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The International Court of Justice on Gaza: ‘Good, but Not Good Enough’

The compromise ruling from the ICJ in the Hague could slow the violence against Gaza’s citizens, but catastrophe still looms

Israeli forces move near the Gaza Strip border in southern Israel, Thursday, 25 January 2024. Photo: Associated Press/Alamy Stock

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The ruling of the International Court of Justice against Israel is undoubtedly momentous. By overwhelming majorities, the Court has instructed the state to abide by each of the main provisions of the Genocide Convention, and to report back within a month on the measures it has taken to comply.

On any reading, for a major Western ally – whose war had been unconditionally supported by the USA, EU and UK for over three months – to be on the receiving end of such measures is a stunning rebuke to all involved. For this to happen to the Jewish state, which rightly reminds us that Jewish victimisation was a prime reason for the Convention’s creation, and barely three months after its own people suffered genocidal atrocities at the hands of Hamas, is a remarkable turnaround.

Yet the Court’s findings and the measures it imposed were thoroughly deserved. Genocidal elements were immediately evident in Israel’s response after 7 October, as I pointed out to Byline Times readers only six days later. If its threats towards the Gazan population were carried out, I wrote, it would be “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction”, at least “in part”, as the Genocide Convention puts it.

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Unfortunately, they were – and more – as tens of thousands were killed, two million repeatedly displaced, and starvation and disease encouraged to spread. It gave me no pleasure to hear this clause and others from the Convention read back to Israel in the Court’s measures.

Anyone listening to the Court’s president, the US judge Joan E. Donoghue, reading its ruling should have been impressed by the gravity of the situation that they perceived in Gaza and the authority with which they laid out the case that Israel has to address. Indeed, as she repeatedly quoted from United Nations officials on the ground as well as its secretary-general, António Guterres, it was as though authority was restored in front of our eyes not only to the Court itself but to the whole UN system too.

The outcome was also a resounding vindication of South Africa, which had become a champion of justice for Gaza’s Palestinians and, in the eyes of many, of a whole Global South that regularly suffers from Western hypocrisy.


Compromise and Incoherence

Yet despite these (all too rare) glimpses of properly functioning global institutions, the Court did not go as far as it should have for the people who, it clearly suggested, are facing genocide in Gaza. South Africa had asked that the Court instruct Israel to “immediately suspend its military operations in and against Gaza” and “take no steps in furtherance” of them.

These requests were not vindictive, still less a denial of Israel’s right to defend its population. The state evidently retained the right and the capacity to protect its citizens, even though it had failed to exercise it effectively on 7 October. What these measures demanded was that Israel cease its aggressive military campaign which, the Court evidently agreed, was directed as much against the civilian population as against Hamas.

The reason that the requested wording was essential was that Israel itself claimed, and continues to even after the verdict, that it is fighting only Hamas and other armed groups –  if civilians are suffering, it is because the enemy hides behind the civilian population.

This is nonsense because Israel permits its forces outrageously loose and disproportionate targeting, which makes it legitimate in its eyes to kill scores of civilians along with each Hamas fighter, and there are now also many cases of them directly inflicting harm with no possible military purpose. It is deceitful because Israel undoubtedly knew before it started that this type of campaign would cause the total destruction of Gaza and the massive suffering that would involve, and therefore fully intended these outcomes.

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It may be obvious to many observers that Israel’s justifications are nonsensical and deceitful, but these justifications matter. By phrasing its measures in the terminology of the Convention rather than in the military language that Israel itself adopts, the Court allows Israel to claim that since of course it upholds the Convention and has not been asked to cease its military operations, it is not obliged to do so.

Getting off this hook is even “a big win” for Israel, one of its propagandists has claimed. Keeping alive the possibility that there could still be legitimate Israeli military action in Gaza is therefore of great political significance. First, it fuels both elite and popular support inside Israel for continuing the violence. Second, it sustains the increasingly flimsy denials that Western politicians have parroted as they have backed Israel throughout months of genocidal war.

It should not have been difficult for the ICJ to insist, as Indian judge Dalveer Bhandari put it in an individual opinion, that “all fighting and hostilities come to an immediate halt”, making that an instruction in the case of Israel (it did not have direct jurisdiction over Hamas, since the organization is not a state, but Hamas had indicated that it would join a ceasefire).

In fudging this issue, the Court has not even gone as far as it did in 2022, when it requested the cessation of military operations by Russia after its invasion of Ukraine. Of course, it is said that Russia ignored that measure, as though that makes it justifiable for the Court not to issue it in the Gaza case. However, the situations are very different. Russia is a great power and has the implicit backing of China and much of the South, including (in its own version of hypocrisy) South Africa.

