Experts react: What the International Court of Justice said (and didn’t say) in the genocide case against Israel
On Friday the world’s eyes were on The Hague, as the International Court of Justice (ICJ) issued its ruling on provisional measures in the case South Africa brought against Israel for violations of the Genocide Convention. The court granted some of the orders South Africa requested against Israel, but most notably declined to order Israel to immediately suspend its military operations in Gaza. Instead, the majority of the seventeen judges ruled that Israel should take steps to limit harm to Palestinians, preserve evidence, and submit a report within a month on all measures taken in response to the court’s order. The court also rejected Israel’s request to throw the case out, meaning it may continue for years. Below, Atlantic Council experts share their insights on what this decision means and what to look for next.
Click to jump to an expert analysis:
Celeste Kmiotek: The ICJ puts the countries supporting Israel on notice
Tuqa Nusairat: The ruling shows how isolated the US is in its support of Israel
Shalom Lipner: The ruling is unlikely to change Israel’s warfighting or narrative
Elise Baker: Israel’s continued failure to ease the humanitarian crisis in Gaza risks genocide
Lisandra Novo: The ICJ’s order to preserve evidence could impact war crimes cases elsewhere
Alexander Tripp: South Africa is putting its ideals on the world stage
The ICJ puts the countries supporting Israel on notice
While today’s decision did not—and was not intended to—answer the question of whether Israel is committing 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.” Further, “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 allows the case to proceed to a decision on the merits. It also puts other states—namely, those offering support to Israel—on notice.
The provisional measures “have binding effect and thus create international legal obligations for any party to whom the provisional measures are addressed,” which in this case is exclusively the state of Israel. However, the measures are based on existing obligations under the Genocide Convention—which mandates punishment for not only acts of genocide but also complicity, and requires the prevention of genocide. South African Minister of International Relations and Cooperation Naledi Pandor stated that should the ICJ find there to have been genocide, the states that have aided and abetted it would be considered a party to the commission of the crime under the Convention.
Human rights organizations have already launched domestic legal proceedings against US officials and UK officials over aid to Israel. While legally distinct from the ICJ case, they are rooted in the same law. The former is based on the Genocide Convention as implemented in US law, and the latter is based on the Strategic Licensing Criteria, which prohibits the export of weapons “where there is a clear risk they might be used in violations of international law.” Should the ICJ determine that Israel is committing genocide, the states that have aided Israel could also face cases before the ICJ.
—Celeste Kmiotek is a staff lawyer for the Strategic Litigation Project at the Atlantic Council.
A blow to the argument that death and destruction are sufficient to establish genocide
Today’s ICJ decision can be summarized with this sentence: The court does not have the evidence to decide whether or not Israel has committed genocide in Gaza, but directs Israel to comply with its obligations under the Genocide Convention—to which Israel, as a party to the Genocide Convention since 1950, has long committed itself.
Today’s decision goes only to “provisional measures,” a technical term that recognizes the ICJ’s proceedings usually take years but that gives the court the ability to issue orders in clear-cut cases. As Israel’s defense showed, South Africa’s claims are certainly not clear-cut, especially given Israel’s right to defend itself after Hamas’s October 7 attack on Israel. The court did not try to order Israel to end the war in a way that would leave Hamas in power in Gaza.
Today’s decision is an important blow to the argument advanced by Israel’s critics that death and destruction in Gaza are sufficient to establish a violation of the Genocide Convention. This misunderstands the Convention, which requires the intent to destroy a national, ethnical, racial, or religious group, as such, in whole or in substantial part. By taking this case seriously, Israel presented evidence that its intent was focused on defeating Hamas, which had attacked it on October 7. South Africa will now have to establish an intent to destroy Palestinians in Gaza in whole or in substantial part—not by inference alone, but by proof of actual intent. Though it will take years for the court to render a decision on the merits, South Africa is likely to fail in this.
Two other points of note in today’s order. First, the court makes clear that Israel’s leaders have the responsibility to speak with authority and an understanding of Israel’s international legal obligations. Inflammatory statements only give ammunition to Israel’s adversaries. Second, the requirement that Israel report within one month on the measures taken to comply with the Genocide Convention is an opportunity, not a sanction, to provide more evidence—such as recently declassified cabinet minutes—explaining the intent behind Israel’s war to remove Hamas from power in Gaza.
—Thomas S. Warrick is the director of the Future of DHS project at the Scowcroft Center for Strategy and Security’s Forward Defense practice and a nonresident senior fellow and the Scowcroft Middle East Security Initiative at the Atlantic Council.
