Initial reflections from this Israeli political science scholar on the ICJ measures decision:
1) At present, the court is basically calling on Israel to not commit genocide, ensure provision of humanitarian aid to Gaza, and provide a report on the measures it is taking to this effect.
2) The provisional ruling, as announced, rests on reports from the UN Secretary General, the UN Human Rights Council, and UNRWA
3) The court cited statements by prominent members of the Israeli government regarding its intent to destroy Hamas and committing to a changed reality in the Gaza strip
On points (1) I find very little with which to disagree, and if you take note of those of Israel’s ad hoc representative to the court, Aaron Barak, neither does he. Israel remains firm in its assertion that it is not committing genocide, is doing what it can under tremendously difficult circumstances to provide humanitarian aid to the obviously suffering population of Gaza, and at least nominally intents to take action against those incredibly irresponsible voices in Israel that are calling for exactly the opposite.
On point (2) as others have mentioned, it is galling to say the least that these are the voices upon which the court appears to be basing its provisional measures, but as President Donahue repeated multiple times, this is a decision about provisional measures, and is not subject to the same evidentiary requirements of actually determining whether genocide is taking place.
Where I and many other Israelis are deeply concerned is that the “evidence” will not be impartially collected or considered if these sources are any hint of from where the court’s evidence will be gathered.
I have little confidence that Israel’s report to the court, which will be due shortly to the ICJ, will be taken seriously. But I am also deeply concerned that the sitting government will simply reject the requirement to submit such a report. This would be deeply arrogant and foolish even if the outcome seems predetermined. It would also be altogether inconsistent with Israeli before toward international legal institutions up to this point. So, I am hoping to be proven wrong.
As to point (3), I found the court’s choice of statements to be puzzling. The choice to ignore the statements of strident racists like Ben-Gvir and Smotrich and highlight those of Gallant and President Herzog (among others) feels like it is about demonstrating genocidal intent is mainstream. However, anyone with any understanding both of the context of the statements in which these comments were made and of the direct intent of the statements themselves, can easily discern that they are explicitly about targeting and (wanting to) destroying Hamas, not to commit genocide. A belief that there is a large population wishes you dead and the open expression of that belief does not constitute genocidal intent. If it did, then not just Hamas or PIJ but the Palestinian Authority, Fatah, and “moderate” Mahmoud Abbas would be guilty of genocidal intent.
Regardless, as an observer of the court’s decision and having been no way involved, I cannot say what the future will hold from the ICJ. I am anxious but remain hopeful that Israel will take the responsible legal course of action while quadrupling its efforts to avoid civilian casualties.
These posts were initially published on my Bluesky feed on 26 January 2024, with mild editing for content and consistency.
Dr. Ariel Zellman 