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26 January 2024

There are no winners in the ICJ’s ruling

The court’s ruling hasn’t ended the fighting in Gaza, nor has it absolved Israel.

By Alona Ferber

On Friday (26 January), the International Court of Justice delivered its first ruling in South Africa’s case accusing Israel of committing genocide against the Palestinians in Gaza.  

While a final verdict on whether Israel is guilty of genocide in its war against Hamas could take years, the 17 judges adjudicating in The Hague decided that the risk to Palestinian rights under the Genocide Convention was plausible and urgent enough to order provisional measures. Stopping short of ordering an end to the war or a ceasefire, the American judge Joan Donogue, who is president of the court, said Israel must “take all measures within its power to prevent” acts of genocide against the Palestinians in Gaza under article 2 of the convention. Between numerous sips of water, Donoghue said Israel needs to prevent and punish any “direct and public incitement” to commit genocide of Palestinians, and to take “immediate and effective measures” to ensure adequate humanitarian assistance inside Gaza. Israel has to report to the court within a month on steps it has taken to uphold the ruling. The judge also expressed the court’s concern over the status of the remaining hostages taken in Hamas’s 7 October massacre in southern Israel. She called for their immediate and unconditional release.  

There are two necessary conditions for genocide, under the Convention. The first is “intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. The second is the commissioning of a series of acts towards that goal, including “killing members of the group”, “deliberately inflicting” conditions to cause “physical destruction”, and preventing births.  

South Africa, which filed its petition to the court in December, argued that Israel’s actions and the rhetoric of numerous government officials, including President Isaac Herzog, Defence Minister Yoav Gallant, and Prime Minister Benjamin Netanyahu were evidence of intent, while the scale of death and damage in Gaza, and the humanitarian catastrophe – alongside cases where South Africa claims Israel didn’t do its utmost to protect civilians – was proof of genocide under the convention, which both countries are a party to. In its defence, Israel said South Africa ignored 7 October as a cause of the war in Gaza and the genocidal nature of Hamas itself. Israel also argued that the case ignored the Jewish history of being a victim of genocide. 

Given that the judges did not order a ceasefire, the fighting, now well past its 100th day, will continue. Throughout the war, despite the spiralling death toll in Gaza – now past 25,000 according to figures from Hamas, which are not independently verifiable – Israel has maintained that it is doing everything in its power to prevent civilian casualties and ensure the passage of humanitarian aid, arguments it repeated in its defence at the court. Despite the ruling, it is unlikely that Israel’s line on this will change. Israel’s far-right national security minister, Itamar Ben-Gvir, for instance, responded to the ruling on Friday by branding the court “anti-Semitic” and saying that “decisions that endanger the continued existence of the State of Israel must not be listened to”. Predictably, Netanyahu responded that “Israel’s commitment to international law is unwavering” and described the case as a “vile attempt to deny Israel” the right to defend itself. Hamas, meanwhile, unsurprisingly lauded the court’s decision as isolating Israel, Reuters cited senior Hamas official Sami Abu Zuhri, as saying.

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While some may see this as a triumph for international human rights law, the ICJ case exposes the tribal nature of the Israeli-Palestinian conflict. It is a Rorschach test for where a person’s sympathies lie, and what their reading of the conflict’s history is. Diplomatically, the ICJ case split the world in two, with the Arab and Muslim world, and the Global South, led by South Africa, on the side of the Palestinians, and the West, including the US, the UK, Germany, and France, siding with Israel. While South Africa may have built a detailed case, some who agree with Israel that their argument is unmerited have accused South Africa of having ulterior motives, such as distracting from political headaches at home. Others have highlighted South Africa’s diplomatic ties with Hamas, which is proscribed as a terror group in the US and the UK. For Palestinians in Gaza and for the hostages in Hamas’ hands, Friday’s decision does not bring immediate change, though with the world scrutinising Israel closely, the message to Netanyahu’s government is that it can’t necessarily get away with fighting this war as it has done since October. 

The extensive cataloguing of Israeli atrocities in a courtroom was a chilling moment, too, for either side. That the court didn’t call for an immediate stop to the fighting implies that the ICJ does not think genocide is being currently being waged by Israel, even though it has not made a final decision on the case. What is clear, however, from its order for Israel to prevent and punish genocidal rhetoric, is that the judges recognise the danger of Israeli public discourse, and the real risk of violence it carries. 

[See also: Former Israeli Prime Minister “Time to stop the war”]

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