The ruling shows how isolated the US is in its support of Israel
The ICJ ruling is a significant step in the direction of reestablishing the credibility of international institutions and the application of international humanitarian law. Multiple earlier efforts to hold Israel accountable for crimes committed against the Palestinian people have been thwarted by its allies in the West, much to the dismay of many in the international community. Beyond the legal implications, the geopolitical implications of South Africa bringing the case to the world court are significant.
In undertaking the effort to put on public display the extent of damage caused by Israel’s offensive against Gaza, South Africa is leading the Global South in rejecting the notion that international law has selective applicability. The case also rejects the idea that Western leaders can continue to derail efforts to bring about an end to the current suffering of innocent civilians in Gaza and address the Israeli-Palestinian conflict more broadly in venues such as the United Nations Security Council (UNSC). South Africa succeeded in bringing the world’s attention to the utter destruction Israel is inflicting on Gaza, forcing Israel to stand trial for crimes much of the world has been witnessing over the past 110 days.
The court’s initial decision puts to rest the Biden administration claim that the case is “meritless,” and should force the United States to come to terms with the fact that its support for Israel is not only rejected by much of the international community, but it is now subject to possibly defending itself against accusations of supporting a possible genocide in Gaza. The fifteen-to-two vote by the court on almost all the provisions speaks to how united much of the world is in its view of how Israel has conducted its military operations in Gaza. That should make everyone in the US government, which has been overwhelmingly uncritical in its support of Israel’s operations, take seriously any further diplomatic, economic, and military support it intends to provide as Israel continues its onslaught on Gaza.
The court stopping short of calling for a cessation of hostilities may be more important because it keeps the focus on the urgency of preventing genocidal acts pending further investigation, rather than call for a cease-fire that is unenforceable, in no small part due to US veto power at the UNSC. Indeed, the only power capable of using its significant political leverage to prevent Israel from further implicating itself in the crime of genocide is the United States.
—Tuqa Nusairat is an expert on US policy in the Middle East and the director for strategy, operations, and finance at Atlantic Council’s Rafik Hariri Center & Middle East Programs.
The ruling is unlikely to change Israel’s warfighting or narrative
It’s fair to assume that Israel’s government breathed a sigh of relative relief after reviewing the operational sections of the ICJ’s interim ruling on Friday. Notwithstanding the court’s determination that provisional measures are warranted—in order to prevent “irreparable harm” from occurring while the justices deliberate further on the merits of South Africa’s case against Israel—the practical implications of its decision are unlikely to compel any drastic reconfiguration of Israel’s war deployment or narrative.
The Israel Defense 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” per se and 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. Most critically from Israel’s perspective, the ICJ refrained from issuing any call for an immediate cease-fire.
Meeting the court’s standard for action to “prevent and punish the direct and public incitement to commit genocide” may prove more difficult for Israel, against the backdrop of the October 7 atrocities, in which 1,200 Israelis were murdered and which have elicited the harshest possible characterizations of the perpetrators and their enablers. In this respect, Israel’s leadership would be well-advised to avoid recourse to unhelpful, incendiary rhetoric and to concentrate instead on the security tasks at hand—an approach that could only ameliorate their country’s standing before the court and the international community.
—Shalom Lipner is a nonresident senior fellow at the Scowcroft Middle East Security Initiative of the Atlantic Council’s Middle East Programs.
Israel’s continued failure to ease the humanitarian crisis in Gaza risks genocide
Today, the ICJ ordered that Israel must do everything within its power to prevent genocidal acts against Gazans. Such acts include, among others, deliberately inflicting conditions of life calculated to bring about Gazans’ physical destruction, carried out with the intent to destroy the Gazan people. To further mitigate the risk of genocide, the court also ordered Israel to immediately and effectively enable the provision of humanitarian aid and basic services to Gaza.
The ICJ’s order is legally binding on Israel, as are the Genocide Convention and Geneva Conventions. Accordingly, there is no doubt that Israel must take concrete actions to ease what the court found to be a “catastrophic humanitarian situation” and restore conditions that can support life in Gaza, not risk its destruction. Specifically, Israel must allow food, water, medical aid, fuel, and other humanitarian essentials into Gaza, without delay or arbitrary restrictions on quantities or types of aid. Israel must cease telecommunications blackouts to ensure aid can be delivered to and distributed across Gaza. Israel must stop denying humanitarian aid distribution within Gaza. Israel must limit its military operations in Gaza to ensure that humanitarian aid can be delivered to and distributed across all of Gaza. Israel must not attack civilians waiting for humanitarian aid.
Failure by Israel to take these steps places Gazans at further risk of genocide.
—Elise Baker is a senior staff lawyer for the Strategic Litigation Project.
