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The Promise and Pitfalls of the International Court of Justice Judgment on Gaza

The International Court of Justice made a significant ruling on the Gaza war earlier this year. The ruling was in response to an appeal from South Africa to judge Israeli conduct in Gaza as violating the international Convention on the Prevention and Punishment of the Crime of Genocide. The South African appeal also urged the Court to order Israel to stop its military campaign in Gaza.

The Court issued its preliminary ruling on January 26. While the ruling reached no conclusion on whether Israel had violated the Genocide Convention — the Court will likely take years to decide that point — it did order Israel to prevent further killing or other harm to Palestinians in Gaza.

This ruling is a notable step forward for efforts to end the Gaza war. However, peace activists should be careful not to overestimate its importance. We also should not over-emphasize the specific charge of genocide at the expense of a more general concern for protecting Palestinian lives.

The Genocide Convention and the Court’s Judgment

The Convention on the Prevention and Punishment of the Crime of Genocide was approved by the United Nations General Assembly in 1948. To date, 153 countries, including Israel, have adopted the Convention.

The Convention makes genocide a crime in international law. Genocide, as defined in the Convention, consists of one or more of the following acts: 

  1. Killing members of a national, ethnic, religious, or racial group

  2. Causing serious bodily or mental harm to members of the group

  3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part

  4. Imposing measures intended to prevent births within the group

  5. Forcibly transferring children of the group to another group     

These acts can constitute genocide if they are “committed with intent to destroy, in whole or in part” the targeted group (Genocide Convention, Articles I-II).  

The Convention obliges states that have adopted it “to prevent and to punish” the crime of genocide and allows them to appeal to the United Nations to prevent genocide. Disputes among states about applications of the Convention may be submitted to the International Court of Justice (Genocide Convention, Articles I, VIII-IX).

This was the legal context in which South Africa made its appeal to the Court. South Africa alleged Israel had violated its obligations under the Genocide Convention and must cease all actions that could kill Palestinians, cause serious bodily or mental harm to Palestinians, or inflict on Palestinians conditions meant to destroy them in whole or in part. More specifically, South Africa called on Israel to “immediately suspend its military operations in and against Gaza.” 

Israel, for its part, disputed South Africa’s appeal both on technical legal grounds and because the intent to destroy Palestinians in whole or in part has not been proven. Israeli representatives claimed attempts to mitigate civilian harm and to enable humanitarian aid to reach Gaza show no such intent is present. Israel called on the Court to reject South Africa’s request for an end to the Gaza war.

The Court, in its January 26 judgment, reviewed various relevant legal issues, the current humanitarian situation in Gaza, and statements by Israeli officials such as Defense Minister Yoav Gallant that dehumanize Palestinians and seem to promise an indiscriminate military campaign.

The judgment then stated, in a crucial passage, 

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…and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention.

As noted above, the Court was not yet making any judgment about whether Israel had violated the Genocide Convention. Rather the Court was essentially saying that claims of such violations were plausible enough to justify provisional measures to protect Palestinians. 

Given this and the urgent humanitarian situation in Gaza, the Court provisionally ordered Israel to “take all measures within its power to prevent the commission” of acts against Palestinians in Gaza prohibited under the Convention: killing, causing serious harm, inflicting conditions meant to cause physical destruction, and trying to prevent births. The Court also ordered Israel to preserve evidence relevant to the ongoing case to determine genocide in Gaza.

This judgment has drawn varying reactions. Riad Malki, the Palestinian Authority foreign minister, stated the judgment meant “States now have clear legal obligations to stop Israel’s genocidal war on the Palestinian people in Gaza and to make sure that they are not complicit.” Israeli Prime Minister Benjamin Netanyahu stated, “The very notion that Israel is perpetrating genocide is not only false, it is outrageous, and the court’s willingness to discuss it is a mark of shame that will last for generations.”

The US State Department issued a statement, saying, “We continue to believe that allegations of genocide are unfounded and note the court did not make a finding about genocide or call for a cease-fire in its ruling.”

The Judgment’s Benefits, Limitations, and Dangers

The Court judgment is valuable because it focuses international attention on the Gaza war and its human costs. Further, by pursuing South Africa’s appeal and explicitly ordering Israel to refrain from genocidal acts, the Court is giving the Israeli government notice that it will be legally judged for its actions in Gaza. 

The ongoing case may help increase global condemnation of the Gaza war and heighten pressure on Israel to end its military campaign. The case may also aid in compiling an official record of the suffering and human rights violations Palestinians have endured because of the campaign. The preliminary judgment, for example, contained powerful testimony from a UN official about how “A public health disaster is unfolding” in Gaza and “Famine is around the corner.”

Nevertheless, the judgment has limitations. A final decision about whether Israel has violated the Genocide Convention is a long way off. More importantly, the Court has no power to enforce its judgments: Israel can and almost certainly will ignore the Court’s provisional orders and will likely ignore any final Court decision that conflicts with Israeli government policy.

The judgment also refrained from explicitly ordering Israel to stop the Gaza campaign. Arguably stopping the military campaign was implicit in the provisional order not to kill or harm Palestinians, but that is apparently not how the judgment is being interpreted. Muhammad Shehada, an activist in Gaza, commented ironically, “It talks like genocide & walks like genocide. No need to stop the genocidal war though! All good?”

The judgment also presents a danger for peace activists and others concerned with ending the Gaza war. As rhetorically powerful as the term “genocide” is, we should be careful not to become fixated on whether Israeli actions in Gaza constitute genocide. 

If we over-emphasize the genocide question, we risk getting bogged down in legal and definitional quibbling about whether the Gaza war qualifies. Moreover, the resolution of the International Court of Justice case may eventually disappoint: perhaps the Court will find Israeli forces have technically not committed “genocide” in a legal sense.

The Gaza war has taken a ghastly toll: at the end of February, the Gaza Health Ministry estimated more than 30,000 people have been killed, the majority of them women and children. The reliability of these kinds of estimates is fiercely disputed, but almost certainly huge numbers of civilians have died. The war has also caused unspeakable suffering to innumerable civilians in Gaza. Whether or not the Israeli campaign is “genocide,” it is certainly unjust and deeply tragic. This is the crucial point for peace activists.

The recent Court judgment is an encouraging sign but should not distract from other efforts to stop the Gaza war. Above all, it should not distract from efforts to end support for the war from Israel’s most important ally, the United States.   


Disclaimer: The views presented in the Rehumanize Blog do not necessarily represent the views of all members, contributors, or donors. We exist to present a forum for discussion within the Consistent Life Ethic, to promote discourse and present an opportunity for peer review and dialogue.

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