ICJ ruling on allegations of Israeli genocide: glass half full or half empty?

The Court recognises that there is a plausible risk of genocide in Gaza; asks Israel to take measures to avoid genocide

So the International Court of Justice (ICJ) has published its interim ruling on South Africa’s allegations of genocide against Israel. Here’s a quick take right off the bat.

First off, a reminder: the Court was not called upon to rule on whether Israel’s actions in Gaza constitute genocide, as “[s]uch a finding could be made by the Court only at the stage of the examination of the merits of the present case” — i.e., at a much later date. The Court was only called upon to establish if “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” — in other words, “whether the rights claimed by South Africa, and for which it is seeking protection, are plausible”, i.e., whether there is a plausible risk of genocide, and whether such risk justifies the request of provisional preventative measures vis-à-vis Israel.

In this respect, the ruling represents a big win for South Africa: the Court ruled that “that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible” — i.e., there is a plausible risk of genocide in Gaza — and therefore dismissed Israel’s request for dismissing the case.

Here a few points the made to sustain its argument:

The Court notes that the military operation being conducted by Israel following the attack of 7 October 2023 has resulted in a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure. While figures relating to the Gaza Strip cannot be independently verified, recent information indicates that 25,700 Palestinians have been killed, over 63,000 injuries have been reported, over 360,000 housing units have been destroyed or partially damaged and approximately 1.7 million persons have been internally displaced.

It also made reference to statements by several UN officials and institutions (the ICJ is a UN body), including:

• UN Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Martin Griffiths: “Gaza has become a place of death and despair. … A public health disaster is unfolding. … Gaza has simply become uninhabitable. Its people are witnessing daily threats to their very existence — while the world watches on”.

• The World Health Organization (WHO): “An unprecedented 93% of the population in Gaza is facing crisis levels of hunger, with insufficient food and high levels of malnutrition. At least 1 in 4 households are facing ‘catastrophic conditions’: experiencing an extreme lack of food and starvation and having resorted to selling off their possessions and other extreme measures to afford a simple meal. Starvation, destitution and death are evident”.

• UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), Philippe Lazzarini: “In the past 100 days, sustained bombardment across the Gaza Strip caused the mass displacement of a population that is in a state of flux — constantly uprooted and forced to leave overnight, only to move to places which are just as unsafe. This has been the largest displacement of the Palestinian people since 1948. This war affected more than 2 million people — the entire population of Gaza. Many will carry lifelong scars, both physical and psychological. The vast majority, including children, are deeply traumatized”.

• A press releases by 37 Special Rapporteurs, Independent Experts and members of Working Groups part of the Special Procedures of the United Nations Human Rights Council, in which they voiced alarm over “discernibly genocidal and dehumanising rhetoric coming from senior Israeli government officials”.

In this regard, the Court specifically took note of a number of genocidal statements by senior Israeli officials, including Yoav Gallant, Defence Minister of Israel, and Isaac Herzog, President of Israel.

In light the above, the Court concluded that:

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 Convention.

As noted, the Court’s ruling, insofar as its analysis of the risk of genocide is concerned, definitely represents a win for South Africa.

The Court then turned its attention to the issue of provisional measures. On this point, the issue of “who won” is less conclusive. The Court fell short of calling for an outright ceasefire — which is what South Africa, and the pro-Palestinian global movement, was hoping for.

However, the Court did rule that “there is a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court gives its final decision” — i.e., that there is a real and imminent risk of genocide — and called upon Israel to “take all reasonable measures within their power to prevent genocide”. This includes desisting from the commission of any and all acts within the scope of Article II of the Genocide Convention, in particular:

killing members of the group [i.e., the Palestinian in Gaza];

causing serious bodily or mental harm to the 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.

It also called upon Israel to take all measures to prevent:

the expulsion and forced displacement from their homes;

the deprivation of:

• access to adequate food and water;

• (access to humanitarian assistance, including access to adequate fuel, shelter, clothes, hygiene and sanitation;

• medical supplies and assistance;

and the destruction of Palestinian life in Gaza.

Finally, it stated that Israel should ensure that its officials do not “engage in direct and public incitement to commit genocide, conspiracy to commit genocide, attempt to commit genocide, or complicity in genocide”.

Interestingly, Israel’s ad hoc appointed judge, Aharon Barak, sided with the majority in ordering many of the provisional measures.

So, glass half empty or half full? My initial reaction, as that of many others, was one of disappointment to the fact that the Court refused to call for a hard ceasefire (which many pro-Israeli commentators are bragging about and presenting as a win) and simply limited itself to asking Israel to “take actions to prevent genocide”. This may be seen as a green light to Israel to continue the military operation, albeit with a bit more restraint.

However, upon closer examination, it becomes clear that, if taken literally, the Court’s demands — which include “desist[ing] from… killing members of the [Palestinians in Gaza]” — effectively equate to a cessation of hostilities.

Moreover, as the legal expert Heidi Matthews wrote on X:

Some will be disappointed that the Court stopped short of ordering a ceasefire. But the fact that the Court ordered the measures it DID, including directing Israel not to commit or incite genocide, indicates it has concluded that it is (a) plausible for Palestinians in Gaza to claim protection from genocide, and (b) that the need for protection is urgent.

I think we can infer from this that at a minimum there is a serious risk that Israel will commit genocide. This is important because it puts all states on formal notice of the serious risk of genocide, which triggers states’ duty to take concrete steps to prevent genocide.

Among other things, this means that in order for states to fulfill their international obligations under the Genocide Convention they must do something. For e.g., states exporting arms or military technology to Israel must stop.

The short story: this order on provisional measures will have an important and immediate impact on how states are required to act under international law. It will also radically shift the global conversation about what is happening in Gaza.

It’ll be interesting to see how things play out. But ultimately my preliminary conclusion is that the glass is half full: in narrative terms, the Court saying that what’s happening in Gaza could plausibly be considered (or raise the imminent risk of) genocide is, objectively, a huge blow to Israel; in concrete terms, it is unlikely to bring about dramatic changes to the military reality on the ground, though it might force Israel’s Western backers to reconsider the quasi-unconditional support demonstrated so far. We’ll see.

That’s all for now. I’ll keep following developments as they come.

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Thomas Fazi

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