Less than a month ago, South Africa accused Israel of violating the Convention on the Prevention and Punishment of the Crime of Genocide. Israel, which argues that it’s been appropriately responding to Hamas’ Oct. 7 attack, asked the International Court of Justice to throw out the case. The ICJ issued a ruling Friday that won’t satisfy those on either side of the legal dispute but will heighten the scrutiny of Israel’s claims that it’s making efforts to prevent civilian deaths.
The ICJ issued a ruling Friday that won’t satisfy those on either side of the legal dispute but will heighten the scrutiny of Israel’s claims that it’s making efforts to prevent civilian deaths.
South Africa wanted the court to order an immediate cease-fire in Israel’s nearly four-month campaign against Hamas that has killed an estimated 26,000 Palestinians in the Gaza Strip, according to the Palestinian Health Ministry. Israel wanted the court to throw out the case for lack of jurisdiction. The ICJ did neither. Instead, it called on Israel to take measures to prevent its forces from committing acts of genocide against Palestinians. The court also compelled Israel to allow more aid to flow into Gaza, punish anyone who is inciting genocidal acts and submit a report to the World Court on its efforts in a month.
The ICJ, which is rarely in the news, is made up of 15 judges from around the world, each elected for a nine-year term. An ad-hoc judge from each country in a dispute joins those 15 in hearing the case. Unlike the International Criminal Court, which was founded in 1999 and whose jurisdiction several notable countries refuse to accept, all members of the United Nations are subject to ICJ rulings. The ICJ focuses only on disputes between member states, particularly disputes alleging violations of international treaties. While it can take years to issue its final ruling, the court can issue provisional orders, essentially injunctions, in the meantime.
The application South Africa filed with the ICJ stated that the Israeli government “has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide” and “is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza.” Accordingly, it asked the court to issue provisional orders for Israel to “cease killing and causing serious mental and bodily harm to Palestinian people in Gaza … to prevent and punish direct and public incitement to genocide, and to rescind related policies and practices, including regarding the restriction on aid and the issuing of evacuation directives.”
South Africa’s argument focused on the tremendous loss of life in Gaza, the inability of humanitarian aid to reach civilians and the numerous inciting statements Israeli politicians have made that dehumanize Palestinians and suggest an ethnic cleansing is underway. The Israeli government has denied that its military offensive against Hamas constitutes genocide, arguing that it has done everything possible to protect civilians. It has also said that it is acting in self-defense as allowed under international law following the Oct. 7 attacks in which Hamas militants killed over 1,000 Israelis. Israel provided declassified documents to the court that it said showed its war Cabinet and military leadership had acted to prevent civilian casualties and allow aid to be delivered.
After hearing arguments from both sides, ICJ President Joan Donoghue, an American who previously served as a senior legal adviser to the State Department, issued the court’s provisional ruling from the bench Friday. Unlike her former colleagues in the State Department who have called South Africa’s case “meritless,” Donoghue’s court found that the allegations “appear to be capable of falling within the provisions of” the Genocide Convention and refused to dismiss the case as Israel had petitioned.
While the ruling likely disappoints some who’d hoped for a full-throated validation of South Africa’s claims, it’s nothing to sneeze at.
It’s worth noting that all six measures from the ICJ were approved with at least 15 votes. Israel’s ad-hoc judge voted against them all except the provision on enabling humanitarian aid and punishing public incitement to commit genocide. And while the ruling isn't binding on Hamas, as a nonstate actor, the court did call for the release of all hostages in its decision.
While the ruling likely disappoints some who’d hoped for a full-throated validation of South Africa’s claims, it’s nothing to sneeze at. A call from the ICJ for a cease-fire would very likely have been ignored. “No one will stop us, not The Hague, not the axis of evil and not anyone else,” Prime Minister Benjamin Netanyahu said this month, as he rejected the notion that Israel would halt its offensive. The far-right minister of security, Itamar Ben-Gvir, said in a statement that Friday’s decision “proves what was known in advance: this court does not seek justice, but rather the persecution of the Jewish people.” (He also posted “Hague Schmague” on X.)
The ICJ has no power to enforce its rulings — that job falls to the U.N. Security Council. But the five permanent members — the U.S., U.K., France, Russia and China — have veto power over any substantive issue. When the court demanded that Russia halt its invasion of Ukraine in 2022, for example, there was no chance Moscow would allow any resolution seeking to enforce that ruling to pass. It is similarly unlikely that the U.S., which has long used its veto to safeguard Israel, would have thrown its weight behind a hypothetical cease-fire ordered by the ICJ.
As for those hoping that there’d have been a swift ruling on the merits of whether Israel is committing genocide, well, that was never going to happen. Bosnia and Herzegovina v. Yugoslavia was filed in 1993 during the Balkans War. It wasn’t until 2007 that a final ruling came down, finding that while Serbia was not responsible for the genocide at Sbrenica, it did not do enough to prevent it or punish its perpetrators. Yugoslavia was no longer even a country at that point, having reconstituted as Serbia and Montenegro, which itself has split into two countries since.
But the amount of effort Israel has put into its defense at the ICJ betrays how much the country cares about the outcome of the case. For all its bluster, Netanyahu’s government would still much rather be seen as taking South Africa’s accusations seriously and defending their war as a just one. It follows that Israel’s lawyers will likely comply with the ruling as far as providing an update in a month on their efforts to prevent a genocide of the Palestinians. The biggest question though is whether we’ll actually see a corresponding drop in civilian casualties that meets the ICJ’s standards to abide by the Genocide Convention.