Fact Check: UN Court Did NOT Order Israel To Halt War on Hamas – Here’s How the ICJ Is Allowing the Media and Pro-Hamas Propagandists To Lie to You

South Africa’s proceedings against Israel at the International Court of Justice (ICJ) have now clearly become a joke, and the ICJ is allowing that to happen by couching its Orders in legal jargon that most lay people do not understand, and Israel’s enemies can easily distort to their own malicious ends.

The ICJ issued a first provisional measures Order on January 26, 2024. Most people misinterpreted it, perhaps even on purpose. Likewise, today’s Order will also likely receive the same treatment.

In the ICJ January 26, 2024, Order in South Africa v. Israel, the Court stated: “[T]he facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.” (emphasis added) This language has been intentionally misunderstood to the detriment of Israel.

For example, some in the international community have inaccurately stated: “[I]t is plausible that there is a case under the Genocide Convention”; “that South Africa’s claim of a violation of rights under the Genocide Convention is ‘plausible’”; “that South Africa made a plausible case that Israel is violating the Genocide Convention”; and “it was plausible that genocide was being committed in Gaza.” These statements do not accurately convey what the Court decided, and they are damaging to Israel. Who else would be better suited to explain what the Court meant than Judge Joan Donoghue, who was President of the ICJ at the time of the decision?

In a BBC interview after the Order was announced, and in response to all of the false information, Judge Donoghue explained:

[The Court] did not decide – and this is something where I am correcting what’s often said in the media – it didn’t decide that the claim of genocide was plausible. It did emphasize in the order that there was a risk of irreparable harm to the Palestinian right to be protected from genocide. But the shorthand that often appears – which is that there is a plausible case of genocide – isn’t what the Court decided. (emphasis added)

As Dr. Roy Schöndorf explains, “[T]he threshold of plausibility is very low, even nominal.” The ICJ first “merely considers whether there is a plausible link between the claimed rights and the relevant treaty; and second, that alleged facts were brought before the Court with regards to the claimed violation of those rights, regardless of their veracity or strength.”

Despite Judge Donoghue’s clarification, the international community continues to misinterpret the ICJ Order. This is exactly what will happen with the ICJ’s new Order on the request for modification announced on May 24, 2024.

In addition to reaffirming the previous Orders (which did not require a ceasefire as requested by South Africa), this is what the Court announced in today’s Order:

The State of Israel shall, in conformity with its obligations under the [Genocide Convention], and in view of the worsening conditions of life faced by civilians in the Rafah Governorate: . . .

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 . . . . (emphasis added)

On its face, the language could be misunderstood to mean that the Court is ordering Israel to halt its military offensive. And that’s how South Africa and those who support its position will doubtless interpret it. Note, however, that the ICJ cannot order Israel to stop any military operations that do not violate the Genocide Convention. Further, the ICJ’s jurisdiction in this case is under the Genocide Convention and only under the Genocide Convention. The Court is not determining the legality of Israel’s military operations under International Humanitarian Law (IHL) (i.e., Article 51 of the U.N. Charter, which recognizes a sovereign state’s right to defend itself, and Geneva and the Hague Conventions, which deal with parties’ conduct during an armed conflict). Simply put, the Court has no authority to tell Israel to halt its military operation against Hamas – especially since Israel’s actions were taken in self-defense.

Any military offensive that conflicts with the Genocide Convention is what the Court may prohibit. And that is what the Court has ordered today, i.e., halt any military offensive that might violate the Genocide Convention. No determination has been made as to whether Israel’s conduct, in fact, violates the Genocide Convention.

In fact, in response to South Africa’s application for modification of the provisional measures, Israel provided specific evidence refuting South Africa’s generalized claims it made while sitting outside the conflict zone. After restating South Africa’s generalized claims and Israel’s specific responses, the ICJ then relied on U.N. officials’ statements, which are also of a generalized nature, and ordered the provisional measures.

However, as I noted earlier, the Orders simply cater to the political environment and do not state what most would take them to mean. Legally, the Orders are limited to the issues under the Genocide Convention and not the overall conflict, i.e., Israel must ensure that the Genocide Convention is not violated and halt any military actions that may violate the Convention. This is exactly what the ICJ ordered on January 26, 2024, in the first Order indicating provisional measures. Israel already agrees with it and is complying with such obligations. As to Israel’s efforts to comply with the IHL, i.e., not intentionally directing attacks on civilians, distinguishing between military targets and civilian objects, necessity and proportionality, and mitigating civilian harm by taking every precautionary measure, Israel is already doing more than what any other state could have done.

Earlier this year, we sent a legal memo to many of the countries with judges on the ICJ explaining the law on this issue, and we will continue fighting to defend Israel from this blatant lawfare.