New Delhi: The most significant aspect of the International Court of Justice’s historic ruling in the genocide case against Israel on Friday is its decision to examine what is happening to the Palestinian population in Gaza through the legal lens of genocide rather than ‘ordinary’ laws of war.
The distinction is crucial because, as the court itself notes in paragraph 40 of its 29 page order, Israel had wanted the ICJ to take the view that “the appropriate legal framework for the conflict in Gaza is that of international humanitarian law (IHL) and not the Genocide Convention.”
Adopted by the international community in 1948 in the aftermath of the Holocaust and World War II, the Genocide Convention outlaws the destruction, in whole or in part, of a national, ethnic, racial or religious group through killing, physical or mental injury, preventing births or “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”
As of today, more than 26,000 Palestinians have been killed by Israel in Gaza since October 7, 2023, of whom 10,000 are children, nearly 2 million people have been displaced through relentless bombardment and the conditions of life they are subjected to are catastrophic.
Why does Israel want to be judged by IHL, i.e. the body of laws that regulate the conduct of war and which prohibits the intentional harming of non-combatants, rather than the Genocide Convention? Because that gives it a way out. As the court noted, Israel “argues that, in situations of urban warfare, civilian casualties may be an unintended consequence of lawful use of force against military objects, and do not constitute genocidal acts.” Moreover, violations of IHL would not have given South Africa the locus to move the ICJ in the same way that violations of the Genocide Convention do. In a worst case scenario for Israel, serious breaches of IHL might one day become the subject of prosecutions at the International Criminal Court but current Israeli Defence Force (IDF) operations in Gaza would not be affected.
While Israeli leaders have bristled at the charge of genocide for political reasons – Tel Aviv and its Western allies still like to believe Israel is an upstanding member of the ‘rules based order’ – their main fear has been that the Palestinians would win international legal recognition as “a protected group within the meaning of Article II of the Genocide Convention.” This is precisely what the ICJ has now done in paragraph 45. That this has happened for the first time is significant, as is the fact that only two of the ICJ’s panel of 17 judges (which included one ad hoc judge each from Israel and South Africa) dissented. In other words, judges from countries whose governments are closely allied to Israel have signed on to the verdict.
The consequences of this virtually unanimous ruling for Israel and the IDF are devastating, as we shall see below, even if the ICJ stopped short of ordering the immediate ceasefire that South Africa had requested.
The ICJ’s logic
After establishing both its own jurisdiction and South Africa’s standing in taking Israel to The Hague, the ICJ says categorically in paragraph 30 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.
Since the crime of genocide requires intent, the court also noted South Africa’s claim that “genocidal intent is evident from the way in which Israel’s military attack is being conducted, from the clear pattern of conduct of Israel in Gaza and from the statements made by Israeli officials in relation to the military operation in the Gaza Strip.”
After quoting extensively from UN reports on the humanitarian crisis in Gaza, the ICJ took “note of a number of statements made by senior Israeli officials,” especially the statements by Yoav Gallant, Defence Minister of Israel, that he had ordered a “complete siege” of Gaza City and that there would be “no electricity, no food, no fuel” and that “everything [was] closed”, and that he told Israeli troops on the Gaza border:
“I have released all restraints . . . You saw what we are fighting against. We are fighting human animals. This is the ISIS of Gaza. This is what we are fighting against . . . Gaza won’t return to what it was before. There will be no Hamas. We will eliminate everything. If it doesn’t take one day, it will take a week, it will take weeks or even months, we will reach all places.”
The court also quoted the infamous statement made Isaac Herzog, President of Israel, about the residents of Gaza:
“We are working, operating militarily according to rules of international law. Unequivocally. It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not aware, not involved. It is absolutely not true. They could have risen up. They could have fought against that evil regime which took over Gaza in a coup d’état. But we are at war. We are at war. We are at war. We are defending our homes. We are protecting our homes. That’s the truth. And when a nation protects its home, it fights. And we will fight until we’ll break their backbone.”
These facts and circumstances, the court concluded, “are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention.”
The court then noted that there was every possibility of an already bad situation for the Palestinian population in Gaza getting even worse:
“The Court considers that the civilian population in the Gaza Strip remains extremely vulnerable. It recalls that the military operation conducted by Israel after 7 October 2023 has resulted, inter alia, in tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities and other vital infrastructure, as well as displacement on a massive scale … The Court notes that the operation is ongoing and that the Prime Minister of Israel announced on 18 January 2024 that the war “will take many more long months”. At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating.
“The WHO has estimated that 15 per cent of the women giving birth in the Gaza Strip are likely to experience complications, and indicates that maternal and newborn death rates are expected to increase due to the lack of access to medical care.
“In these circumstances, the Court considers that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment.”
Having highlighted the mounting threat faced by the Palestinians in Gaza as a protected group under the Genocide Convention, it would have been logical for the court to have ordered an immediate ceasefire as a provisional emergency measure. Given the politics of the court, however, such an order would likely have been contested and even if a small majority of judges voted for a ceasefire the division might actually have given Israel and its Western backers room to denounce the ICJ verdict as politically or ideologically driven. Given that Israel was never going to abide by any ceasefire demand – and a US veto in the Security Council would undoubtedly have stood in the way of attempts by some countries to seek enforcement of such a verdict – the compromise struck is a positive outcome for South Africa and the Palestinians.
What happens next
No matter how many times the order says that the court has not yet gone into the ‘merits’ of the case and that these are only preliminary findings, the fact that the ICJ has held the Genocide Convention to be prima facie applicable and that the concerns raised by South Africa are plausible enough to merit provisional measures against Israel tells its own story.
The court has ordered Israel – in relation to Palestinians in Gaza – to “take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular: (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.
Second, Israel has been ordered to ensure that its military does not commit any of these acts.
These two provisional measures ought to now result in the ICJ and the international community treating every civilian death or injury caused by the IDF in Gaza from here on as a violation of the court’s order.
Third, Israel has been ordered to “take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip”. Ideally this should be applied retroactively and lead to the prosecution of leaders like Gallant and Herzog, not to speak of the dozens of others in official and semi-official positions who have been inciting genocide against the Palestinians. Failure to do so will put Israel in violation of the order.
Israel has also been asked to “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.”
Taken together, these measures, along with Israel’s obligation to report back to the ICJ within a month on its compliance, might prevent the further targeting of the Palestinians as a group protected under the Genocide Convention. But even it it doesn’t, the ICJ ruling will help fuel civil society demands for a change of course in Europe and North America – where governments still support Israel’s war against the Palestinians.
That is why the ICJ’s ruling is likely to mark a turning point, not just in Gaza, but perhaps in Israel too. Thanks to Benjamin Netanyahu, the historic injustice the Israeli state has committed against the Palestinians now has a name – Genocide – and this does the Israeli people no credit.
A final word for South Africa, whose prestige on the world stage is today surely unparalleled. Perhaps other counties in the Global South will gain some courage and inspiration from them. Perhaps they will learn a lesson in statecraft and diplomacy: how the pursuit of national interest and the fight for global justice need not be contradictory goals.
Let the pretenders step aside. It’s time to ask how one says ‘vishwaguru’ in Xhosa or Zulu.