The ICJ’s decision pushes talk about ‘genocide’ from the rhetorical to the factual and legal
Today, the world’s top court ruled that South Africa’s claim that Israel is committing genocide in Gaza is indeed plausible. Noting the “catastrophic humanitarian situation” in the Gaza Strip, the Court also found “urgency” and “real imminent risk” that irreparable damage will be done to Palestinians before the case concludes. On this basis, the court found it necessary to order a series of provisional—or “emergency”—measures to protect the population based on South Africa’s pleadings. Those include ordering Israel to refrain from committing acts under Article II of the Genocide Convention, to prevent and punish incitement to genocide, to allow humanitarian assistance, to prevent destruction and preserve evidence of crimes, and to report back to the court in a month on the implementation of these measures. However, the order stops short of calling for a cease-fire.
So what happens next? Procedurally, the court may hear challenges from Israel on jurisdiction to hear the merits, before any consideration of the merits themselves, which will take years. Politically, the weight of the ruling is in the reception by Israel and its backers in its military operations. Some observers note that implementing these provisional measures is impossible without cessation of kinetic activity—and that the court has thereby essentially ordered a cease-fire without explicitly calling for one. Others take a different view. What is clear is that with Prime Minister Benjamin Netanyahu saying Israel will continue the war until “absolute victory,” the hope will lie with third states to recognize the gravity of the ICJ order and to urge compliance. The US government may use the explicit lack of a cease-fire order as political cover, and claim that it has abided by what the provisional measures order throughout the conflict by undertaking efforts to ensure humanitarian assistance reaches Gazans. Concerned governments and advocates should push back on any such cynical framing. While the early days of the conflict saw the use of the word “genocide” as a rhetorical device, the court’s order—while not addressing the merits at this stage—firmly pushes the debate from the rhetorical to the factual and legal.
Adding to the weight of the decision is that it was delivered from an impartial bench. ICJ judges are independent and do not officially work under orders from their home governments. However, going into the hearing, members of the broader public speculated that Donoghue’s past service as a legal advisor in the US State Department would compromise the court’s ability to rule objectively. The final breakdown of judges’ nationality in favor of provisional measures reveals this to not be the case. Most provisional measures were ordered by a fifteen-to-two split, with both Donoghue and Judge Georg Nolte of Germany in favor, despite the official policies of their home governments taking a different view. Tellingly, even the ad hoc judge appointed by Israel, Aharon Barak, voted in favor of the provisional measures to order Israel to prevent and punish incitement to genocide and for the provision of humanitarian assistance. In fact, the only dissenting judge on all provisional measures was Judge Julia Sebutinde from Uganda, whose government was quick to distance themselves from her rulings.
—Gissou Nia is the director of the Strategic Litigation Project at the Atlantic Council.
The ICJ’s order to preserve evidence could impact war crimes cases elsewhere
In its provisional measures decision today, the ICJ ordered Israel to “take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of” genocidal acts against Palestinians in the Gaza Strip. This is to ensure that relevant evidence will not be destroyed or lost before the merits phase of the case, which could be years away. This relates to acts such as killings, serious bodily or mental harm, conditions of life calculated to destroy the group in whole or in part, measures to prevent births and conspiracy, incitement, attempt, and complicity in committing genocide, among others.
The ICJ is not a criminal court and, as such, it will not find anyone “guilty” of genocide. The court can only assess whether Israel is responsible for violating specific provisions under the Genocide Convention. However, the same evidence that is relevant for that assessment, which Israel now has a binding legal obligation to preserve, would also be relevant before other courts. South Africa, along with other like-minded states, has already referred the situation to the International Criminal Court, which can find individuals criminally responsible so long as it has jurisdiction. Many countries around the world also have extraterritorial jurisdiction over genocide and can initiate cases domestically. Lastly, it is worth noting that the ICJ only has jurisdiction over states, not over acts committed by Hamas and other Palestinian groups. It thus could not have issued orders to preserve evidence related to crimes that may have been committed by these groups in this case. Nor does the ICJ have the power to issue an order relating to evidence of war crimes or crimes against humanity. To ensure future accountability, Israel should seek to preserve evidence relating to all atrocity crimes in this conflict.
—Lisandra Novo is a staff lawyer for the Strategic Litigation Project at the Atlantic Council and was previously a judicial fellow at the ICJ.
South Africa is putting its ideals on the world stage
Legal analysis aside, one of the key aspects of this case is who actually brought it up. An African nation pursuing a case of global importance before the ICJ is itself notable.
South Africa, with the historical backdrop of apartheid, has long supported the Palestinian cause. The country’s long-standing support, and its cultural and historical identification with the Palestinian people, should serve as a counter to anyone who might claim that South Africa only undertook this process for publicity or a desire on the part of the ruling African National Congress (ANC) to look good before the elections later this year. South Africans have taken pride in the fact they are prosecuting this case at the highest level, with South African lawyers welcomed home with patriotic flag waving.
