“Not All Scripts Come with One Voice”: Variations in State Responses to South Africa v Israel

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This post examines responses to the ICJ 26 January Order on provisional measures (‘Order’) in South Africa v Israel by States in the West that regularly claim to subscribe to a so-called “rules-based international order”, a concept coined to replace the much more precise concept of international law, explained to the point by John Dugard here.

Even within this group of States, however, there are significant variations in how the relevant States have approached the proceedings instituted by South Africa concerning Israel’s alleged violation of the Genocide Convention.

State responses to the ICJ process have already received a good amount of coverage in the media and blogosphere (see e.g. here for a detailed account of Germany’s position; here for the position of some European States in the run-up to the ICJ 26 January Order; here for immediate reactions by a broad range of States to the ICJ Order; and here for an example of Alonso Gurmendi’s excellent graphics categorizing State positions on the case).

Drawing on these and other sources, this post seeks to set out and contrast the main types of responses by a particular group of States and offer some reflections as to what this may say about the idea of a “rules-based international order”. As an initial disclaimer, it needs emphasis that it will be for another article to take a closer look at the equally interesting topic concerning reactions by States outside the West.

The U.S. response: reject the case on its merits; accommodate the Order   

Besides Israel itself, the perhaps starkest distancing from the case brought by South Africa in the run-up to the ICJ’s 26 January Order came from the U.S., with a response that in some ways appears to have created a ‘script’ drawn upon, to varying degrees, by several other countries in the West.

One of the earliest indications of the U.S. position occurred when, in early January, White House National Security Council spokesman John Kirby stated the Biden administration’s view that the case is “meritless” and “completely without any basis in fact whatsoever”. In a press statement released the day before the ICJ oral hearings commenced in January 2024, the State Department further clarified the U.S. position as follows:

Allegations that Israel is committing genocide are unfounded. In fact, it is those who are violently attacking Israel who continue to openly call for the annihilation of Israel and the mass murder of Jews. Genocide is one of the most heinous acts any entity or individual can commit, and such allegations should only be made with the greatest of care. Israel has the right to defend itself against Hamas’ terrorist acts — acts that Hamas has vowed to repeat again and again until Israel is completely destroyed. Israel is operating in an exceptionally challenging environment in Gaza, an urban battlespace where Hamas intentionally embeds itself with and hides behind civilians.

Though obviously not an expression of the official position of the U.S., it is worth noting that a large number of members of Congress stated support for the Biden administration’s approach to the ICJ case, noting in a letter dated 24 January 2024 that in their view the case brought by South Africa is “grossly unfounded”. The Congress members “vigorously denounce[d] South Africa’s deeply hostile stance towards Israel” and urged the Biden administration “to offer Israel all appropriate support in opposing the South African application to the ICJ” and to encourage U.S. allies to join the U.S. in “speaking out against this unfounded attack on Israel”.

In the wake of the ICJ delivering its Order, a State Department spokesperson briefly stated:

We continue to believe that allegations of genocide are unfounded and note the court did not make a finding about genocide or call for a ceasefire in its ruling and that it called for the unconditional, immediate release of all hostages being held by Hamas.

Secretary of State Antony Blinken elaborated in a press conference on 29 January:

We continue to believe clearly that the allegations of genocide are without merit. We have consistently made clear to Israel going back to the early days the imperative of taking every possible step to protect civilian life, to get humanitarian assistance to those who need it, and also to address dehumanizing rhetoric that we’ve heard from some individuals. The court in this decision agreed with that, and the court’s ruling is also very consistent with our view that Israel has the right to take action to ensure that the terrorist attacks of October 7th never happen again, in accordance with international law. So I can just say we took note of the opinion. We will continue to monitor the proceeding as it moves forward.

Perhaps the most accurate reading of the U.S. response to the process surrounding the case brought by South Africa is, therefore, to say: 1) The U.S. has opted not to seek to de-legitimize the Order (or the ICJ more generally), instead seeking to portray the Order as being in line with the U.S. position, ignoring the parts of the decision that it doesn’t agree with while emphasizing the parts that it condones, especially that the Court refrained from ordering a suspension of Israel’s military operations, as requested by South Africa, and the Court’s calling for the release of hostages held by Hamas (ICJ Order, para 85). 2) The U.S. maintains its position that the case is meritless, notwithstanding that this would appear to run counter to the ICJ finding that allegations of crimes under the Genocide Convention being committed by Israel in Gaza are “plausible” (ICJ Order, para 54). 3) More broadly, the U.S. could, therefore, be said to pursue a level of ‘accommodation’ and a level of ‘spinning’ of the ICJ Order, possibly combined with a level of distraction (but that’s beyond the scope of this piece to comment on).

