International Court of Justice Ruling: Despite the Hectoring Rhetoric, a Win for Israel

For 35 minutes, the International Court of Justice bad-mouthed Israel, but then it surprised the Jewish state by not issuing any practical orders against the IDF.

There was no order to cease the war and there was no order for the IDF to withdraw from Gaza.

Those were the most important victories for Israel at The Hague. There surely was great disappointment, I should think, in Pretoria, Ramallah, and Khan Yunis, when they realized what the ICJ had not demanded of the Jewish state.

The most troubling practical item in the ruling for Israel is the need to report back to the ICJ in one month, something which leaves the door open to a more serious order at that time.

All of the other measures that the ICJ ordered are items that Israel says it agrees with in general: don’t commit genocide, facilitate humanitarian aid, preserve evidence for probes of alleged war crimes, and prosecute Israelis who engage in illegal incitement against Palestinians.

To understand the complex ICJ decision and why this was a big win for Israel, one needs to understand the difference between declarative and operative law.

Declarative law is basically asking or advising a party to do something but with no teeth.

Only operative law has teeth and punishments.

In fact, the ICJ conclusions are only declarative. The ICJ has no enforcement mechanism. Its decisions can help put pressure on a party to a dispute, but there is no way to force a state — say, Israel — to comply with its decisions. Were the ICJ, for example, to demand that Israel agree to an immediate ceasefire, and Israel were to refuse, there would be no way to make the Jewish state do so. On the other hand, such a refusal might lead Israel’s key allies, including the U.S., to increase pressure on the Jewish state to comply.

No definitive action against Israel taken

Israel’s critics hoped there would be an order to end the war and withdraw the IDF. They had every right to expect such a result after the ICJ declared Israel’s West Bank security barrier illegal in 2004 and ordered Israel to remove it.

This would have put Israel in the uncomfortable position of either giving up on its national security to comply or being a public offender [sic] of the ICJ’s decisions.

This would also have put Israel’s allies in a much harder position and possibly led some of them to penalize Israel diplomatically and even economically.

All of this would have had a real-world impact on Israel and the war effort.

Instead, the ICJ heavily criticized Israel for killing Palestinian civilians and causing destruction, but avoided any immediate conflagration [sic] with Israel….

This criticism was, of course, unfair. The ICJ refused to recognize the hellishly difficult nature of warfare on a densely populated urban battlefield. It did not seem impressed with the enormous efforts the IDF has taken to minimize civilian casualties. These include warnings the IDF gave initially to civilians to leave northern Gaza when that area was about to become a battlefield; 900,000 of those civilians heeded the warning and moved south. to relative safety. Similarly, when the IDF subsequently moved its main operations to the south, it dropped leaflets and sent emails that provided maps showing exactly where the IDF would not be operating, so that civilians could move to those areas. Furthermore, the IDF routinely has been warning civilians in Gaza, by messaging, emailing, and leafleting, when a civilian building — a school, a mosque, an apartment building — is about to be targeted. Of course all these warnings also alert Hamas operatives, but that has been a price the IDF has been s willing to pay in order to minimize civilian casualties.

In warning civilians in Gaza, the IDF has so far dropped six million leaflets, made 14 million pre-recorded telephone calls, and 72,000 personal calls. It is the only army in the world that warns its enemy in such a manner. For that, and other reasons, British Colonel Richard Kemp has called the IDF “the most moral army in the world.” Perhaps, upon reflection during the next month, the ICJ judges will come round to seeing the justice of that verdict.

The intensity of the war has already wound down in the north, where tens of thousands of IDF Reservists have been pulled out, and where the IDF has decreased the number of airstrikes and focused instead on targeted killings. That may now happen in the south, once the city of Khan Yunis has been entirely subdued.

While Hamas is already spinning the ICJ decision as a great victory for its side, it is nothing of the sort. Israel has not been charged with “genocide,” but told only to make efforts to “prevent genocide.” These are different things. The Jewish state has never engaged in “genocide,” so the ICJ need not worry about that score. Israel has not been told to pull out of Gaza; the ICJ recognized the atrocities of October 7 and the right of Israel to self-defense. It also spoke of the need for Hamas to free the hostages. Nor did the ICJ seek to impose a ceasefire, of any length, on the Jewish state. For those decisions by the ICJ, just announced, as to what it condemns and what it condones, Israel should now breathe a sigh of great relief.