In a recent ruling on South Africa’s genocide charges against Israel, the International Court of Justice (ICJ) did not determine whether Israel committed genocide but focused on the plausibility of genocide criteria. The court, part of the United Nations, contextualised the conflict in the aftermath of attacks by Hamas. The decision, while not enforcing a halt to Israel’s offensive, emphasised measures to prevent potential further tragedy and urged Israel to control its actions in Gaza, impacting international perceptions of the conflict.
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By Marc Champion
I can’t comment on whether what the ICJ decided was good law, but it was a good outcome.
The first thing to be clear on is that the court, as it said again and again, was not ruling on whether Israel has committed genocide. Thursday’s decision dealt only with whether it was plausible that some of the criteria that comprise genocide under the 1948 convention — in particular the intent to destroy a people — might be present. This was a very, very low bar to meet.
The second important factor is that South Africa asked the court to take a range of measures to ensure the worst doesn’t happen between now and when the merits of the case eventually are decided, which could be years away. The convention was conceived to prevent genocide, not to comment on it after the fact, so having such a safeguard makes sense. Here again, the court only had to decide whether the risk of further mass human tragedy might plausibly exist. With tens of thousands already dead or injured in Gaza, to the best of our knowledge, and an estimated 1.7 million people (out of about 2 million) displaced from their homes and undersupplied with shelter, food, power and water, it’s hard to see how they could decide otherwise.
The ICJ is part of the United Nations and it’s notable that the court put the current fighting firmly into the context of the slaughter of Israelis that Hamas carried out on Oct. 7. UN resolutions condemning Israel’s actions in Gaza have failed even to name Hamas. The court also called on the designated terrorist organization to release the remaining 100-plus hostages that it holds — unconditionally. Hamas is unlikely to comply just because the ICJ said so, but it was the right thing for the court to say.
This was, realistically, the best outcome that Israel could have expected. Each part of the ruling was endorsed by either 15 or 16 of the 17 judges, with even the Israeli judge voting against his country in two instances. It was always unlikely that with such a low legal bar and such intense global attention, the ICJ would decide there was no case to be heard.
That might have been a harder call had Israel’s president, defense minister, prime minister and other cabinet members not said things in public that sounded a lot like they wanted to inflict collective punishment on the population of Gaza. Israel’s government showed the court some heavily redacted orders from the war cabinet to show that despite this talk, the cabinet had demanded that more food and more aid and fuel be sent to Gaza’s population, and that civilians be spared. The court, however, only had to rule on whether there was a plausible case to investigate, and the nation’s leaders unwisely gave the court cause.
The decision not to demand that Israel halt its offensive was also right, whether or not you believe that at least a temporary cease-fire is needed, which at this point I do. That’s because unlike Russia’s 2022 invasion of Ukraine, Israel’s decision to send troops into Gaza clearly was provoked and was, at the least initially, a legitimate act of self-defense. Any cease-fire will need to be negotiated, not court-ordered. The question for the court isn’t whether Israel has the right to pursue Hamas into Gaza, but how it treats the civilian population in the process.
And this is precisely what the ICJ ruling addressed. It demanded that Israel take proactive measures to control the behavior of its soldiers and leaders to ensure they don’t commit or incite actions consistent with genocide. It also required Israel to improve the living conditions of Gaza’s civilians. In other words, it has asked that Israel do what it says it is already doing, and then report back, in a month, on the actions it actually took.
You can argue that none of this matters, because the ICJ has no powers of enforcement, or that it’s humiliating and discriminatory, given that other countries have razed cities in war without facing this kind of legal jeopardy. Yet Israel’s government can treat the ruling as a defeat or as an opportunity. Choosing the latter would be the smarter path. Its war aims in Gaza — eliminating Hamas and securing the safe release of hostages — are neither compatible nor, as regards Hamas, achievable using its current tactics.
In the meantime, Israel has lost the battle for international hearts and minds, which for a state so isolated is dangerous. Even in the US, a country that traditionally has offered rock solid support to Israel, opinion has become deeply divided over the justifiability of casualty levels and conditions in Gaza. The ICJ ruling will be manipulated by both sides in that fight.
Yes, public opinion was always going to be skewed against the Jewish state by history and prejudice. It’s also true that nowhere near enough international attention gets paid to the role Hamas played in first inviting this tragedy on Gaza, and then deliberately using civilians as human shields. It is to South Africa’s shame that it did not do more to acknowledge this in its case against Israel. Yet the conduct of the war, and its framing by Prime Minister Benjamin Netanyahu and his government were choices made by them alone. The ICJ ruling should give them pause.
No one is likely to be pleased by the International Court of Justice’s provisional ruling on South Africa’s genocide charges against Israel. Much of the world will be furious that the 17 judges didn’t order Israel to halt the war in Gaza. Israelis and many others will be outraged that they failed to outright dismiss charges of genocide against the people who suffered the Holocaust.
Read also:
Ivo Vegter: South Africa’s selective condemnation of ‘genocide’
What we can expect from ICJ hearings on South Africa’s genocide case against Israel
Condemning South Africa’s one-sided genocide application against Israel – Ivo Vegter
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