One month ago, the International Court of Justice (ICJ), the UN’s top court, ordered Israel to take “immediate and effective” steps to increase the provision of basic services and humanitarian aid in the Gaza Strip. Since then, top UN aid officials say the amount of assistance entering Gaza has actually decreased as young children have reportedly begun to die of hunger in the enclave amid Israel’s ongoing military campaign.
The ICJ’s order was part of the court’s 26 January interim ruling in the high-profile case brought by South Africa accusing Israel of committing genocide in Gaza. The judges found “at least some” of the allegations to be “plausible” and ordered Israel to take provisional measures to prevent the commissioning of acts of genocide, including by increasing humanitarian assistance and the provision of basic services in the enclave.
With Israel due to submit a report on its compliance one month on, The New Humanitarian spoke to Tom Dannenbaum, associate professor of international law at the Fletcher graduate school of global affairs at Tufts University, to gather some insights on where things stand.
Given what has transpired in Gaza since, “it's pretty clear that [Israel] hasn't [complied], specifically on the order to take immediate and effective measures to enable humanitarian access and the provision of basic services,” Dannenbaum said.
The discussion also centred on the deteriorating living conditions in Gaza, the barriers preventing an effective humanitarian response since the ICJ’s order, whether the ICJ and other such institutions can help prevent atrocities, and the broader significance of the genocide case to an international legal system often accused of double standards.
This interview has been edited for length and clarity.
The New Humanitarian: Based on what we’ve seen, has Israel complied with the ICJ’s provisional measures order?
Tom Dannenbaum: Those terms, “immediate and effective”, are the key here.
There is not adequate food, potable water, fuel, shelter, medical care, et cetera, in the Gaza Strip, especially in northern Gaza. And there are multiple components of what's happened since that 26 January order that are incompatible with compliance with the specific requirement to take effective and immediate measures to enable humanitarian assistance and the provision of basic services: the tempo and impact of military operations; mobilising allies to cut off funding for UNRWA; Israeli minister of finance Bezalel Smotrich issuing an order to block flour shipments that had already arrived to the port of Ashdod because the recipient was going to be UNRWA; strikes on humanitarian convoys and medical facilities; and reports by multiple independent humanitarian actors that there simply is not sufficient humanitarian access.
Médecins Sans Frontières Secretary General Christopher Lockyear presented at the UN Security Council on 22 February, and he described the humanitarian response in Gaza today as an “illusion”. The World Food Programme (WFP) said they can't deliver aid safely to northern Gaza, in part because of the desperation of the population, but also because of the failure to properly deconflict to facilitate access to that part of Gaza and the consequent lack of safety for WFP actors to deliver necessary aid. The Global Nutrition Cluster has reported that over 15% of children under two in northern Gaza are acutely malnourished. UNICEF has described the speed of deterioration as globally unprecedented.
So there are multiple reasons to believe that there has not been compliance with the order.
Recently, there was a report that Israel will open the Karni crossing between Israel and Gaza, which has been closed since 2011. That would be a desirable and important development, as it would facilitate urgently needed humanitarian access to northern Gaza. However, this news came days before Israel was due to report to the ICJ and, as far as I can tell, it has yet to be confirmed by the government.
The New Humanitarian: Even if that crossing is opened, all of the barriers facing aid distribution in Gaza would also still be present?
Dannenbaum: Absolutely, opening that crossing alone is not going to be sufficient. There needs to be a significant scaling back of military operations. There needs to be full deconfliction with humanitarian actors to make sure that they're safely able to access populations in need. Absent those changes, all sorts of problems would still exist that would preclude full compliance with the ICJ order. So that would be a desirable step, but I don't mean to suggest that it would be sufficient.
One thing to just emphasise is that different actors are making contradictory claims. The Israeli government is claiming that it is in compliance with the ICJ order, and that it was in compliance even before the order was issued.
The thing that I think is most compelling here is that multiple independent, neutral humanitarian organisations with no record at all of any kind of bias or partiality on these issues all have the same message, which is that there’s nowhere near enough aid, that there are still major obstacles, that there is insufficient deconfliction, and that they’ve received strikes on their convoys and medical facilities.
