The International Court of Justice ruling on Israel got it right

Contributing Columnist
Jay Michaelson
January 26, 2024

Today’s International Court of Justice ruling in South Africa v. Israel was a positive result for Israel, for international law and hopefully for Palestinians in Gaza who have been suffering appalling conditions for over three months.

At issue in the case was South Africa’s contention that Israel has committed acts of genocide against the Palestinians in Gaza, as defined by the Genocide Convention. This decision is an interim ruling, not a final one, and is akin to a temporary injunction. And while it is being lauded and condemned for ruling in part against Israel, the ICJ did not give South Africa what it wanted, which was a one-sided ceasefire order. (I say “one sided” because South Africa did not seek an order against both Israel and Hamas, and it’s not a ceasefire when one party is holding civilian hostages at gunpoint.)

Instead, the ICJ took a middle path, acknowledging that acts of genocide may plausibly have taken place, that there is a continued risk of such acts, and that Israel should (1) ensure that such acts not take place and (2) increase the flow of humanitarian aid to Gaza.

Legally speaking, this is a slap on the wrist.

True, the ICJ ruling did state that it is plausible to believe that acts of genocide have occurred and may occur in the future. But Israel has not been found guilty of genocide, and has not been ordered to withdraw from Gaza. In fact, Israel can comply with the ICJ order without changing a thing, operationally speaking. The flow of aid was already increasing, and Israel has consistently claimed that it has “lawyers in the room” to ensure compliance with the laws of war any time a strike or action is ordered.

As such, the decision pleased neither Israeli government officials nor pro-Palestine advocates. But it does align with what most international law experts have said is the proper result, because ultimately, this is a mixed, nuanced, and probably correct ruling that validates both the ICJ itself and Israel’s decision to engage with it.

An even-handed decision

Thankfully, and importantly, the ruling begins by acknowledging some of the horrors of Hamas’s Oct. 7 attack, as well as the massive suffering brought on by Israel’s method of response. This even-handedness, which might surprise pro-Israel critics of the ICJ, continues throughout the ruling, in which the court repeatedly sets forth both South Africa’s and Israel’s contentions before issuing its decisions.

The ICJ also notes at the beginning that, at this stage of the proceedings, it is not required (or able) to resolve the question of whether the Palestinian people’s rights under Convention have been violated. That will take a lot more time.

Beginning with Paragraph 41 of the ruling, the ICJ next turns to the Genocide Convention, the governing law in this case. (I analyzed the same provisions of the Genocide Convention these pages on October 20.) Importantly, the ICJ correctly noted – quoting its own holding in Bosnia v. Serbia – that terrible actions alone are not enough to constitute genocide. Rather, “the intent must be to destroy at least a substantial part of the particular group.”

That, too, is an essential point. Surely, even the most ardent supporter of Israel must agree that terrible, even unspeakable tragedies have unfolded in Gaza — and the ICJ opinion listed some of them, from 360,000 housing units destroyed to up to 25,000 people killed, massive public health catastrophes and a lack of food, water and shelter for hundreds of thousands of children. While the precise extent of death and damage won’t become clear for quite some time, the basic facts are as incontrovertible as they are appalling.

But is it genocide? That depends on whether there is “the intent to destroy in whole or in part a group as such,” and intent is established by looking at actions and statements by the accused power.

Here, in addition to recounting the scope and horrible carnage of the war, the Court also quoted several genocidal statements made by Israeli officials — not just the extremists on the rightbut President Isaac Herzog (“It is an entire nation out there that is responsible… and we’ll fight until we break their backbone.”) and Defense Minister Yoav Gallant (“I have released all restraints… We are fighting human animals” – a term that may only refer to Hamas, but is still “dehumanizing rhetoric” under international law.)

Combining the massive scale of the attacks with these and other statements, the court concluded that “at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.”

This is a far more nuanced conclusion than what one hears at most left-wing protests or right-wing rallies. Israel clearly has the right to defend itself and to respond to the horrors of Oct. 7. But can anyone really say that the people calling the shots in Israel aren’t also motivated by dreams of ethnic-cleansing, of punishing the Palestinians en masse, or, at the very least, by a negligence toward the loss of civilian life?

Probably half of the Israeli public holds these doubtsas do liberal and moderate Zionists in America. Indeed, this conclusion isn’t so different from a recent J Street statement which supported Israel but questioned the extent and methods of this war.

That conclusion is the first half of the ICJ’s decision; what to do about it is the second half.

And here, the court did not do what South Africa wanted. Yes, it called on Israel to refrain from any genocidal acts, to prevent incitement, to increase the flow of aid and to preserve any relevant evidence for the continuing proceeding. But since it is possible for a war to continue without “the real and imminent risk that irreparable prejudiced will be caused to the rights found by the Court to be plausible,” it did not order an end to military activities.

This ruling is in line with past ICJ precedent. Israel’s war is clearly one of self-defense, at least in part; it’s not like Russia’s offensive invasion of Ukraine, where the ICJ issued an order calling for an immediate ceasefire (which Russia completely ignored, of course). And yet, as in cases involving Myanmar, Serbia and elsewhere, there are strong reasons to fear that acts of genocide have occurred or may occur in the context of it. The moderate provisional order seems appropriate.

It also validates Israel’s decision to participate in the ICJ proceedings, and not ignore them as it has done occasionally in past cases (regarding the West Bank ‘Separation Barrier’ in 2003, for example).

Israel’s interpretations of the facts are now part of the court record. They support, in my view, the provisional and intentionally non-conclusive aspects of the court’s decision. And Israel’s decision is politically wise. It demonstrates that Israel, unlike Russia, is at least participating in the processes and institutions of international law. Those who wanted Israel to ignore them would have greatly harmed Israel’s standing and security.

I’m sure that many pro-Israel voices are already railing against the court’s finding that the accusations of genocide are “plausible,” just as many pro-Palestine voices are railing against the court’s decision not to order a “ceasefire” that only Israel would have to obey.

But those voices are wrong. Israel is neither the genocidal demon I see regularly depicted in far-left social media posts, nor the blameless angel I see depicted in many pro-Israel ones. Oct. 7 was a horror, Hamas’s use of sexual violence was a horror, all civilian hostages should be immediately released without conditions and an Israeli military response is justified.

And also: the suffering in Gaza is appalling, and millions of Israelis and American Jews are rightly dismayed at the ways in which this response has unfolded.

There is plausible cause for concern. And if both sides can find something wrong with today’s ICJ ruling, that’s a good sign that it’s correct.

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