Israel is a small and regionally isolated state, opposed by the South and reliant almost entirely on the West, where public support is draining by the minute. Israel’s serious defence of the case in the ICJ showed how much is at stake for it. A Court ruling that directly challenged its ‘military’ rationale would clearly have made it more difficult for it to continue its destruction.

This failure of the Court reveals a serious incoherence in its position. The ruling, replete with extensive quotations from Israeli leaders showing genocidal intent and from UN officials about the harm already caused, made it perfectly clear that Israel’s actions could be regarded as genocidal. In this context, it made no sense at all to provide it with the slightest excuse for keeping any forces in Gaza. Is it really possible to believe that a state and army that have committed such huge atrocities can be trusted to pivot overnight towards fully legitimate, proportionate warfare, scrupulously respecting civilian rights? That would certainly be a world first.

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The gravity of the failure appears even starker since the Court rightly insisted (although again eschewing more specific requests by South Africa) that Israel “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip”. Is it really possible to believe that a state that has deliberately obstructed humanitarian efforts to the point of causing mass starvation will suddenly facilitate them? It is obvious that, for the best possible humanitarian operation to be mounted, Israeli forces must completely leave Gaza.

Looked at in this light, the Court’s ‘strong’ words look flawed. The opaqueness of the judgement will make the tasks of holding Israel to account and protecting the surviving civilians significantly more difficult than they would have been if there had been explicit instructions to cease military action and withdraw.

We do not know how the judges came to their large majority decisions, but political considerations will have figured. The Western judges came from states that have strongly supported Israel and the Russian and Chinese judges from authoritarian states which may fear receipt of further instructions against themselves, over their own genocidal actions. The judgement probably represented a compromise that enabled a large majority to agree, its limits representing political rather than legal constraints.


The Ongoing Genocide Must Now be Stopped

Despite this, the demand that Israel returns to the Court within a month to show how it has complied (South Africa had asked for a week), is a crucial redeeming feature. This threatens to put Israel in the position, unless it significantly changes its policies, of directly flouting the Court, and gives an opportunity to South Africa and other states to produce evidence in case Israel fails to comply. It could conceivably lead the Court to issue blunter, more unequivocal and specific instructions, which might even include South Africa’s original requests.

Moreover, there is quite enough substance in the ruling for supporters of Gaza’s civilians to mount challenges in other arenas. There will be new pressure on Karim Khan KC, prosecutor in the International Criminal Court, to investigate the crimes of both Israeli and Hamas leaders. Algeria has already requested an urgent meeting of the UN Security Council, where pro-Palestinian states will demand action and there will be new demands for the West to back away from Israel. With elections looming in the USA, UK and the EU, the domestic pressures on their mostly slavishly pro-Israeli governments will ratchet up too.

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Indeed, there was already growing friction for Israel’s war even before the Court’s hearing. It was increasingly recognised that its aim of eliminating Hamas was delusional, and some in Israel were calling on it to bank the degradation of the organisation’s capacity that it has achieved – even to call it a victory. It was clear that the hostages would not come home without a permanent ceasefire, and their families were putting increasing pressure on the government. Egypt had also refused to allow Israel to expel Gazans across its border, and this appeared to be where Joe Biden might finally have drawn a line.

The Court’s decision could therefore mark a turning point, at which Israel’s direct violence against Gaza’s civilians slows. However, for them, the situation remains catastrophic and is rapidly worsening. The cumulative effects of depriving people of food, water, shelter and medical care for over almost four months would cause many more to die even if Israel withdrew tomorrow. They will only become worse still as long as Israel retains any ability to interpose its troops between humanitarian workers and the population.

Israel’s success, even since the ruling, in persuading Western countries including the UK to withdraw funding from the United Nations Relief and Works Agency (UNRWA), which is critical to supplying Gaza (on the grounds that twelve, most of whom have been dismissed, out of its 13,000 staff had worked for Hamas), shows that its intention to block aid remains strong.

Indeed, Israel has already largely achieved what was probably its primary genocidal intention: to fundamentally cripple Gazan society and reduce its already vulnerable population to penury. On any honest reading of the Genocide Convention, it has already committed the crime, and when the International Court of Justice finally judges the case (probably in several years’ time), it will be astonishingly perverse if it does not confirm this.

Yet that is little comfort to the Palestinians who are dying and suffering in Gaza today. Supportive states and global civil society must now turn the Court’s present ruling into definitive pressure for Israel not only to cease its military operations in Gaza, but to withdraw completely from the territory, and for a massive international effort to be mounted to save its people.


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