So, the consensus among those actors is clear, and that has to weigh very heavily in evaluating what’s going on on the ground.
The New Humanitarian: What happens after Israel submits its report to the ICJ? What if the ICJ finds that Israel has not complied with the order?
Dannenbaum: Israel’s report is confidential. So unless Israel or the ICJ decides to make it public, we're likely not going to see Israel's report.
What exactly happens next after the report is submitted depends on how the court reacts to it. Beyond that, it depends on whether South Africa decides to try and initiate further hearings for further provisional measures. All of this would still be at the provisional measures stage as opposed to the merits of the case stage, which is going to take years.
The court already had the opportunity to issue new provisional measures, following South Africa's communication requesting the court to reevaluate given the urgency of the impending assault on Rafah. But it chose not to.
Now, if the court is unsatisfied with Israel’s report, it could issue further provisional measures. These could include requiring good faith negotiations towards a ceasefire, or a cessation of hostilities in certain areas or across the entire area of Gaza. There are various things that it could do that could go further than its initial order. At a certain point, it might feel compelled to do that. If it doesn't, then South Africa can, either on the basis of new facts or on the basis of changed circumstances, request an additional hearing with respect to the issuance of new provisional measures.
The New Humanitarian: If the interim ruling and the provisional measures that were ordered have not been effective at reducing the level of death or humanitarian suffering, what does that say about the effectiveness of the ICJ as an instrument for stopping atrocities as they are happening?
Dannenbaum: Well, the ICJ itself can't stop atrocities while they're happening. It's a court. All it can do is what it's already doing, namely order provisional measures, hear cases, and issue rulings on those cases. But it can't itself enforce its provisional measures orders.
What the current order provides is a focal point around which states can mobilise as the enforcement agents, most obviously through the UN Security Council. The problem is that the United States is using its veto. The UK, in the most recent vote on 20 February, provided political cover to the US by abstaining. Its position of abstaining rather than vetoing may be informed in part by the ICJ proceedings, but it has the effect of reducing pressure on the US.
In that sense, the US and, now to a significantly lesser extent, the UK have blocked the effective use of the Security Council as the enforcement mechanism. Although it weakens the court’s impact, the failure of the Security Council to enforce the provisional measures order is undermining more of the Council’s legitimacy rather than the court’s.
The Security Council is also not the only available enforcement agent. States can withhold arms or military aid. And civil society actors can use various tools, including litigation and political mobilisation, to influence them to do so. Those avenues are being pursued in various states. The ICJ’s decision provides an important tool for those involved in such efforts.
In this particular case, in which Israel is highly resistant to any kind of impediment to its actions, and where you have permanent members of the Security Council who are willing to shield those actions – even at significant political costs to themselves – then it’s very difficult to enforce the law.
In principle, we could see a parallel litigation at the ICJ – against the United Kingdom or other arms suppliers, for example – for failing to prevent genocide, which is an obligation under Article I of the Genocide Convention. And the more that this escalates, the more likely that kind of parallel litigation becomes, although that's, of course, politically costly for whichever state would bring the litigation.
The New Humanitarian: What is the significance of this case in terms of being a litmus test for the moral authority of the ICJ and the global justice system? In a world where the ICJ’s authority was respected across the board, an interim ruling and provisional measures orders like this might be more difficult to ignore.
Dannenbaum: This isn't the first challenge to the authority of international law. There are prior cases and prior situations that one can look to. But the current failure is stark and it has the potential to significantly erode institutional and legal authority. That would also limit the efficacy of this system in situations where the states that are failing to enforce this order want the ICJ to be effective. So it’s going to undermine their interests too.
The main way to mitigate that effect and reverse the trajectory is for those states with the requisite leverage over Israel to use that leverage to its full extent with the urgency that the situation demands.
The New Humanitarian: Is there a flip side to the coin where this case could increase the moral authority of the ICJ globally?
Dannenbaum: Yes, there is that possibility. International legal institutions have often been seen as working primarily in the service of powerful states, while failing others. That frustration is long standing, and it has been exacerbated by various trends.
