2-Feb-24 Israel-Gaza, the ICJ and the Equilibristic Use of Words

This guest blog is written by Dr Salomėja Zaksaitė, Senior Research Fellow at the Centre for Social Sciences, Institute of Law, in Lithuania. The views expressed are the author’s own. You can contact Salomėja at: salomeja.zaksaite@teise.org

On 26 January 2024, the International Court of Justice (ICJ) ordered the State of Israel to take all measures to prevent genocidal acts in Gaza (para 86), but the court stopped short of ordering an immediate halt to operations. Clearly, the tragedy in question is so deep, and the suffering so inexhaustible, that this blog post cannot make much difference. Nevertheless, words sometimes have weight and power. If not to do something directly, then at least to interpret what has been said, written, or will be written.

I want to consider the meaning of the International Court of Justice’s (ICJ) order for Israel to take all measures to prevent acts of genocide. There are not only legal terms here that are being juggled, but also criminological terms, which are in themselves open to interpretation. For example, there is more than one understanding of the word “prevention”, which in turn depends on the criminological paradigm. On the one hand, it is a Solomonic formulation chosen by the ICJ, which puts the discretion to end the war in Israel’s hands. Israel is not being scolded like a child and is not being imperatively requested simply to end military operations. On the other hand, if Israel were to do nothing (for example, responding simply that everything is already being done to avoid civilian casualties, and that Israel is fighting Hamas, and not civilians), then within one month from the date of the Order, the ICJ might already be asking how exactly Israel prevented genocide (para 86).

Such a sophisticated strategy by the International Court of Justice is subtle, but it is not swift. People are dying every minute. Unfortunately, this is not new in international criminal law or in law in general: legal measures alone are insufficient to quell a volcano that has been active for decades and which keeps erupting – recently in a very serious way.

From a criminological point of view, both sides of the conflict seem to have their own truth and are overwhelmed by a state of “angry aggression”. This concept explains how the military begins to operate in an automatic fight-or-flight mode. It means that they do not ask questions; they lack empathy; they tend to perceive themselves as (bigger) victims and that their actions are always in self-defence. This can leave soldiers essentially as order-executors, but less often as critical thinkers. With indoctrination on both the Israeli and Palestinian sides, it can be hard to distinguish truth from falsehood. Information has a Rashomon-like character – where the warring sides interpret events in radically opposite ways. This theoretical framework is typical of many military conflicts and foregrounds the power of narrative.

Returning to the words used by the ICJ, and bearing in mind the situation of Hamas fighters possibly hiding among civilians: what could be meant by “take all measures to prevent genocidal acts in Gaza”? Stop bombing civilian buildings in general? Probably not quite that. Or perhaps it means “stop disproportionate bombing”: for example, shooting down one Hamas soldier at the expense of many civilians (see journalist Gideon Levy’ s commentary on the boundaries and aims of the Israeli campaign). Yet just as Israel acts disproportionately, so too does Hamas, by not releasing hostages (para 85) and thus risking tens of thousands of its own people. But if both warring parties already fail the tests of proportionality, might it be time for the international community to take more effective measures than this Solomonic-sounding game of words?

I would like to bring to mind a parallel from the jurisprudence of the European Court of Human Rights. In assessing the threat to life and therefore the State’s positive obligations to protect the right to life, the criterion of a real and imminent risk (or real and immediate risk) was coined. Notably, in the Israeli-Palestinian dispute, the ICJ employed the same criterion (para 74). Accordingly, if there is a real and immediate risk, the State must prevent it – because failure to prevent it leads inter alia to a breach of Article 2 of the European Convention of the Protection of Human Rights and Fundamental Freedoms (i.e. the right to life). But what is meant by “real and imminent risk”? This appears to include both real and putative risk. This lack of clarity has been noted by Judge Egidijus Kūris in his dissenting opinion in the case of Selahattin Demirtaş v. Turkey (No 15028/09). According to E. Kūris, “risk” cannot be “real”, it can be only “realistic” (para 6). In other words, risks are probabilistic; only facts can be real. The linguistic parallel with the Israeli-Palestinian conflict could be that the “prevention of genocide” (if this notion is dogmatically taken word for word) may sound as oxymoronic as the formulation of “real risk”. Especially given that common sense tells us the only way to prevent genocide is simply not to kill. But such a straightforward wording was not chosen by the ICJ.

This is nothing new. Legal mechanisms are inevitably limited and can sound artificial. They also appear frustratingly slow to address the violence right now, today. But it would probably be even worse if they did not exist. In this case, not so little has been done: a sophisticated equilibristic use of words has allowed the warring parties themselves to realise that something must be changed. We await their response.

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