It’s clear that South Africa’s motivation to bring this case before the ICJ comes from a genuine sense of identification and purpose.
In addition, while this case obviously matters most and has the largest implications for those in the Levant, do not overlook the implications for Africa. What is clear from this case, regardless of the result, is that an African nation was willing to put the resources behind advocating its positions and ideals on the world stage toward resolving a global issue—and the world has been forced to pay attention to that view. At the very least, this shows that African nations can engage with and lead on world issues with confidence.
As South Africa’s President Cyril Ramaphosa said today: “Some have told us we should mind our own business and not get involved in the affairs of other countries, and yet it is very much our place as the people who know too well the pain of dispossession, discrimination, state-sponsored violence.”
As African nations continue their economic rise, do not be surprised to see more of them involving themselves and advocating for their beliefs at the highest levels of international politics.
—Alexander Tripp is the assistant director for the Atlantic Council’s Africa Center.
The ICJ embraces another case brought by a state not directly affected by violations
Today’s binding provisional measures order is highly consequential, marking a significant step by the ICJ to mitigate the increasingly urgent and untenable situation in Gaza. It is the latest in a long history of the court weighing in on the situation of Palestine, dating to its inception. Notably, the court affirmed, at least preliminarily, South Africa’s erga omnes partes standing—the ability to bring the case as a fellow party to the Genocide Convention, despite not being directly affected by the allegations—even though Israel didn’t even challenge it. The court appears to be embracing its increasingly prominent role as arbiter for grave international law violations of common interest to us all.
At the same time, it is important not to overstate the order’s import. Any provisional measures request requires an assessment of three criteria: prima facie jurisdiction, plausibility, and risk of irreparable prejudice. Here, the court found (1) prima facie jurisdiction—i.e., at least a possible basis to rule on the merits—because Israel’s alleged genocidal acts and omissions are “capable of falling” under the Genocide Convention; (2) the plausibility of at least some of the asserted rights, including the right of Palestinians in Gaza as a protected group; and (3) a real, imminent risk of irreparable prejudice to these rights, as evidenced by United Nations (UN) reporting on the humanitarian catastrophe. But none of these findings can prejudge the court’s future judgment on jurisdiction and the merits. The court will be obligated to adjudicate the case anew once the full case is presented, and this will take years.
The court has acted now in the face of an emergency, and only regarding the limited scope of the proceedings before it: a case against Israel alone, under the Genocide Convention alone. In parallel, a panoply of complementary justice avenues will no doubt unfold, recognizing the other bodies of international law that apply—including international humanitarian law and international human rights law—and the urgent need for more comprehensive accountability.
—Alyssa T. Yamamoto is the senior legal and policy advisor at the Strategic Litigation Project at the Atlantic Council.
It didn’t call for a cease-fire, but the ICJ did rule that Israel must drastically curtail its operations
Even as the ICJ ordered Israel to comply with a range of measures, many of the headlines have focused on what the court didn’t do, namely order a cease-fire. This shouldn’t be read as a rejection by the court of the idea that hostilities need to cease, or at a minimum change in manner and character.
In finding that there is a risk of irreparable prejudice and urgency to the rights of Palestinians in Gaza and South Africa’s own rights under the Genocide Convention, the court recalls a series of dire statements from UN actors on the situation in Gaza, including the UN secretary-general’s letter to the UNSC on the continuation of “devastating levels of death and destruction.” Based on the facts, the court then states 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.”
This recitation of facts is 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. So, the focus should not be on what the court didn’t do, but rather on what is now going to be required to give effect to the court’s orders.
—Akila Radhakrishnan is the strategic legal advisor for gender justice for the Atlantic Council’s Strategic Litigation Project.
Further reading
Fri, Jan 12, 2024
Five questions and answers about South Africa’s genocide case against Israel
New Atlanticist By Lisandra Novo
A former judicial fellow at the ICJ explains what you need to know about the case and what to expect going forward.
Tue, Oct 24, 2023
The global consequences of the Israel-Hamas war are just beginning. Here’s what to watch.
The Big Story By Kirsten Fontenrose
It’s hard to predict what decisions the players will make tomorrow, but here are the early warning signs that could indicate what will come next in the Middle East and beyond.
Wed, Jan 17, 2024
Hamas hostage-taking must not go unpunished. The ICC must make a case against the terrorist group.
MENASource By Brandon Silver and Irwin Cotler
If Hamas hostage-taking is left unaddressed and its victims go without redress, international norms will be severely eroded.
Image: Judges at the International Court of Justice (ICJ) rule on emergency measures against Israel following accusations by South Africa that the Israeli military operation in Gaza is a state-led genocide, in The Hague, Netherlands, January 26, 2024. REUTERS/Piroschka van de Wouw
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