Thread by @NimerSultany

The ICJ is failing Palestine like it failed Bosnia.

1. What is the point of the @CIJ_ICJ? Despite the urgency, they are yet to issue their opinion on Israel's obligations towards the UN, including its humanitarian organisations, in Palestine.

https://twitter.com/AdHaque110/status/1948010262029647967

2. The timid states did not want to do anything concrete to pressure Israel so they went to the UNGA to refer Israel to the @CIJ_ICJ and then their lawyers made forceful speeches. They passed the ball to the court and the court is dragging its feet.

3. The @CIJ_ICJ can also act on its own initiative ("in propio motu") in the genocide case, South Africa v. Israel, and yet declines to do so, despite the extreme urgency that is clear to anyone with a phone and a conscience.

4. One would have thought that the judges of the @CIJ_ICJ would have by now realised their utter failure to be clear in May 2024 to order Israel not to destroy Rafah. They shamefully resorted to a convoluted formulation, surely knowing that it left room for manipulation.

5. Earlier, in March 2024, the @CIJ_ICJ shamefully declined to issue an explicit order regarding ceasefire, pointing to Article 59 of the ICJ Statute and the fact that the court's judgments are binding on the parties before it, and not on third parties.

6. The @CIJ_ICJ, thus ignored, in March 2024, the question of third state obligations to prevent genocide. It thus failed to adequately reinforce and elucidate the obligation to prevent genocide.

7. Earlier, in Feb 2024, the @CIJ_ICJ refused to issue specific measures with respect to Rafah.

8. This failure is a failure that the court was warned about by South Africa already in March 2024, that the court may repeat the same failure it committed in the case of the Bosnian genocide.

9. The case in Bosnia was initiated in 1993, the court ruled in 2007: 14 years later. Meanwhile the genocide occurred. Too late for prevention. Too late for the victims. And the recognition was scandalously deficient (singling out Srebrenica from the wider genocide)

10. In Gaza, the @CIJ_ICJ issued 3 important sets of provisional measures, in January, March and May. The violation of these measures is clear to all, and further establishes Israel's guilt: It was told not to do x because doing x means genocide, and it did it anyway.

11. Yet, it has been 13 months since the last provisional measures. While South Africa is clearly unwilling to go back to the court to ask for more, the court is unwilling to do anything either. All the parties are dragging their feet, leaving Gaza forsaken.

12. Judges usually respond to this by citing their institutional weakness and that enforcement is not their job. But in addition to the failures identified above, saying "I cannot" means in many cases "I won't" (see Robert Cover on Judges and slavery in the US).

13. This is a matter of judicial politics, choice, agency. e.g. The @CIJ_ICJ showed ambition & unanimity in the climate change case, some would even say that it is imposing impractical obligations on states. The judges chose a less ambitious approach regarding Gaza.

14. Saying "it's not our job to enforce our own orders" ignores the "preventive" function of the Genocide Convention, as I indicated earlier, and the role of the Court in this prevention in light of the 650+ days of the UN Security Council failing to end the genocide.

15. Moreover, since May 2024, there is an increasing consensus amongst informed observes and experts who are naming the genocide, as well as increasing documentation. This is important because -->

16. In Jan. 2024, Judge Nolte pointed out that, unlike Myanmar, there is no finding from a fact-finding mission that it is a genocide.

17. But now we have a report by the UN Commission of Inquiry (March 2025) that says genocide. And other detailed reports by the Commission and the @UNHumanRights office on war crimes and crimes against humanity + ICC arrest warrants.

What is these judges' excuse now?

18. When we say the 'failure of the international community', this includes judicial failure. Judges have agency; we can judge the judges for not doing better.

We knew that courts are limited, but it can't be said that the @CIJ_ICJ rose to the challenge in these desperate times