Taken together with the absence of comments about the binding nature of ICJ decisions, this could possibly imply that the U.S. wishes to leave the door open for potentially changing its position later depending on how the process unfolds.    

The UK variant: reject the case on its merits; disown the Order

Several of the closest allies of the U.S. echoed the sentiments expressed by the U.S. in the run-up to the 26 January ICJ Order, most clearly perhaps the UK. A spokesperson for UK Prime Minister Rishi Sunak said the Prime Minister believed South Africa’s case was “completely unjustified and wrong”, further noting:

This legal action does not serve the court of peace. The UK government stands by Israel’s clear right to defend itself within the framework of international law.

Following the 26 January ICJ Order, the UK essentially maintained that position. While noting that the UK respects “the role and independence of the ICJ”, a spokesperson for the Foreign and Commonwealth Office made it clear that the UK Government continues to have:

considerable concerns about this case, which is not helpful in the goal of achieving a sustainable ceasefire […] Israel has the right to defend itself against Hamas […] our view is that Israel’s actions in Gaza cannot be described as a genocide, which is why we thought South Africa’s decision to bring the case was wrong and provocative”.

Compared with the U.S. response, the UK thus appears less focused on seeking to portray the ICJ Order as reflecting its own position, but more focused on emphasizing that the legal process is uncalled for and is perceived to run counter to UK policy objectives.

That being said, in a response to parliamentary questions on 2 February 2024, Leo Docherty, the Under-Secretary in the Foreign, Commonwealth and Development Office echoed the U.S.’ emphasis on the ICJ’s remarks about releasing the hostages held by Hamas and also welcomed the Court’s call for “the need to get more aid into Gaza”.

The German and French variant: reject the case on its merits; engage the process

As for Germany, it is useful to refer to Stefan Talmon’s detailed account of the initial government responses (from which the following borrows). The first official reaction to the ICJ case from the Foreign Office came on 5 January 2024, with a spokesperson saying that Germany has “taken note” of South Africa’s application and clarifying Germany’s view that:

targeted action against armed attackers; that is, fighters in an armed conflict, is not action with the intention of destroying an ethnic group […] in our opinion, the claim that Israel is committing genocide in the Gaza Strip is false and not covered by the Convention.

A similar position was repeated several times in the time leading up to the ICJ Order, including by Vice-Chancellor and Minister for Economic Affairs and Climate Action Robert Habeck (stating that “accusing Israel of genocide […] is a complete reversal of victims and perpetrators, and is just wrong”).

Next, shortly after Israel had finished its pleadings on provisional measures at the ICJ, the German Government issued a statement declaring its intention to intervene as a third party under Article 63 of the ICJ Statute, in that regard emphasizing that the German Government “sees itself as particularly committed to the Convention against Genocide” in light of Germany’s history, and “firmly oppose a political instrumentalization [of the Convention].” Austria and the Czech Republic have made similar comments on that later note about opposing what they see as “attempts to politicize the ICJ”.

In the wake of the 26 January Order, Germany’s Foreign Minister Annalena Baerbock not only reaffirmed the country’s general support for the ICJ but also – in contrast to the U.S. and the UK – stressed the binding nature of the provisional measures ordered, emphasizing that these are measures Israel must “comply with”.

Like the U.S. and the UK, Foreign Minister Annalena Baerbock underscored a particular aspect of the Order, namely that the ICJ “reminded us that Hamas is also bound by international humanitarian law and must finally release all hostages”.

France, too, initially approached the case brought by South Africa with a significant amount of scepticism. In the run-up to the 26 January Order, Foreign Minister Stéphane Séjourné – while confirming France’s support for the rule of law – explained:

To accuse the Jewish state of genocide is to cross a moral threshold […] The notion of genocide cannot be exploited for political ends. This has always been our position.

Following the ICJ’s Order, the Ministry for Europe and Foreign Affairs made a detailed statement, in which it pointed out that “France is deeply committed to respect for international law and reaffirms its confidence in and support for the International Court of Justice”. The statement – which did not welcome the Order or mention its binding nature – clarified that “France intends to avail itself of this possibility and submit observations about its interpretation of the Convention”, indicating that in doing so it will propose a narrow definition of genocide focusing specifically on the intent requirement.