If there were ultimately to be some effective accountability in this case – and others like it – it could help to reverse that to a certain extent. So there is that possibility, and I think South Africa bringing the case in the first place, the provisional measures being ordered by an overwhelming majority of the judges, and the facts in the case being read out, maybe especially by an American judge, were important moments in potentially infusing this system with some legitimacy and credibility within the audience where that credibility and legitimacy is lowest.
But it depends what happens next. If those prove to be words that are then ignored, then of course the system’s legitimacy and credibility would be diminished.
The New Humanitarian: Has the case already had any positive impacts, even if it hasn’t succeeded at reducing civilian harm or increasing the provision of humanitarian assistance?
Dannenbaum: In this situation, the ICJ has acted with urgency, clarity, and a clear grounding in the law. It cannot enforce the provisional measures it ordered, but it has provided the legal basis for others to act.
There’s also important expressive value in speaking the truth about what we know regarding what's happening on the ground right now and the fact that there is a plausible risk of the irreparable harm to the rights of Palestinians in Gaza under the Genocide Convention.
Given the urgency of the humanitarian crisis, an expressive act on its own is obviously woefully inadequate. So it's important, but it pales in comparison to the urgency of the need.
The most significant impact might be the degree to which it's changing the internal dynamics within the states that have the most leverage. For example, the Netherlands has paused its military supply because of a domestic court order. The question is whether the political and legal dynamics within states with greater leverage than the Netherlands can cause them to halt arms supplies or stop an assault on Rafah at the scale that is being threatened.
The opening of Karni crossing to allow for greater humanitarian access in northern Gaza would also be an important effect, if it happens.
To be clear, that does not mean that these would be sufficient impacts. The situation is at such a catastrophic level that it needs full spectrum humanitarian assistance at massive scale with a total cessation of hostilities. And even then, there will still be significant enduring disease, malnutrition, and death because of the gravity of the situation as it stands.
So, even the best-case scenario involves horrific suffering. There are ways that the processes we've discussed could mitigate that horror. But it's important to temper expectations here and not be unrealistic about what's going to happen.
The New Humanitarian: Hearings began in a second case last week, this one initiated by the UN General Assembly, asking the ICJ to issue a ruling on the legality of Israel’s occupation of the Palestinian Territories. How does that case fit into the picture we’ve been discussing? What is its significance and potential impact?
Dannenbaum: The cases are very different. One is a concrete case between two parties pursuant to which the court’s authority is binding. That's the case between South Africa and Israel under the Genocide Convention, and it's specific to the Genocide Convention because that is the basis for the court's jurisdiction.
For that kind of case to happen, you need the consent of the parties, and they've given that consent through the Genocide Convention. But, absent a treaty that has that kind of mechanism, you can't bring Israel to the ICJ without Israel's consent.
The other case is an advisory opinion, which means it's formally not binding. However, this is the highest court in the UN system. It will be answering a question of law, and that itself is highly significant, despite not being directly binding on Israel.
The flip side is that the advisory opinion is not limited to the issues where Israel has consented to jurisdiction. It covers the legality of the occupation and of various components of the occupation, such as the settlements, the question of apartheid, and so on. It isn’t connected specifically to what's been happening since 7 October. Indeed, the General Assembly requested this opinion more than a year ago.
Ultimately, the court's advisory opinion will still have potential as a focal point around which to mobilise. And the question will again be whether that mobilisation will be effective. What kinds of tools will states use to try and bring that opinion into reality in terms of outcomes on the ground? That remains to be seen.
This is not the first time the court will issue an advisory opinion in relation to Israel's occupation. It did it in 2004 in an advisory opinion that was limited specifically to the wall in the West Bank. That opinion obviously didn't change that much.
The New Humanitarian: Is the amount of attention that is being paid to these cases an anomaly because the issue of Israel and Palestine commands a unique amount of global attention, or does this represent a broader shift in the way that the court is being used and is functioning in the global system?
