Yesterday, the International Court of Justice (ICJ) delivered an interim ruling on South Africa’s genocide case against Israel. Its decision is likely to please neither side of the debate, but seems broadly balanced: it criticised Israel, but failed to demand a suspension of the conflict.
The court, which sits in The Hague, was formed in 1945 and is one of the principal organs established by the Charter of the United Nations. It is the UN’s highest court.
On 29 December, South Africa brought its proceedings in the ICJ under Article 9 of the Genocide Convention of 1948. It claimed that Israel was engaging in genocidal acts against the Palestinian people in Gaza. The Convention provides that genocide is to be defined as acts ‘committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.’ These acts include killing, or causing serious bodily or mental harm, to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and imposing measures intended to prevent births within the group.
The decision of the court is a preliminary ruling which does not determine the question of whether genocide is occurring in Gaza. However, the ICJ concluded that what are known as ‘provisional measures’ should be granted in order to protect the civilian population in Gaza from harm, indicating that the steps Israel had taken to mitigate harm during the conflict were insufficient.
The ICJ painted a stark picture of conditions in Gaza, particularly in circumstances where Israeli Prime Minister, Benjamin Netanyahu, had outlined that the war may continue for many more months. The court also highlighted a number of inflammatory statements from Israeli politicians, including its defence minister, Yoav Gallant who had described Hamas as ‘human animals’ and said that ‘we will eliminate everything.’
In reaching its conclusion on the measures to be adopted, the court ruled that Israel must take ‘all measures within its power’ to prevent the commission of genocide in relation to Palestinians in Gaza. It called on Israel to ensure that its military forces do not commit genocide; ordered that it must prevent and punish any incitement to genocide; and that it must preserve any evidence of breaches of the Genocide Convention. Israel was also required to enable the provision of basic services and humanitarian assistance. Finally, it was ordered to report to the ICJ on all measures it had taken, within a month. But the ICJ stopped short of calling for an immediate ceasefire, as requested by South Africa. The ruling is binding in international law; although the ICJ has no legal means of enforcing its rulings.
As a British/Israeli national, I suspect that neither the tone, nor the substance, of the judgment will go down well in Israel. Spokesman, Eylon Levy described the claim as an ‘absurd blood libel’ and the Israeli Government had employed a strong legal team seeking to have it thrown out on procedural grounds. In the UK, Rishi Sunak condemned the ‘horrific irony’ of Israel being accused of genocide.
The Israeli Government has longstanding and reasonable concerns about the political biases at the UN. However the ICJ is a legal body, and its reasoned judgment will be more difficult for Israel and its allies to ignore. It is significant that the ad hoc Israeli judge on the court, Aharon Barak (a former President of the Israeli Supreme Court) voted in favour of the measures designed to stop incitement and to provide humanitarian assistance.
The ruling is a compromise. The ICJ refused to impose all of the provisional measures called for by South Africa; and it could be argued that the main effect of the provisional measures is to require Israel to meet obligations that it has already said that it will. The court also wisely noted its grave concerns about the fate of the Israeli hostages, who remain in Gaza. It called for their immediate and unconditional release.
Despite concerns raised by the ICJ, one should not conclude that Israel will be found guilty of genocide. The court will return to that question at a later date. It noted the appalling attack which led to the war and the fact that Israel states that it is acting in self-defence and has a responsibility to protect its citizens. Proving genocide will be very difficult. In my view the case does not hold up – it is not sufficient to simply argue that there have been a large number of civilian casualties during the course of a war – there must be intent.
The ruling is clearly a shot across the bow for Israel and may result in further political pressure being brought to bear by its allies in the West
In that context, it is worth noting that the tragic toll on civilians caused by the war in Gaza is hardly unique. During the West’s unsuccessful ‘war on terror’ it was estimated by the Watson Institute at Brown University that over 940,000 people died as a result of direct war violence. The indirect death toll is estimated at between 3.4-3.6 million people in Afghanistan, Pakistani, Iraq, Syria and Yemen, most of them civilians, as a result of the destruction of public services, infrastructure, and environmental damage, as well as the spread of disease. In 2017, during the battle for Mosul against ISIS, it is suggested that 40,000 people were killed, mainly civilians. Many were killed in air strikes, or by artillery fire.
The truth is that any war in a residential area is likely to result in large numbers of deaths, unless the civilian population is allowed to leave. In the case of Gaza, it is notable that there are two borders. However, in November 2023, the Prime Minister of Egypt was quoted as having said: ‘We are willing to sacrifice millions of lives to ensure that no one encroaches upon our territory.’ This point is little remarked upon.
So what happens next? The ruling is clearly a shot across the bow for Israel and may result in further political pressure being brought to bear by its allies in the West.
If Israel agrees to comply with these provisional measures it may have to adapt its approach in Gaza. Israeli politicians would also be well advised to tone down their rhetoric and make clear that their war aims are simply the return of the hostages and the removal of Hamas from power. Any future ruling on the question of whether the ICJ believes Israel is guilty of genocide remains some years away. In the short term, the conflict will continue.
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