Similar to the other States mentioned above, France’s statement also emphasized that the ICJ “is calling for the immediate, unconditional release of the hostages being held in Gaza”.

The Australian and Canadian variant: reject the case on its merits; continuously change position

The Australian government has changed its position several times. It initially refused to take a stand on the ICJ case. It later did, but continued with a rather ambiguous approach, as Prime Minister Anthony Albanese stated that “we obviously are not a participant in the process [and] don’t intend to be a participant in the process”; rather Australia’s focus is on a “political solution [which is] the main game – not any court case” Next, Foreign Minister Penny Wong expressed a position that “our support for the ICJ and respect for its independence does not mean we accept the premise of South Africa’s case”, seemingly aligning Australia’s position with Canada’s, explained below.

Australian officials appear to have made only brief and broad comments in the immediate wake of the 26 January Order, with Prime Minister Anthony Albanese noting “We’ve made very clear our position, which is that every human life matters, whether it be Israeli or Palestinian”, and a spokesperson for Foreign Minister Penny Wong clarifying that Australia respects the independence of the ICJ and “the critical role it plays in upholding international law”, which “are binding on the parties to a case”.

However, on 15 February 2024, a joint statement by Australia, Canada and New Zealand concerning Israel’s planned military operation in Rafah emphasized:

The International Court of Justice has been clear: Israel must ensure the delivery of basic services and essential humanitarian assistance and must protect civilians.  The Court’s decisions on provisional measures are binding.  

Concerning Canada, following a period of silence from Ottawa, on 12 January 2024, Canadian Minister of Foreign Affairs, Mélanie Joly, clarified that “Canada’s unwavering support for international law and the ICJ does not mean we accept the premise of the case brought by South Africa”. Prime Minister Justin Trudeau used similar terms, while specifically linking the ICJ to the idea of a “rules-based international order”.

Initially, Canada maintained its position after the ICJ’s Order was delivered, using similar ambiguous language as it had in the run-up to the Order, as Foreign Minister Melanie Joly reiterated that Canada’s “support for the ICJ does not mean that we accept the premise of the case brought by South Africa”, while linking the ICJ to the “rules-based international order”. As noted just above, Canada has since taken a firmer stance regarding the need for Israel to implement the provisional measures ordered.

An alternative vision?

Some European countries – notably Ireland, Spain, Norway and Belgium – are taking positions that, in important ways, depart from the script (and its variants) outlined above, though in some cases, positions have not been particularly consistent.

Ireland, for one, initially indicated a reluctant position towards South Africa bringing the case, with Taoiseach Leo Varadkar stating in early January that Ireland should not engage the case because this is:

an area where we need to be very careful […] Hamas went into Israel, killed 1,400 people […] essentially because they were Israelis, because they were Jews, because they lived in Israel. Was that not also genocide?

However, there appears to have been a rift between Irish decision-makers and/ or change of position has occurred over a short time. In the wake of the ICJ’s Order, Tánaiste Micheál Martin came out strongly in favour of the Court’s ruling with a statement that welcomed the Order – observed to reflect Ireland’s own position – emphasizing its “final and binding” nature. Stressing that Ireland “is a strong defender of the international rules-based system” and that the ICJ “is one of the cornerstones or this system”, he added that Ireland expects “Israel to implement all provisional measures that have been ordered by the Court, in good faith and as a matter of urgency”.

Soon after, Tánaiste Micheál Martin stated that Ireland would “strongly consider” supporting South Africa, explaining that he had requested urgent legal advice on the matter of possible third party intervention from his officials – thus contradicting Taoiseach Leo Varadkar’s previous statement. At the time of writing this post it remains to be seen if Ireland will engage the legal process as a third party.

As for Spain, the government did not announce an official position on the ICJ case in the run-up to the 26 January Order (though government coalition partners urged the ICJ to order provisional measures “to achieve a permanent ceasefire”). Following the ICJ Order, the Spanish Foreign Ministry issued a statement that “welcome[d] the decision” and called “on all parties to respect and comply with these measures in their entirety”.

