In the next month, Israel will try to craft a report that presents its conduct as law abiding, attempting to demonstrate that its operations did not target civilian infrastructure. From this moment onwards, anything Israel does militarily should very clearly fall within the bounds of non-genocidal conduct.
JK: What are the key elements that formed the foundation of the court’s ruling, and how do you think this decision will play out in the upcoming weeks?
MBK: I suppose it was partly about whether it had jurisdiction. It had to work out whether there was, as I said before, a case to be made, whether there was a dispute. Some people were challenging whether there was sufficient evidence of extensive disagreement between the parties. However, South Africa showed that it had protested and sent letters trying to engage with Israel before. It was really at pains to stress that it was not a substantive determination. I think the main dimensions that really pushed the court to make the decision it did was that it cited several high-level UN officials making statements about the systematic humanitarian catastrophe that was unfolding. It also linked those with the genocidal intent statements from Israeli officials. If you put those two together, there was enough of a threshold there to suggest a strong possibility that Israel had genocidal intent under international law. However, the ICJ preliminary decision did not say we actually have a proven case of genocide. The judge stated there was definitely such an imminent threat, which didn’t necessarily include all elements of a genocide, but rather of a catastrophe. Therefore, the ICJ made the decision to call on Israel to take the steps it demanded of them.
This didn’t amount to a ceasefire because, technically speaking, the court’s jurisdiction is not in relation to the use of force; its jurisdiction is not questioning whether Israel has the right to self-defense. Its jurisdiction is based on how Israel is potentially conducting itself in a genocidal manner. So instead, it had to state the ways in which, based on the treaty and Israel’s requirements under this treaty, Israel should be acting. Some people would say a ceasefire is possible, but I think it’s a stretch because the judges are operating so quickly.
JK: What are the potential consequences of the ICJ court ruling on the Gaza conflict?
MBK: Technically, provisional measures are binding. I suppose we should maybe think about what we’ve got. As you may know, we’ve got the ICJ 2004 advisory opinion on the wall Israel built in the occupied Palestinian territories, and now we have this court ruling; and potentially we’d have the merits later. And as you probably know, Israel did not respect the advisory opinion on the wall, saying it was advisory and the effect of the advisory opinion was essentially to give an answer to a question asked by the General Assembly (or it can also be one from the Security Council to the ICJ). In that sense, the opinion on the wall wasn’t a dispute. It laid out the situation and suggested legal effects for Israel and third states. In that scenario, Israel was not bound to any legal measures.
In this current situation, the situation is different for Israel. It has chosen to participate in the proceedings, and even if it hadn’t it would be different because it’s a two-state dispute. The court clearly established its jurisdiction and unlike the advisory opinion, it is a ruling and it is binding and we have the specific measures listed there. But as you know, the court doesn’t have an executive to back it up. Technically, the UN Security Council could do that, but we would have to consider that the U.S. veto would probably block any resolutions from going through. Essentially, we don’t have fight power through this. However, Israel’s reputation would be harmed, as it would look horrific to blatantly go against a ruling.
When it comes to the report Israel needs to file one month after the court ruling, I think it’s going to try to nuance it. Israel can’t possibly reject anything. On an international level, I think Israel will have to present itself as complying with the ICJ. However, the question is whether it will curtail its behavior on the ground. I think we need to see significant pressure from third states. For example, on the evening of the decision, the European Union called on Israel to implement the ICJ’s orders in full. I thought that was quite a strong statement because, so far, the European Union has been intentionally oblivious with regard to the war.
Essentially, I think the ICJ case is a very useful tool of pressure, but I don’t think it will change anything per se. Often, Israel does as much as it possibly can until it knows it has reached its limits. Usually, that’s when the United States reins it in. Right now, Israel knows it can keep continuing because I don’t think it’s faced enough U.S. pressure. But again, I think some third states will now be putting more pressure on the Americans because of the ICJ release. Ultimately, I think it will be the United States that determines when this stops and how it stops.
JK: In what ways does this case impact the credibility of the wider international system of justice?
MBK: I suppose it would have been a real loss if the judges came out not issuing any orders. After the South-West Africa cases in 1966 (in which the ICJ rejected claims by Ethiopia and Liberia that South Africa, through its apartheid policies, was in breach of its duties as a League of Nations Mandatory power over South-West Africa), no state in the Global South paid any attention to the court. In particular, the ICJ this time seemed mindful of that terrible history. The court had a responsibility to ensure that it was seen to be cognizant of the injustice in terms of the ongoing colonial logics in Palestine. So again, we have this dynamic of David versus Goliath, and this also came out with the Russia-Ukraine war. Therefore, I think it was great that the court issued the orders quickly. For this case, we have seventeen members, because in a situation where there’s no judge from the states that are party to the case, those states appoint their own judge. We had to have nine votes in favor to pass the provisional measures order; we got fifteen votes in favor and two against. I think that’s a huge victory. It is not a ceasefire, but I don’t think that should have been expected in the first place. Moving forward, it is about the extent to which states and institutions are going to be willing to use their capital to invest in ensuring that Israel respects this court decision. This case is symbolically loaded as it represents the Global South showing that if Western states are not ready to back the accord, then all gloves are off.
