The Hague’s decision means Israel is now in the dock for genocide
There are caveats, including the absence of a ceasefire order. But the ICJ ruling will give a tailwind to international calls for trade sanctions and arms boycotts against Israel
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
There are two main takeaways from the International Court of Justice’s decision on Friday ordering provisional measures against Israel on the basis of South Africa’s genocide allegations against it.
The first, and the most crucial, is that through the nature of the orders and the language it used, it could be cautiously said that the court does not appear to think that Israel is currently and actively committing genocide against the Palestinians.
Had that been the case, the court would surely have acceded to South Africa’s demand that Israel immediately and unilaterally halt its military operation in Gaza. And it would have also used the word “desist” in its order, as was explicitly used by South Africa in its application against Israel, implying current and likely future genocidal activity.
At the same time, the court nevertheless accepted the highly damaging allegation that there is “plausibility” to South Africa’s claims that the Palestinians in Gaza need protecting from genocide, and indeed did so in an overwhelming 15 to 2 decision.
This step indicates that the court does not believe South Africa’s incendiary allegations are entirely unfounded, a determination which Hamas, South Africa and Israel’s enemies broadly celebrated in the immediate aftermath of the decision.
And it is this aspect of the decision that could have serious repercussions for Israel’s moral standing, its international reputation and its diplomatic standing. Because, as court President Joan Donoghue stated, the court is not dismissing the case out of hand, as Israel requested.
The State of Israel is thus in the dock for genocide, with the ICJ saying there is prima facie evidence that there is a case for Israel to answer.
This will surely give a tailwind to international calls for trade sanctions and arms boycotts against Israel. Critics of Israel, in both the general population and the governments of foreign countries — of which there are many — will surely point to this fact as a reason not to have anything to do with the country.
Still, there are caveats to this gloomy picture.
The bar in this preliminary process is not whether or not Israel is committing genocide, but only whether there is “plausibility” to South Africa’s claims that the Palestinians need protecting, and failure to assert such plausibility would have meant throwing out the case entirely.
This is a much lower standard, and given the highly problematic comments made by some government ministers and lawmakers seemingly minimizing the need to protect Gaza’s civilians, it is perhaps not surprising that the court did not see fit to dismiss the allegations.
Taken together with some of the broader aspects of genocide as defined in the Genocide Convention, including deliberately causing a group of civilians serious bodily or mental harm or inflicting conditions to destroy human life, it was perhaps the very least the court could do to accept the plausibility of the claims.
The court apparently decided that it could not ignore reckless comments by Defense Minister Yoav Gallant at the start of the war about imposing a total siege without food, water, fuel and electricity (though Israel has since allowed all of these to go into Gaza), and references to “human animals” which were read out in court (though Gallant was speaking specifically of Hamas, not of all Gazans). But as the court pointed out, this has no bearing on a final ruling.
Given the level of destruction in Gaza, the huge toll on civilian lives and the awful conditions Gazans are now facing, the court and its judges evidently did not believe it could dismiss the case outright.
And, as stated, this might be seen to be reflected in the court’s practical orders, including its refusal to order Israel to cease fire, but rather to remind Israel of its obligations under the Genocide Convention and the need to provide humanitarian assistance.
As Prime Minister Benjamin Netanyahu pointed out, the court basically upheld Israel’s right to self-defense against the murderous and savage terrorist enemy it faces in the shape of Hamas in Gaza. In so doing, perhaps the court was acknowledging that removing the Hamas threat, and not the destruction of the Palestinian people, is the goal of Israel’s campaign in Gaza, as Israel’s defense team painstakingly demonstrated in its presentation at The Hague two weeks ago.
