The International Court of Justice (ICJ) has found that there is a feasible case that Israel has breached the convention against genocide.
The court held 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 Convention.”
The court then stated that the “civilian population in the Gaza Strip remains extremely vulnerable,” that Israel’s military operations have resulted in “tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities and other vital infrastructure,” that many Palestinians have “no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating,” and that “maternal and newborn death rates are expected to increase.” The court concludes by stating that “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further.”
The court’s initial decision puts to rest the Biden administration’s claim that the case is “meritless.” Nevertheless, satisfying the Court that there is a feasible case of genocide only needed South Africa to leap a far lower bar than that which will be required to attain a final determination that Israel has breached the genocide convention.
To satisfy the requirement of plausibility, South Africa only had to establish that genocidal intention was one of the reasonable inferences that could be drawn from the evidence.
But for the final decision, which will take years, it will have to prove that intention by Israel to breach the genocide convention is overwhelmingly the most probable inference to be drawn from the evidence or perhaps even “exact proof” that does not rely on drawing inferences to any significant extent.
Thomas S. Warrick, director of the Future of DHS project at the Scowcroft Centre for Strategy and Security’s Forward Defence says that in this endeavour South Africa will likely fail.
Israel has its stated goals which are to remove Hamas from power and return the hostages. Even if it pursues these goals with reckless or insufficient regard to civilian casualties this alone does not prove genocidal intent.
In finding that there was a plausible case the Court pointed to following statements by members of the Israeli government:
On 9 October 2023, Mr Yoav Gallant, Defence Minister of Israel, announced 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.”
On the following day, Minister Gallant stated, speaking to 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.”
On 12 October 2023, Mr Isaac Herzog, President of Israel, stated, referring to 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.”
On 13 October 2023, Mr Israel Katz, then Minister of Energy and Infrastructure of Israel, stated on X (formerly Twitter):
“We will fight the terrorist organization Hamas and destroy it. All the civilian population in [G]aza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.”
The ICJ ordered six provisional measures including for Israel to refrain from acts under the Genocide convention, prevent and punish the direct and public incitement to genocide, and take immediate and effective measures to ensure the provision of humanitarian assistance to civilians in Gaza. The Court also ordered Israel to preserve evidence of genocide and to submit a report to the Court, within one month, of all measures taken in line with its order.
The ICJ did not grant South Africa the most important preliminary order it sought- a ceasefire.
Depending partly on where their sympathies lie, different experts put differing interpretations or emphasis on the ICJ failure to order a ceasefire.
Thomas Warrick emphasises that “The court did not try to order Israel to end the war in a way that would leave Hamas in power in Gaza.”
Likewise, Shalom Lipner senior fellow at the Scowcroft Middle East Security Initiative of the Atlantic Council’s Middle East Programs says that the ICJ ruling is unlikely to change Israel’s warfighting or narrative:
“The Israel Defence Force’s mission to dismantle the military and governance infrastructure of Hamas in Gaza, and to secure the freedom of Israeli hostages in Hamas captivity, does not inherently clash with the court’s stipulations that Israel must “take all measures within its power” to prevent inflicting death or injury on “the Palestinians in Gaza” or that it must also provide them with “basic services and humanitarian assistance.” Israel has argued consistently, in fact, that it continues to perform in precisely this manner, despite the complex circumstances of fighting a terrorist group embedded among a civilian population.”
On the other hand, Tuqa Nusairat the director for strategy, operations, and finance at Atlantic Council’s Rafik Hariri Centre & Middle East Programs emphasises that any Court order for a ceasefire would have been unlikely to be implemented. Issues regarding implementation of ICJ orders end up in Security Council and it likely that US would simply have used its veto power in the Council to ensure the order would not be implemented.
Nusairat argues the orders that the Court has, instead, made will operate to “keep the focus on the urgency of preventing genocidal acts pending further investigation”.
I would add that, politically, these orders will be far more difficult for Israel and the US to walk away from than an order for a ceasefire. I don’t think that they will. More likely than walking away they may adopt interpretations of the Court’s preservation of evidence and the reporting requirement in ways that best suit them. Israel must provide a copy of its report to South Africa who will have the opportunity to comment on it to the Court.
Akila Radhakrishnan, strategic legal advisor for gender justice for the Atlantic Council’s Strategic Litigation Project points to the Court’s statements detailing the destruction from Israel’s military operation and its conclusions that the “civilian population in the Gaza Strip remains extremely vulnerable,” and that “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further”.
She says these findings are important in understanding the context for the measures the court then ordered, and what might be required to comply with them:
“It’s hard to imagine that Israel could comply with orders to prevent the commission of genocidal acts, including by its military forces, and ensure the provision of humanitarian aid, without halting or at least drastically curtailing its military operations.”