Starting Monday, February 19, the International Court of Justice at The Hague will conduct six hearings to hear arguments from fifty-two countries and three international organizations that are participating in an advisory opinion procedure. The goal is to obtain a non-binding conclusion from what is commonly called the tribunal or the United Nations as a whole. The Spanish Ministry of Foreign Affairs indicated that the representative will present their opinion for thirty minutes on February 26, the final day of the hearings.
With this advisory opinion process, the broader conflict stemming from the events of October 7 and the ensuing Gaza-Israel violence is in focus. The joint request for an advisory opinion was brought before the ICJ by the United Nations General Assembly in December 2022 and formally opened on February 3, 2023, under the title Legal Consequences Arising from Policies and Practices in the Occupied Palestinian Territories, Including Jerusalem. The ICJ later scheduled six hearings for October 23, 2023, a date that fell sixteen days after the escalation known as the Al Aqsa Flood operation on October 7 and 8, 2023.
Casi 29.000 muertos
The deliberations began on Monday, February 19, following the court’s refusal to grant additional urgent measures requested by South Africa last week in its genocide case against Israel, which seeks protection for nearly 1.5 million Palestinians crowded into Rafah, a southern Gaza border city facing an imminent Israeli military operation. The court rejected the new application for provisional measures on the grounds that the January 26 order to refrain from killing civilians could be applied to the Rafah situation. Since January 26, when the court’s estimate stood at 25,000 Palestinian deaths—about half of whom were women and children—the concerned death toll has risen to nearly 28,895.
The risk of a qualitative rise in fatalities in Rafah, a city adjacent to Egypt, prompted South Africa to press again for urgent action.
This risk was openly acknowledged by Israel’s defense minister, retired general Benny Gantz, who spoke to American Jewish organizations on Sunday, February 18. He stated that Israel would broaden its operations to Rafah and added that those who argue the price is too high should understand this: Hamas has a choice to surrender and free the hostages toward Ramadan, and Gazans will be able to celebrate the holy month. This public remark underscores the high-stakes context surrounding the case (Source: public remarks reported by international media).
Rafah, a city of about 240,000 residents, has absorbed a large concentration of Palestinians displaced from northern Gaza since mid-October as Israeli forces directed them toward a zone that Israel had promised would be safe. Israel has since threatened to strike Hamas battalions in Rafah.
Against this backdrop, the advisory opinion procedure at The Hague concerns the situation in the occupied territories in Palestine and East Jerusalem. There is a precedent from twenty-two years ago. In 2004, The Hague examined a consultative opinion regarding the construction of a wall that Israel had erected to separate it from the occupied territories. The Court found that the wall violated international law and should be dismantled. The security implications and the border realities surrounding that decision were revisited in subsequent years, highlighting the ongoing complexities of the conflict.
The advisory process has prompted ongoing discussion about whether the court can influence the behaviors of states in conflict, particularly when political and military actions intersect with international legal obligations. The history of the 2004 decision remains relevant as a reference point for judgments about proportionality, civilian protection, and the obligations of occupying powers under international law.
Spain, February 26
Each of the fifty-two participating states, including Palestine as an observer status, has submitted written statements to the ICJ. The deadline to file these documents passed in late October 2023. Countries could, if they chose, add written responses contesting the arguments raised by others. The Palestinian representative will present the situation and the proposed measures during the opening session on Monday, February 19, with a three-hour presentation starting at 10:15 in the morning. On Tuesday, South Africa will advance its position, a highly anticipated intervention given its challenge to Israel on alleged genocide in Gaza under relevant treaty provisions.
On February 26, the representative of the Spanish government will present their view in a half-hour speaking slot.
This is a significant moment because it marks the expiration of a one-month period set by the ICJ on January 26 for Israel to submit a written report on compliance with the court’s directive, which called for an end to acts that could be classified as genocidal and for orders to the Israeli armed forces to avoid actions against civilians, including women and children in Gaza. By January 26, the court had recorded 25,000 deaths; recent updates place the total at around 28,895.
A legal expert noted in The Hague that South Africa plans to resume advocacy after Israel’s government briefing on how the January 26 order has been implemented. The outcome could be challenging for the court given the rising death toll and concerns about a potential new massacre in Rafah, which could test the court’s willingness to enforce a peaceable resolution.
It is also possible that Israel could resist compliance if The Hague eventually issues a binding order. Enforcing such an order would likely require action through the United Nations Security Council, where the veto power of the United States complicates decisive measures. This remains a delicate and highly politicized legal process.