International Law in Gaza: Belligerent Intent and Provisional Measures

Abstract

What are key implications of the current war in Gaza for international law? The coincidence of Israel’s compliance claim with catastrophic civilian suffering highlights the need for international law to discharge its functions in real time, distinguishing ex ante action-guidance and concurrent third-party evaluation while hostilities are ongoing from longer-term ex post accountability. We identify two doctrinal questions that underpin polarized evaluation of Israel’s conduct and that are critical for law’s functionality: first, how to conceptualize belligerent intent, and second, how to evaluate international courts’ early-stage engagement with ongoing conflict. Arguing that attention to the functional differentiation of law’s tasks helps to answer these questions, we (i) clarify the meaning of intent vis-à-vis the conduct of hostilities, starvation, and the genocide allegation and (ii) explore the significance of the ICJ’s indication of provisional measures in South Africa v. Israel for guiding third states’ evaluations of the conflict in real time.

Keywords: International Humanitarian Law, International Court of Justice, Conduct of Hostilities, Intent, Genocide, Starvation, Complicity, Provisional Measures, Duty to Prevent Genocide, Duty to Ensure Respect for International Humanitarian Law