The Background of the Case

In late December, South Africa initiated proceedings against Israel under the Genocide Convention. The treaty’s signatories agree to the authority of the ICJ in interpreting it. And the ICJ has allowed any signatory of the treaty, not just those who are victims of genocide, to sue another signatory who breaches the convention.

South Africa’s case against Israel will take a long time to fully settle. But under the Genocide Convention, a party can request provisional measures pending the outcome of the case. Such measures are granted only in extraordinary circumstances. While they do not require the court to find a genocide has taken place — such a decision is for later in the proceedings — they do require that claims of genocide be plausible. They also require a finding by the court that without the measures, irreparable harm to rights under the convention will take place.

During oral arguments earlier this month, South Africa laid out a powerful case that such steps were needed. Its lawyers detailed the massive loss of civilian lives and the deliberate destruction of civilian infrastructure. They described how Israel’s relentless bombardment had rendered Palestinians homeless and caused children to have their limbs amputated without anesthetic. They recounted how Israel had told Palestinians to flee or be bombed, only to shell them en route to supposed safe zones and in the safe zones themselves. They explained how hospitals had been targeted, and food, water, and medicine had been denied. Among the civilian casualties, there were medics, UN workers, and journalists, at least some of whom appeared to have been intentionally attacked.

South Africa argued that the nature of these chilling, conscious attacks on civilians implied genocidal intent. But they went further, citing the comments of high-ranking Israeli officials that showed clear-cut genocidal intent.

Israel’s legal team disputed nearly every aspect of the South Africa case. They insisted that the ICJ lacked jurisdiction to hear the case as there was no dispute between South Africa and Israel. They challenged the accuracy of the death count, while implying that those killed could have been slain by Hamas, that they could have been combatants, or if they were civilians, that Israel was justified in killing them.

But in a stunning censure of Israel, the overwhelming majority of the court, including in some cases an ad hoc judge handpicked by Israel, rejected these arguments. Today’s ruling was a decisive victory for South Africa.

Egregious Abuses

In its proposed provisional measures, South Africa included a halt to all of Israel’s military operations in Gaza — a cease-fire. Today’s ruling doesn’t deliver that. While the ICJ did not explicitly reject the call for cease-fire, it omitted its mention.

The ICJ could and should have ordered Israel to fully halt its assault on Gaza. But it must be noted that when Bosnia and Herzegovina requested a similar provisional measure against Yugoslavia in the 1990s, the ICJ similarly did not grant it. While South Africa was correct in directly raising the issue, it was highly unlikely the ICJ was going to grant it. At the same time, as South African foreign minister Pandor and UN Special Rapporteur on the Occupied Palestinian Territories Francesca Albanese pointed out, it is difficult to see how Israel could comply with an order to stop killing and injuring Palestinians in Gaza without a cease-fire.

What is astonishing is how nearly unanimous the rulings were. Like many observers, I had anticipated at least a partial schism between those judges from the Global North and those from the Global South. The court’s president, Donoghue, is a career State Department lawyer. In that role, she served as a US legal advisor during the ICJ case Nicaragua v. US, during which the ICJ found the United States had flouted international law in its efforts to overthrow the Sandinistas. In each of the ordered measures, Donoghue joined the majority.

Typically, the ICJ consists of fifteen jurists. When none of the judges are from a country party to the dispute, that country gets to appoint an ad hoc judge of their own nationality. Both South Africa and Israel named an ad hoc judge, bringing the number of jurists to seventeen. In two of the six orders, Israel’s own judge joined with the majority, leaving Ugandan jurist Julia Sebutinde as the sole dissent.

In short, Israel’s abuses were so egregious that even a career State Department apparatchik and its own handpicked judge ruled against it.

“A Massive Ruling”

Francis Boyle, the international law professor who led Bosnia and Herzegovina’s legal efforts against Yugoslavia at the ICJ, called today’s ruling “a massive, overwhelming legal victory for the Republic of South Africa against Israel on behalf of the Palestinians.” He noted that it paved the way for the UN General Assembly to suspend Israel and for the prosecution of Israeli officials.

South Africa is not the only one seeking to enforce the Genocide Convention. The US-based human rights group Center for Constitutional Rights has filed a lawsuit in US courts on behalf of two Palestinian NGOs against President Joe Biden, Secretary of State Antony Blinken, and Secretary of Defense Lloyd Austin under the Genocide Convention. Oral arguments on whether to dismiss the case, Defense for Children International–Palestine v. Biden, are scheduled for today.

The US Congress has ratified the Genocide Convention, which means under the US Constitution it is the “supreme law of the land.” The Convention prohibits not just carrying out genocide, but being complicit in genocide. It’s incredibly unlikely that a US court would issue a direct rebuke to US foreign policy on the basis of the Genocide Convention, but today’s ruling provides a boost to the case against Biden and Blinken.

Neither Israel’s genocide nor the United States’ support for its apartheid policies will be ended by the stroke of a judge’s pen. And law is not a substitute for political struggle. But today’s victory at the ICJ is a victory for Palestinian rights writ large and has the potential to help build the movement to end Israel’s assault on Gaza.