Similar to Spain, Norway also did not take an official position prior to the ICJ announcing its Order, but in a statement issued on the day of the Order’s release, Minister of Foreign Affairs Espen Barth Eide indicated strong support for the ICJ and the measures ordered:

It is positive that the Court’s order on provisional measures was made so quickly and appears thorough. Israel must report to the Court on all measures implemented within one month […] Respect for the Court is essential to strengthen the adherence to international law, and we expect Israel to fully respect the Court’s order […]

Belgium has perhaps been the most consistent and vocal voice in the West expressing support for the ICJ in the context of this case. By way of example, Minister of Development, Cooperation and Urban Policy Caroline Gennez stated on 19 January that:

Belgium reaffirms full support for [the ICJ] in this case. If the [ICJ] calls on Israel to cease its military campaign in Gaza, our country will fully support it.

Belgian defence minister Ludivine Dedonder added that “the Belgian government is speaking out in favour of an immediate ceasefire in Gaza, the unimpeded delivery of humanitarian aid, and support for the ICJ.”

Following the ICJ’s Order on provisional measures, Belgian Prime Minister Alexander De Croo wrote on X:

Belgium takes note of the order of the International Court of Justice on the request for the indication of provisional measures. We call upon Israel to fully implement the provisional measures of the Court’s order.

Several other responses by States sometimes seen to form part of ‘the West’ – for example Japan – have similarly stressed the legally binding nature of the ICJ’s Order and the need for its implementation. 

Conclusion

It follows from the analysis here that there are substantial differences as to how States in the West claiming to subscribe to a “rules-based international order” have responded to the case before the ICJ, most notably in terms of 1) how they relate to the merits of the case; 2) whether they welcome the ICJ’s Order; 3) whether they express general support for the ICJ; 4) whether they point to the Order’s binding nature; and 5) whether they will engage the legal process as a third party. 

At one level, these variations in State responses could be said to be implicit or inherent to the idea of a “rules-based international order”, in the sense that this order is seen to facilitate a highly flexible, policy-based approach to international law. This opens the door for adopting rather diverse responses to the same legal process, while citing an identical commitment. That is a point reinforced by the fact that both Israel and Palestine refer to the need to uphold a “rules-based international order” in the context of the ICJ case, though they obviously come with opposed understandings of what that requires. 

At another level, the ICJ’s Order confronts the idea of a “rules-based international order” because Israel is not treated as being exempt from accountability norms enshrined in international law, as a sui generis case. In that regard, it is notable that even Israel’s strongest allies have, at this point, not sought to de-legitimize the ICJ, even if many of them strongly object to the case brought and the Court’s findings could be read to counter their narrative. The absence of spoken hostility towards the ICJ may in part be because these States tend to view the ICJ as forming a “key part” of the “rules-based international order”; and in part because the ICJ’s Order took a form that has seemingly permitted many of these States to seek to align aspects of it with their own policy preferences.   

Going forward, actors who seek a global order defined by international law would benefit from clearly saying that – and act accordingly – rather than seeking to bolster their position by placing it within the vague and politically loaded notion of a “rules-based international order”.

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Nicolas Boeglin says

February 19, 2024

Dear Professor Hansen

Many thanks for tis extremeley usefull post. May I just refer you and our dear colleagues of EJIL Talk to the Luxembourg position heard following ICJ decision of January 26 in which we read that:

"Je prends note des mesures conservatoires ordonnées par la Cour internationale de Justice ce 26 janvier.

En particulier il y a lieu de relever les mesures conservatoires ordonnées par la Cour sur la nécessité d'éviter toute victime civile, sur la nécessité d'améliorer substantiellement et de manière urgente l'accès de la population civile de Gaza aux services de base et à l'aide humanitaire, et enfin sur la condamnation des auteurs de propos considérés comme incitant au génocide.

J'appelle à la mise en oeuvre complète des mesures conservatoires prononcées par la Cour. Leur mise en oeuvre est obligatoire d'un point de vue du droit international".

Source: https://mae.gouvernement.lu/fr/actualites.gouvernement%2Bfr%2Bactualites%2Btoutes_actualites%2Bcommuniques%2B2024%2B01-janvier%2B27-bettel-cour-justice.html

Yours sincerely

Nicolas Boeglin

Abdulkadir Gadzhiemenov says

February 20, 2024

What is happening before our eyes clearly indicates a systemic crisis in modern international law. Its fundamentals must be reconsidered and reassessed. History shows us that a change in law is often preceded by a change in the System. The concept behind the idea of western hegemony, whether it's a rules-based international order or a democracy, is now showing its destructive nature.

Thanks for the thorough analysis.

A.G.