“The Peace Palace, seat of the International Court of Justice, the Hague, Netherlands. The court is the principal judicial body of the United Nations.” Photo: United Nations via Flickr (CC BY-NC-ND 2.0 Deed)
THIS POST WAS FIRST PUBLISHED at GroundUp
The judgment is likely to be more important for the moral statement it makes than any short-term results it produces
The ruling on Friday by the International Court of Justice (ICJ) is a victory for human rights and justice.
Fifteen of the seventeen judges found that South Africa made a plausible case that the dreadful things being done to the people of Gaza by Israel amount to genocide, and that Israel’s leaders have made public comments that on the face of it incite genocide.
The 29 page judgment describes the horrific situation facing the people of Gaza as a result of actions by the Israeli government, including its army. It then states:
“In the court’s view, the facts and circumstances mentioned above 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 [Genocide] Convention.”
This simple finding vindicates the hundreds of thousands of protesters across the world to whom this has seemed obvious since about mid to late October. It shows they are not deluded and part of some massive propaganda project, as the Israeli government and 210 members of the US Congress would have us believe.
Those members of Congress, three days before the ICJ ruling, wrote:
“South Africa has filed a grossly unfounded case against Israel at the International Court of Justice (ICJ), accusing Israel of genocide and asking the court to order Israel to immediately halt its military efforts in Gaza. We write to you to express our disgust at this filing, which perpetrates false and dangerous allegations against the Jewish state.”
The ICJ ruling shows that the Congressmen’s statement is nonsense. While the court did not, could not, was not asked to, nor expected to make a definitive finding at this stage on whether Israel is committing genocide – such a ruling could take years – it upheld South Africa’s contention that there is a plausible case of genocide on the part of Israel.
It should be mortifying for Israel that its president, Isaac Herzog, is named in the judgment for making a “dehumanizing” statement. Order three of the ruling states:
“The State of Israel shall 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.”
Even Israeli former Chief Justice Aharon Barak, an ad hoc judge on the ICJ panel, signed onto this particular order.
The court also ordered Israel not to impede humanitarian aid into Gaza, to preserve evidence of allegations of violations of the Genocide Convention and to report back to the court within a month.
The people of Gaza may feel understandable disappointment that the ICJ did not order a ceasefire. But order one of the ruling is worth reading carefully:
“The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, 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.”
Order two extends the above to the Israeli military.
Nadav Weiman has previously explained on GroundUp Israel’s two doctrines of operation in its wars on Gaza: (1) zero risk to its soldiers and (2) disproportionate damage to military assets and civilian infrastructure and properties, known as the Dahiya doctrine.
These doctrines appear radically at odds with orders one and two. Yet it is unlikely Israel would be willing to continue fighting in Gaza without applying these doctrines.
The continued massive indiscriminate killing of civilians, destruction of homes, hospitals, water and electricity infrastructure are likely inconsistent with orders one and two.
Whether Israel will genuinely attempt to carry out the ICJ’s orders remains to be seen. The court has no enforcement powers. It depends on its member states to voluntarily abide by its rulings and for the United Nations Security Council to take action to enforce them. It would be tragic and sadly ironic if Israel – whose defenders often cite the genocide of Jews in World War II as the reason for their support of Israel – undermines the legitimacy of the international institution tasked with preventing and punishing genocide.
While the court has no jurisdiction over Hamas, because it is not a state, the judges wrote that the court is “gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups and calls for their immediate and unconditional release.”
Hamas welcomed the ruling. It should show that it is committed to what the judges have said by immediately releasing the approximately 100 remaining hostages.
Criticism has been directed at the South African government for its hypocrisy in foreign affairs. Much of that criticism is fair: the bizarre bungled invasion of Lesotho in 1998, the failure to take action against Robert Mugabe’s eradication of democracy in Zimbabwe, the failure to arrest Sudanese President Omar al-Bashir in 2015, and the cosying up to Russia since its stepped up invasion of Ukraine in 2022.
But South Africa has done the right thing here and it should be commended. The real heroes of the ICJ case may be less our political officials and more the brave lawyers – including John Dugard, Tembeka Ngcukaitobi, Adila Hassim and Max du Plessis – who ran the case, as well as the numerous South African protesters who have called for action to be taken since the war in Gaza broke out. It has been an effective demonstration of people’s power.
It may take many years before a more just situation is achieved in Israel and Palestine, but the ICJ ruling is an important step in the right direction.
