Why didn't the ICJ vote on South Africa's main request for a ceasefire? Because the ICJ ruling was political, not legal

There is a gaping hole in the ICJ provisional measures ruling issued on January 26.

The major provisional measure requested by South Africa - indeed, the first one listed in its application - was "(1) The State of Israel shall immediately suspend its military operations in and against Gaza." 

The ICJ provisional measures included six orders, that roughly correspond to most of the other measures requested by South Africa. And the orders that it did consider were overwhelmingly approved by the judges, either by votes of 15-2 or 16-1.

So why didn't the ICJ judges vote on the main request from South Africa?

The ruling itself barely addresses this issue. It says (76-77), "The Court recalls that it has the power, under its Statute, when a request for provisional measures has been made, to indicate measures that are, in whole or in part, other than those requested.... In the present case, having considered the terms of the provisional measures requested by South Africa and the circumstances of the case, the Court finds that the measures to be indicated need not be identical to those requested."

Reading between the lines, it seems that the ICJ considered South Africa's main request for Israel to immediately stop all military activities to be so absurd as to not even be worth consideration or discussion. 

In his separate declaration, Judge Dalveer Bhandari (India) wanted to add this order: "All participants in the conflict must ensure that all fighting and hostilities come to an immediate halt and that remaining hostages captured on 7 October 2023 are unconditionally released forthwith." Even he did not consider South Africa's demand for Israel - and only Israel - to stop fighting, without a similar demand of Hamas and a demand for Hamas to release the hostages, to be worth considering.

Now, imagine if the ICJ judges would have voted on the request by South Africa for Israel (and only Israel) to stop fighting. The vote would have been overwhelmingly if not unanimously against it. 

What would the world headlines have been? "The ICJ rules for Israel and dismisses South Africa's main demands."

The ICJ did not want to make it appear as if Israel won and South Africa lost on the main points. So it changed the provisional measures voted on to only the ones that could appear to be overwhelmingly against Israel. And it didn't even discuss why the main South African demand was not considered.

This indicated that the ICJ cared more about optics than law. It didn't want to make South Africa look bad, even as it dismissed its main legal argument for a unilateral Israeli ceasefire without discussion.

But it had no problem writing paragraph after paragraph that Israel might "plausibly" be committing genocide, using extraordinarily thin evidence compared to that used in similar cases brought before the court, as Judge Aharon Barak's separate opinion showed (paragraphs 34-36.)

Barak wrote plainly what the ICJ refused to say explicitly:

South Africa came to the Court seeking the immediate suspension of the military operations in the Gaza Strip. It has wrongly sought to impute the crime of Cain to Abel. The Court rejected South Africa’s main contention and, instead, adopted measures that recall Israel’s existing obligations under the Genocide Convention. The Court has reaffirmed Israel’s right to defend its citizens...

By burying its rejection of South Africa's attempt to hamstring Israel's ability to defend itself, and instead emphasizing the supposed "plausibility" of the genocide charge, the ICJ showed that the law is not its main consideration when it comes to Israel. It knows that any explicit ruling in Israel's favor on even one point would result in thousands of op-eds, articles and posts attacking the legitimacy of the Court from antisemites. 

It didn't want to be the object of protest. It didn't want the roads to the ICJ to be blocked by angry Jew-haters. 

Its ruling showed that it cares more about politics and optics than the law itself. 

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