Dannenbaum: There are two different questions there. There is a shift in the way that the court is being used. For example, we are seeing a significant increase in Genocide Convention cases, including cases where the party that's bringing the case doesn’t have a direct interest in the alleged violations.
In 2019, The Gambia brought a case against Myanmar under the Genocide Convention with respect to genocide against the Rohingya, similar to South Africa bringing a case against Israel. In both of those cases, this outside state was acting as an agent of accountability within the international system to bring an alleged violator state into compliance. And that is fairly new.
Similarly, with respect to advisory opinions, we've seen a significant uptick in advisory opinion requests. So, states are showing a heightened desire to use the ICJ as an authority on international law to try and make progress on challenging issues.
With respect to attention, I think there are two components. One is, as you suggested, that the Israel-Palestine situation generates more attention than any other situation, all else being equal. There have been high-profile cases before, Nicaragua versus the United States in the 1980s, for example, or the Ukraine-Russia cases. But this one has a unique draw in terms of the global public attention.
That has also elevated attention on the court more generally, including in cases not involving Israel or Palestine. Additionally, I think the fact of the genocide case has amplified the attention on the occupation advisory opinion.
Another thing, which is maybe less interesting because it's more obvious across multiple areas of our lives, is social media. The ability of everyone to just log on to the internet and watch these hearings is such that the attention compared to, say, Nicaragua vs. the United States in the 1980s, is inevitably greater just because of the ease of access.
The New Humanitarian: There's a fairly widely held view that there's a double standard when it comes to the international justice system – that it applies to countries in the Global South or adversaries of Western countries, but not to the US and its allies, including Israel. Do you think that view is fair? And, given that view, what is at stake for the ICJ with the this Israel genocide case?
Dannenbaum: When it comes to the perceived legitimacy of the ICJ and the international justice system more broadly, I think it's pretty obvious that there's a double standard, that not all states are treated equally under international law, and that not all actors in the international system are treated equally.
That was already a hurdle that US and European actors were facing in trying to generate support for accountability mechanisms with respect to Russia's invasion of Ukraine. Obviously the International Criminal Court is active there, but there's also the issue of the aggression itself. European actors in particular, supported by the United States, are still mobilising towards creating a special tribunal to try Russia for the crime of aggression because the ICC doesn't have jurisdiction over aggression in that particular context.
That was already an uphill battle, given that the reason that the ICC doesn't have jurisdiction over aggression in the context of Ukraine is that the United Kingdom and the United States played a critical role in straitjacketing its jurisdiction on that specific crime. So there was already a perception that that effort was itself born of double standards.
There was a lot of diplomatic work going on to try and overcome that perception and to try and use this as an opportunity to revitalise international criminal law.
That, I think, was always going to be contingent on the actors that had prevented the development of an aggression jurisdiction at the ICC reversing that earlier posture. But now it's in even greater jeopardy because of the position that those same countries have taken with respect to the application and enforcement of international law in the context of Gaza.
So, this situation has the potential to undermine the trajectory of international law or to revitalise it. But it's contingent on the states that have created the double standard acting to reverse it. If they don't, the system from which they benefit will ultimately suffer.
And just to be clear on the Ukraine situation: Russia has also long been a beneficiary of double standards and Ukraine has not. Russian leaders should absolutely be held accountable for the aggression against Ukraine.
The New Humanitarian: Is there anything else you want to add?
Dannenbaum: We didn't talk that much about ICC action in this context but I think that it is as important as the ICJ and it could also play a significant role here.
The prosecutor of the International Criminal Court has an open investigation regarding the Palestine situation. His office has a broader jurisdictional authority than the ICJ in this context, as it includes not only genocide, but also war crimes and crimes against humanity, and it covers crimes committed on both sides of the conflict.
Action at the ICC is entirely independent from the ICJ, but the factual basis for the ICJ’s assessment at the provisional measures stage is relevant to multiple war crimes and crimes against humanity, including, notably, the war crime of starvation of civilians as a method of warfare. The ICJ’s warning of the perilous situation in Gaza and its clear legal significance may increase the urgency of the ICC prosecutor’s investigations.
Edited by Andrew Gully.
