ICJ ruling on Israel and Gaza - international law expert reacts

The measures stated that Israel must take all measures to prevent acts which could be considered genocidal, ensure its military does not commit genocidal acts, prevent and punish any public comments that could be considered enticement to commit genocide, take measures to ensure humanitarian access, prevent any destruction of evidence that could be used in a genocide case and submit a report to the court within a month.

The Herald spoke to Dr Henry Lovat, Senior Lecturer in International Law and Politics at the University of Glasgow for his reaction to the verdict.

What is your immediate reaction?

"On the one hand you’ve got a lot of folk saying ‘this is dreadful’ – and what is happening in Gaza is truly awful – and on the other you’ve got an Israeli paper saying ‘ICJ badmouths Israel for 35 minutes then Israel wins'.

“My sense is that the court has probably done a pretty good job of annoying everybody slightly – which suggests it’s just about doing its job correctly.”

Who will be most pleased with the verdict?

"It’s not like a win for one is a loss for the other in this conflict, or even necessarily in court.

"South Africa got much of what they sought. They haven’t got a ceasefire but they’ve had their standing confirmed, the court has judged there is a dispute, it recited the horrific humanitarian situation and confirmed that South Africa has a role to play.

“Israel has to report back in a month and then South Africa has the opportunity to comment on Israel’s report. That then has the potential to allow South Africa to really position itself as a formal advocate for the Palestinians in Gaza.

“So that’s a win, in a sense, for them to have that voice and it’s a win for the Palestinian community to have somebody advocating for them.

“There are also voices saying ‘well, there’s no ceasefire, that’s not very helpful’. From an Israeli perspective they’ve dodged that bullet, but I think that was probably a pretty remote possibility anyway.

“It’s only previously been ordered in the Ukraine-Russia case and the facts there were very different, Ukraine was saying ‘Russia has claimed genocide in order to invade us’.

“I don’t think, given that, it’s surprising that a ceasefire wasn’t ordered.

“On balance I think what was ordered was probably in the range of Israel’s non-worst-case expected outcomes.

“What’s recited sounds horrific, and is horrific, but the in terms of the orders it’s essentially a restatement of the standard legal position.

“Israel would say that doesn’t require them to do anything they aren’t already doing."

One of the measures said: 'Israel must prevent and punish any public comments that could be considered incitement to commit genocide in Gaza' - was that a surprise?

"To my mind that’s arguably the most significant and far-reaching element of the order. It probably is a recognition, it talks about punishing which you could read as implicit recognition of there having been some incitement to commit genocide.

“I suspect Israel absolutely expected this to happen.

“We’ve already seen that statement by the Israeli attorney general saying they recognise this is a problem and want to combat it.

“It’ll be interesting to see how it plays out domestically in Israel in a political sense. Will Netanyahu say ‘we have to stop this, this is not on’? Will there actually be measures taken? Or will it be a bit of a paper tiger?

"Judge Sebutinde the Ugandan judge, dissented on almost all the measures and one of the things she notes in her dissent is that there are no indicators of a genocidal intent on the part of Israel, she quotes all the horrible things that have been said but says 'a careful examination of those statements, read in their proper and full context, shows that South Africa has either placed the quotations out of context or simply misunderstood the statements of those officials. The vast majority of the statements referred to the destruction of Hamas and not the Palestinian people as such'.

“That’s one dissenting opinion, you can’t read too much into it, but it’s interesting. It says ‘yes we’ve got all these statements, the incitement to commit is a real issue and, Israel, you’re on notice, but in terms of the prima facie case that doesn’t stretch to genocidal intent is actually present'. Which is a key distinction.”

Read More: International Court of Justice issues measures on Israel in Gaza genocide case

What is the distinction?

"I think the Israeli government would be very hard-pressed to say there hasn’t been any incitement present.

“That’s a tough claim to make given the statements that are out there.

"That’s not to be condoned or minimised, it’s pretty bloody awful, but the question is whether that translates into genocidal intent - i.e for the purposes of committing genocide.

“The Genocide Convention, under article III, requires that special intent to "destroy in whole or part" a national, ethnic, racial or religious group.

“There's no question these statements are horrific but Israel would say, if you look at the war and the government’s stated policy, that (sentiment) is entirely absent and in fact the opposite is present.

“So you’ve got a gap and the question is: ‘do these horrific statements, even made by prominent figures including the Prime Minister, translate into genocidal intent within the terms of the Convention?’.

“I’m not sure that’s an easy case to make.”

Do you think this judgement will have make a material difference?

"In the immediate conduct of Israeli operations I think it’s difficult to envisage a significant direct impact.

“There might be indirect impacts, stamping down that incitement, taking greater care in terms of humanitarian access to aid and that kind of thing.

“In terms of tending toward a ceasefire I really don’t know. There are so many different factors in play, including Israeli domestic politics: relations with Qatar, Egypt, whoever else.

"Is that good for the Palestinians? Will the decision itself achieve very much? It’s perhaps unlikely but in the broader scheme, my sense is that I struggle to see it as unhelpful.

“This case was never seen as helpful to Israel, it may of course be seen as helpful by South Africa, the Palestinians and others in the global community.

“But just because it’s not seen as helpful by Israel, that doesn’t mean it won’t be helpful in adding to that international pressure for a ceasefire in the immediate short-term, and in the longer-term perhaps contribute to pushing forward a sustainable solution."

Read More: 'Ten thousand children have died, it's time to end the killing in Gaza'

How has the court come out of this?

"My sense is that the court has played a difficult hand really well.

“If the court had delivered a really split decision, or if it had called for more far-reaching measures like a ceasefire the odds of compliance would have been much lower.

“You’d also have made it much more easy for the Israeli government and others to say, ‘this is a politically biased court’.

“It’s early days but my sense is that even if that's what the Israeli authorities may state publicly, substantively the careful approach the court has taken makes it more difficult for the Israeli government to simply dismiss the court and case out of hand

“I think this probably makes the court look that bit more legitimate, credible and authoritative in the eyes of Israeli decision makers and that’s no bad thing.

"In terms of positioning the institutions as potentially constructive actors in this conflict, I think this doesn’t hurt.”