The International Court of Justice has found it is “plausible” that Israel has committed acts that violate the Genocide Convention. In a provisional order delivered by President Joan Donoghue, the court said Israel must ensure “with immediate effect” that its forces not commit any of the acts prohibited by the convention.
Donoghue said the court cannot now make a final determination on whether Israel is guilty of genocide. But she said given the deteriorating situation in Gaza the court has jurisdiction to order measures to protect Gaza’s population from further risk of genocide.
Donoghue outlined the provisional measures and how each judge voted. The court voted 15 votes to two on the order that Israel must take all measures in its power to stop anything in relation to genocide in Gaza. By 16 votes to 1, the court voted that Israel needs to take all measures within its powers to prevent and punish those involved with inciting genocide against Palestinians in the Gaza Strip.
Also by a vote of 16 to 1, the court said that Israel must take “immediate and effective” measures to ensure the provision of urgently needed humanitarian aid and basic services.
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The court also ordered Israel to take effective measures to prevent destruction and ensure preservation of any evidence related to the charge of genocide. The court gave Israel 30 days to report back on measures taken.
In a video released by his office after the ruling, Israeli Prime Minister Benjamin Netanyahu said, “Like every country, Israel has an inherent right to defend itself. The vile attempt to deny Israel this fundamental right is blatant discrimination against the Jewish state, and it was justly rejected… We will continue to do what is necessary to defend our country and defend our people.”
Before delivering the ruling, Donoghue read statements from Israeli officials which she said made South Africa’s case plausible. She also gave a bleak assessment of the deteriorating humanitarian situation in Gaza.
The Palestinian Authority foreign ministry issued a statement welcoming the ruling, thanking South Africa and saying, “The ICJ judges assessed the facts and the law. They ruled in favor of humanity and international law… No state is above the law.”
South Africa brought the genocide complaint to the International Court of Justice in The Hague in December. During two days of hearings from both sides this month, South Africa asked the court to issue provisional measures which would require Israel to immediately halt its assault on Gaza.
Today’s provisional order from the ICJ is not a verdict on South Africa’s allegation of genocide — that judgment is not expected for years. Israel strongly denies the accusation of genocide and has called it “baseless.”
Although the court’s ruling is legally binding, it is not enforceable. In comments made after the ICJ held two days of hearings on South Africa’s allegations, Israel’s prime minister, Benjamin Netanyahu, said in a speech, “No one will stop us, not The Hague.”
However, this order may put pressure on Israel’s allies and military backers — including the U.S., which had previously described South Africa’s case as “meritless.”
This is only the second time a state has tried to litigate a charge of genocide against another. In 2019, The Gambia took Myanmar to the ICJ, accusing it of a genocide against the Rohingya. In that case, the court approved emergency measures to protect Myanmar’s Muslim Rohingya minority, which Myanmar ignored.
South Africa’s charge against Israel
Two weeks ago, in nearly three hours of testimony, lawyers and experts on behalf of South Africa presented evidence arguing that Israel’s bombardment of the Gaza strip — which has now continued for more than 100 days — has now gone beyond a war on Hamas and become a war on all 2 million Palestinians besieged in the Gaza strip.
Israel’s bombardment of the Gaza strip has so far killed more than 26,000 people — approximately 1% of the prewar population — according to the Gaza Health Ministry. Israel’s offensive is in response to the Oct. 7 Hamas attack on Israel, in which 1,200 people were killed and more than 240 taken hostage, according to Israeli officials.
“This killing is nothing short of destruction of Palestinian life,” South African lawyer Adila Hassim told the court.
Hassim presented a list of “genocidal acts” that she accused Israel of perpetrating against Palestinians in Gaza. This included what she called the “mass” and indiscriminate killing of Palestinian civilians, food blockades and the wholesale destruction of Gaza’s healthcare system and infrastructure.
Hassim said the Israeli military dropped 2,000-pound bombs onto areas declared safe by Israel, including refugee camps.
As a result, she said, more than 1,800 families in Gaza have lost multiple family members, and 85% of all Palestinians in Gaza have been forced to flee their homes.
“It is inflicted deliberately. No one is spared. Not even newborn babies. The scale of Palestinian child killings in Gaza is such that U.N. chiefs have described it as a ‘graveyard for children,'” Hassim said.
“Entire multi-generational families will be obliterated,” Blinne Ní Ghrálaigh, an Irish lawyer who is supporting South Africa’s legal team, told the court. She warned that yet more children would be orphaned by what she called “Israel’s genocidal assault on the Palestinian population in Gaza.”
She said that Israel’s actions in Gaza had led to the need for a new acronym, “WCNSF – Wounded Child No Surviving Family.”
Hassim told the court that “genocides are never declared in advance,” but that Israel’s actions over the past three months showed a “systematic pattern of conduct” that she argued was enough proof of genocidal intent.
The South African legal team also argued that genocidal intent is shown not only in the way in which Israel has conducted its campaign in Gaza, but also in comments made by Israeli officials and leaders, including Prime Minister Benjamin Netanyahu.
Another lawyer in the South Africa delegation, Tembeka Ngcukaitobi, pointed to a comment from Israeli Prime Minister Benjamin Netanyahu from late October, when he urged Israeli soldiers to “remember what Amalek has done to you.” Ngcukaitobi said that this was a reference to a biblical command calling for the destruction of an entire group.
“The destruction of Palestinian life is articulated state policy,” Ngcukaitobi added.
Israel’s defense
Israel in turn accused South Africa of presenting a “profound distorted” view of hostilities, arguing that it was “barely distinguishable” from that of Hamas.
Israel presented its defense at the ICJ a day after the court heard South Africa’s case. In Israel’s opening arguments, lawyer Tal Becker said that Hamas was to blame — directly or indirectly — for Palestinian civilian deaths.
Becker called South Africa’s application to the court to issue a provisional measure ordering a cease-fire an “unconscionable request” that “seeks to thwart Israel’s inherent right to defend itself.”
The Israeli presentation acknowledged the suffering of civilians in Gaza but insisted it had no genocidal intent. The high civilian death toll, Israel argued, was the consequence of Hamas waging war among non-combatants.
Becker told the court that it was “impossible to understand the armed conflict in Gaza without appreciating the nature of the threat that Israel is facing.”
“If there have been acts that may be characterized as genocidal, then they have been perpetrated against Israel,” he said, referring to the stated goal of Hamas to destroy the Jewish state.
