After the International Court of Justice Ruling

Written By Joel Beinin

On January 26, the International Court of Justice (ICJ), the highest international judicial forum and a branch of the United Nations, issued an interim order directing Israel to take provisional measures in response to South Africa’s case charging Israel with genocide. The Court ruled that Israel must refrain from committing genocidal acts of violence covered by the Convention on the Prevention and Punishment of the Crime of Genocide, “prevent and punish” public incitement to genocide (referring to the many statements by Israeli officials in command authority expressing apparent genocidal intent), and take immediate measures to provide humanitarian assistance to civilians in Gaza. The Court also ordered Israel to preserve evidence of genocide and to report to the Court within one month on the measures it has taken to carry out its order.

 

The ICJ ruling represents the first time that Israel has been called to account in an international legal forum. The Court repudiated the claims of Israel and the Biden administration that Israel’s conduct of the war in Gaza conforms to the requirements of international law.

 

As we know, on October 7 Hamas launched a horrific and brutal attack on Israeli communities, military bases, and a music festival in the “Gaza Envelope” killing some 1,200 people and taking around 240 hostage. South Africa’s Application Instituting Proceedings “unequivocally condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas and other Palestinian armed groups.” However, South Africa argued, “No armed attack on a State’s territory no matter how serious — even an attack involving atrocity crimes” can justify a violation of the Genocide Convention, “whether as a matter of law or morality.” (South Africa’s full oral argument is here.)

 

South Africa claims that Israel has plausibly violated the Genocide Convention by killing over 26,000 (21,100 at the time of submission) Palestinians, about 70% of them children and women with some 10,000 (7,780 at the time of submission) missing under the rubble. Israel has ordered the forcible displacement of at least 1.9 million Palestinians, about 85% of the population of Gaza and deprived them of adequate food, water, shelter, sanitation, and medical assistance. Israeli bombing has destroyed many medical, cultural, and religious institutions and damaged or destroyed over 355,000 homes.

 

The Court did not find Israel guilty of committing genocide. At this stage of the proceedings, that was not on the agenda. A final ruling on this issue could take several years. The Court did find that, “At least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza “appear to be capable of falling within the provisions of the [Genocide] Convention.” The government of South Africa announced that the ruling means that “Israel’s actions in Gaza are plausibly genocidal” and “There is no credible basis for Israel to continue to claim that its military actions are in full compliance with international law.

 

The Court cannot enforce its orders. That power resides in the UN Security Council, where the United States would almost certainly veto any action against Israel. So, what is the significance of the ICJ ruling?

 

Isaac Chotiner posed this question to Oona Hathaway, professor at Yale Law School, director of its Center for Global Legal Challenges and nonresident scholar at the Carnegie Endowment for International Peace, in an interview published in the January 27, 2024 issue of The New Yorker daily. Prof. Hathaway responded

 

[I]t’s a pretty big blockbuster…because the court is finding that Israel… a state that was created after World War Two, for the protection of those who had been subject to the horrors of the Holocaust, is the subject of plausible claims that it is in violation of the Genocide Convention,…a convention that, in large part, was created for the purposes of condemning and attempting to prevent genocides like the Holocaust from ever happening again. So this is a momentous decision.

 

Prof. Hathaway notes that the hardest thing for South Africa to demonstrate was a specific intent to destroy the Palestinian “group in whole or in part” (in the language of the Genocide Convention). Israel defended itself (full oral argument here) by arguing that it is not conducting a war against the Palestinian people. They are conducting a war of self-defense and Hamas bears the responsibility for the civilians Israel has killed because it has placed them in harm’s way. Prof. Hathaway believed that at least several judges would accept this argument. But only one of the seventeen judges (Judge Sebutinde of Uganda) rejected all of South Africa’s claims that there is plausible evidence of Israel’s genocidal intent. Even Israel’s Judge Aharon Barak voted with the overwhelming majority in favor of two of the six provisional measures.

On the same day that the ICJ issued its interim measures, Palestinian Americans argued in the U.S. District Court for Northern California that the Biden administration should halt its financial and military support for Israel and uphold its obligations to prevent genocide. The Center for Constitutional Rights filed the complaint in November against President Joe Biden, Secretary of State Antony Blinken, and Secretary of Defense Lloyd Austin on behalf of Defense of Children International, al-Haq, and several Palestinians. One of the Palestinian US citizen plaintiffs, Basim Elkarra of Sacramento, CA, told the court that Israel has killed more than 60 members of his extended family since October 7. The Palestinian plaintiffs testified in the courthouse or remotely from Palestine for nearly three hours about the devastation Israel has wrought in response to the October 7 Hamas attacks. All of them mentioned the Nakba of 1948: in the process of creating the state of Israel, Palestinian society was destroyed, and 750,000 Palestinians fled in fear or were forcibly expelled by Israeli forces from their homes and lands and became refugees, about 190,00 of them in the Gaza Strip. 

 

Neither of these court cases will, in and of themselves, prevent further Palestinian or Israeli deaths or implement a just resolution of the conflict in Israel/Palestine. That possibility lies in the realm of political, not legal action. They do indicate that the discourse on the question of Palestine, internationally and in the United States, is changing. It is still too soon to judge the consequences of this change.

 

Resources Regarding the ICJ Court Case Ruling:

 

Learn more about the Center for Constitutional Rights Case:

Panelist Resources:

 Resources Regarding the UNRWA Funding Cuts:

 Resources Regarding Congressional Efforts:

 

Joel Beinin
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