The United Nations judicial body, the International Court of Justice (ICJ), has ordered Israel to “take all measures to prevent genocide” as a result of its operations in Gaza.
But the Court pointedly did not order an immediate ceasefire.
The ICJ’s ruling was strongly worded. It included graphic details about the death and destruction that is taking place in Gaza, and it cited some of the inflammatory, hate-filled statements senior Israeli government officials have made since the start of the conflict.
And yet, because the Court is not ordering it to end all military operations in Gaza, the Israeli government considers this interim judgement to be something of a victory.
Supporters of the Palestinians also see victory here.
Canadians for Justice and Peace in the Middle East (CJPME) applauds the fact that “the ICJ found that Israel’s actions in Gaza could plausibly fall within the Genocide Convention, and ordered Israel to comply with provisional measures that would restrain its genocidal actions.”
A South African initiative
The Court took up this case late last year when South Africa filed an “application instituting proceedings against the State of Israel concerning alleged violations in the Gaza Strip of obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.”
The United Nations General Assembly adopted the Convention in 1948, largely in response to the Nazi genocide of World War II, which saw the unspeakable murder of about six million Jews, several million Roma, and many others.
The Convention came into force in 1951 after 20 UN member states had signed it. Israel was one of the first countries to sign on.
In its ruling on the South African application, the Court begins by noting the horrific event that started the current war in Gaza:
“On 7 October 2023, Hamas and other armed groups present in the Gaza Strip carried out an attack in Israel, killing more than 1,200 persons, injuring thousands and abducting some 240 people, many of whom continue to be held hostage.”
It then notes that following that attack “Israel launched a large-scale military operation in Gaza, by land, air and sea, which is causing massive civilian casualties, extensive destruction of civilian infrastructure and the displacement of the overwhelming majority of the population in Gaza.”
There you have it, in a nutshell.
Israel would have the world focus only on the first statement. South Africa, and now the ICJ, believe the second is also of equal, if not greater, importance.
Even a good many of those who, the day after Hamas’s brutal action, unconditionally recognized Israel’s right to defend itself, now say what Israel has chosen to do is massively disproportional.
Canada took that position on a similar ICJ case against Burma in 2020, for its violent actions against its Rohingya minority.
That action too started as a reaction to terrorist attacks by Rohingya groups. But Canada argued those attacks did not in any way justify the Burmese government’s subsequent attempt to ethnically cleanse the Rohingya, by expulsion or murder.
Indeed, Canada urged the ICJ to take a broad and inclusive approach in defining genocide in the Burma-Rohingya case.
The ICJ ruling on South Africa’s application is only a preliminary one.
The ruling gives a resounding “no” to Israel’s argument that the ICJ does not have jurisdiction in this matter, and that the case should end now. The ICJ rules, unequivocally, that it has the right and duty to consider this matter fully.
For the most part, the ruling outlines a series of steps it expects Israel to take immediately, while it undertakes a broader examination of the accusation of genocide.
To start with, the Court orders Israel to “take all measures within its power to prevent the commission of all acts causing serious bodily or mental harm” to the people of Gaza.
Such acts include: “killing members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and imposing measures intended to prevent births within the group.”
In the last order, the Court recognizes that due to the destruction of most hospitals and other medical facilities in Gaza it has become extremely difficult for pregnant Gazans to give birth safely.
Additionally, the Court orders Israel to “take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip”.
Finally, Israel must “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.”
Israeli judge supports part of the ruling
In its judgement, the Court records how many of the 17 judges voted in favour of and against each of the orders.
On the basis that the conflict in Gaza is a political matter which must be resolved by negotiation, and that Israel has not openly declared its intention to eradicate the Palestinians of Gaza – as the Nazis did with regard to the Jews – the Ugandan judge voted against all of the orders imposed on Israel.
But she was the sole judge to do so.
Fifteen of the judges, including the American judge who is the Court’s current president, Joan Donoghue, voted in favour of all the orders.
There is an Israeli judge on the panel, Aharon Barak. He voted in favour of two of the orders: the one concerning incitement to genocide and the order to assure Israel allows for the provision of basic services and humanitarian assistance in Gaza.
Among the inflammatory and genocide-inciting statements the ruling quotes are the now-notorious one from the Israeli Defence Minister Yoav Gallant, to wit: “We are fighting against human animals.”
Some might argue that Gallant was only referring to the Hamas fighters who had wantonly and proudly committed frightful atrocities on October 7, 2023, and not to the entire population of Gaza.
Another statement, by Israel’s President Isaac Herzog, is, however, utterly unambiguous:
“It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not aware, not involved. It is absolutely not true. They could have risen up. They could have fought against that evil regime which took over Gaza in a coup d’état.”
In other words, the Israeli President was, in effect, asserting that Israel was justified in killing and maiming Palestinian babies and children because those babies and children did not rise up and overthrow Hamas.
Israeli judge Barak explains his vote in favour of sanctioning such statements in this way:
“I have voted in favour in the hope that the measure will help to decrease tensions and discourage damaging rhetoric. I have noted the concerning statements by some authorities, which I am confident will be dealt with by the Israeli institutions.”
It has been many weeks since these and other inflammatory statements happened. So far, no Israeli institution has seen fit to do anything about them.
The ICJ ruling also enjoins Israel against destroying any evidence of possible genocidal behaviour and it requires Israel to submit a report to the Court “on all measures taken to give effect to” its ruling in one month.
The Court has, thus, put the Netanyahu regime in Israel on a short leash. It has, in effect, given itself the ongoing role of acting as something of a referee in this conflict.
This Saturday, January 27, is International Holocaust Remembrance Day, a day the United Nations voted, in 2005, to consecrate to honouring the many millions of victims of the Holocaust, and to committing the world to give tangible meaning to the slogan: “Never again!”
In his largely dissenting opinion, Aharon Barak pointed out that he himself is a survivor of the Holocaust.
“Genocide is a shadow over the history of the Jewish people, and it is intertwined with my own personal experience,” the Israeli judge wrote. “The idea that Israel is now accused of committing genocide is very hard for me personally, as a genocide survivor deeply aware of Israel’s commitment to the rule of law as a Jewish and democratic State.”
Many other Jews, including this writer, share Barak’s anguish and pain. But that does not lead all of us to simply dismiss South Africa’s charge out of hand.
Learning and applying the lessons of the Holocaust has to be a never-ending and continuous process, and nobody can be exempt from that exercise.
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