ICJ RULING ON GAZA GENOCIDE

AN HISTORIC VICTORY FOR THE PALESTINIANS THAT ISRAEL VOWS TO DEFY

Pro-Palestine activists wave flags during session of the International Court of Justice, in The Hague, Netherlands, on Jan. 26, 2024. Photo: Patrick Post/AP

While the 17-judge panel ordered Israel to halt any genocidal acts in Gaza, it stopped short of ordering immediate ceasefire.

THE 17-JUDGE PANEL at the International Court of Justice in The Hague issued a series of rulings on Friday about Israel’s conduct during its war against Gaza that constitute a significant legal defeat for Israel and its chief defenders, the United States and Germany.

It found that there is a basis to proceed with the case against Israel for genocide and that South Africa had solid foundation to bring its case before the world’s highest court. The ICJ’s chief judge, Joan Donoghue, said provisional measures against Israel were necessary because “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the court renders its final judgement.” The full proceedings against Israel will take many years to complete.

At the same time, the court did not go as far in its rulings as South Africa wished and did not explicitly order Israel to immediately halt its military attacks against Gaza or to lift its state of siege. Instead, it ordered Israel to “take all measures within its power to prevent the commission of all acts within the scope of Article II of the Genocide convention.”

Both the Biden administration and the Israeli government seized on this aspect of the court’s ruling to argue that this amounted to a green light for Israel to continue its military assault on Gaza. “The court’s ruling is consistent with our view that Israel has the right to take action to ensure the terrorist attacks of October 7 cannot be repeated, in accordance with international law,” a State Department spokesperson said. “The court did not make a finding about genocide or call for a ceasefire in its ruling.”

This mischaracterization of the court’s ruling is a clear effort by the U.S. government to spin what was actually a very specific set of orders the court issued to Israel. Moreover, the court did not issue a finding on genocide, not because it concluded Israel’s actions do not constitute genocide, but because that determination would be made following a multi-year legal process, which the judges have now said should proceed.

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In a 15-2 ruling, the ICJ judges ordered that Israel must prevent the following actions against the protected “group,” which the court defined as the Palestinians of Gaza: “(a) killing members of the group; ( b ) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and ( d ) imposing measures intended to prevent births within the group.” While the specific word “ceasefire” was not mentioned in the order, the ruling could not be clearer about the court’s intent. It literally ordered Israel to stop killing Palestinians in Gaza “with immediate effect.”

In issuing its provisional measures, the court upheld “the right of Palestinians in the Gaza Strip to be protected from acts of genocide and related prohibited acts” under the Genocide Convention. It found that “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment.”

“Israel must take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip,” the court saidOpens in a new tab. It also ordered Israel to halt and punish incitement to genocide, to preserve any evidence of violations of the Genocide Convention by its forces or personnel, and to submit a report on its compliance with the court’s orders within one month.

Donoghue read aloud several statements made by Israeli officials, which South Africa contended indicated “genocidal intent.” Among these was the statement by Israeli Defense Minister Yoav Gallant announcing there would be “no electricity, no food, no fuel” allowed into Gaza and saying, “We are fighting human animals.” She also read a statement from Israeli President Isaac Herzog saying of the people of Gaza, “It is an entire nation out there that is responsible.”

Donoghue, the president of the ICJ, is an American who worked as a top legal adviser at the State Department under President Barack Obama. She voted in favor of every order the court issued against Israel. While judges do not officially operate as agents of their home governments, it was nonetheless striking that Donoghue ruled against Israel at a time when the U.S. has officially denounced the accusations leveled by South Africa and continues to fuel Israel’s military onslaught.

The ruling at the court is undoubtedly important in a symbolic sense: It found that the Palestinians of Gaza are a protected group under the provisions of the Genocide Convention and that South Africa had proven that there is a reasonable basis to litigate whether Israel’s military onslaught constitutes a genocide.

But it also represents a technical coup for Israel, which has already argued it is not committing genocidal acts. The bottom line is that the court has ruled that Israel should stand trial on charges of genocide in Gaza and ordered it to stop killing Palestinians in Gaza. But the U.S. and Israel clearly believe the court’s ruling contains a significant loophole that Israel can exploit to continue its war against Gaza. Israeli Prime Minister Benjamin Netanyahu has vowed that no one will stop the war against Gaza, includingOpens in a new tab The Hague. The court’s rulings, which did not explicitly order an immediate cessation of the military assault, is already being emphasized in Tel Aviv.

While generally denouncing the ICJ ruling, Netanyahu asserted that the court “rightly rejected the outrageous demand” for an immediate halt to the military attacks on Gaza. “The very claim that Israel is carrying out genocide against Palestinians is not only false, it’s outrageous, and the willingness of the court to deliberate it at all is a mark of disgrace that will not be erased for generations,” Netanyahu, reacting to the ruling, said.

He also vowed Israel will keep fighting “until total victory, until we defeat Hamas, return all the captives and ensure that Gaza will not again be a threat to Israel.”

Gallant, whose statements were cited as evidence of genocidal intent, added that Israel “does not need to be lectured on morality in order to distinguish between terrorists and the civilian population in Gaza.”

He said Israel will continue its war. “Those who seek justice, will not find it on the leather chairs of the court chambers in The Hague — they will find it in the Hamas tunnels in Gaza, where 136 hostages are held, and where those who murdered our children are hiding.”

“Hague Shmague,” tweeted Netanyahu’s minister of national security, Itamar Ben-Gvir.

Naledi Pandor, South Africa’s minister of international relations, said outside the court that she was grateful for the court’s ruling, but wished it had ordered an explicit halt to Israel’s attacks. She argued that the court’s orders would not be enforceable if Israel does not actually cease its military attacks and state of siege. “Without a ceasefire, the order doesn’t actually work,” she said.

South African President Cyril Ramaphosa said in speech that, with the ICJ ruling, “Israel stands before the international community, its crimes against the Palestinian people laid bare.”

The U.S. government has long shielded Israel from international legal consequences for its actions against the Palestinians in both Gaza and the West Bank. The only enforcement mechanism for rulings from the ICJ reside at the U.N. Security Council, where the U.S. regularly wields its veto power.

The State Department has refusedOpens in a new tab to answer whether the Biden administration will abide by the ICJ’s provisional orders, but its statement after the ruling indicates it is already aggressively spinning an alternative interpretation of a clear set of orders imposed on Israel. This proceeding may herald the intensification of the global debate over whether international law and courts have relevance, or whether the U.S. will remain the ultimate judge over which nations must face the consequences for their violations of the laws and conventions.

Update: January 26, 2024, 1:40 p.m. ET
This piece was updated to include the State Department response to the ICJ’s ruling and to add additional context about the specific provisional orders issued against Israel.

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