The International Court of Justice on Friday issued a stunning initial ruling in South Africa’s legal challenge to Israel’s devastating U.S.-backed military offensive in Gaza — acknowledging that there is a plausible risk of Israel committing genocide there and issuing six orders for a change in Israel’s conduct as it combats the Gaza-based Palestinian militant group Hamas.
The decision by the chief legal organ of the United Nations to sustain the case represents a major escalation in international pressure for a change in course by Israeli Prime Minister Benjamin Netanyahu and his chief foreign backer, President Joe Biden. Israel hoped to convince judges to dismiss the case, arguing they lacked jurisdiction and genocide accusations were belied by Israel’s approval of limited humanitarian aid for Gaza. The White House called South Africa’s accusation “unfounded.”
South Africa’s lawyers said the Israeli operation showed a “pattern of genocidal conduct,” citing the killings of thousands of civilians, the destruction of tens of thousands of homes, the displacement of nearly 2 million Gazans and Israel officials’ repeated threats against the Palestinian enclave.
They based their case on two primary reasons for an international intervention: that Israeli actions, including blocking aid, could cause irreparable damage to Palestinians; and that Israel is not preventing incitement to genocide.
Friday’s ruling showed the judges found at least part of South Africa’s claim of a possible or already ongoing genocide plausible.
The court ordered Israel to abide by six measures. A significant majority of the 17 judges supported imposing each measure, including in two instances Israel’s ad-hoc representative on the court, Aharon Barak.
The court directed Israel to take steps to prevent acts of genocide, to prevent its military from committing such acts, and to take measures to prevent the incitement of genocide in Gaza. Additionally, it ordered Israel to launch “immediate and effective measures” to boost humanitarian aid for Gaza, protect evidence of possible international law violations and give the court a report on its compliance with the orders within one month.
Presiding Judge Joan Donoghue acknowledged “a real and imminent risk that irreparable prejudice will be caused” to the rights of Palestinians in Gaza and underscored the court’s view that an urgent change in policy is needed because “irreparable harm” could ensue otherwise.
“The court is accurately aware of the human tragedy unfolding in the region,” Donoghue said, also acknowledging Israeli hostages held by Hamas and saying the court wants to see their “immediate, unconditional release.”
The court will likely take years to reach a final ruling on the charges, given the high degree of proof required including serious evidence of intent.
Still, their decision not to dismiss the case will keep alive the question of whether the policy represents genocide, the most serious charge a government can face and one that is particularly jarring for Israel, a Jewish state founded in the shadow of the Holocaust and deeply invested in accountability for that genocide.
“South Africa has really won and Israel is associated with genocide as a matter of law,” said Ahmed Abofoul, an international lawyer and advocacy officer for the Palestinian human rights group Al-Haq, before the court’s ruling.
Israel clearly took the South African gambit seriously. Unlike in a 2004 ICJ proceeding over Israel’s “separation wall” in the occupied West Bank, Israel participated in the hearings this month. Netanyahu met with legal advisors on Thursday and Israel declassified government documents to suggest to the judges its government internally prioritized aid for Gaza and dismissed public statements by far-right ministers.
Abofoul noted that the court’s decision has big ramifications for other states, chiefly the U.S., by activating their obligation to stop genocide from occurring under international and domestic laws.
A former senior Israeli government official told HuffPost Israel was likely to try to smear the court and continue on its current path in Gaza.
Netanyahu “will leverage [the ruling] to claim that ‘the world is a hypocrite, anti-Semitic and totally untrustworthy,’” said the former Israeli official, who requested anonymity given the sensitivity of the issue. Israel “will try to send a message of ‘business as usual’ in terms of continuing the war,” they continued, saying they felt the country was unlikely to tolerate even a “lukewarm” decision seeking only greater humanitarian aid for Gaza.
Adil Haque, a Rutgers University professor, said earlier that there’s little chance Israel will immediately abide by the court’s ruling.
“The court’s orders are legally binding, and it could punish noncompliance in a future proceeding,” Haque told HuffPost. “But if Israel stops engaging with the court then only the U.N. Security Council can impose sanctions (an arms embargo, trade restrictions, etc).”
If the Security Council does take up the matter, that would pose an added headache for the U.S., a permanent member of the body that can veto its actions and has often done so on behalf of Israel. U.S. attempts to shield Israel’s Gaza policy at the Council have drawn international scorn as most global governments rally around calls for a ceasefire in the war that began following a Hamas attack on Oct. 7, and America’s weakened influence in the international community has hurt attempts to build agreement on matters like supporting Ukraine against Russia, HuffPost has found.
The U.S. has also tried to stymie another attempt to investigate whether international law has been broken by any parties in the Israel-Hamas war, by seeking to deter Switzerland from accepting a Palestinian request for a global conference on violations of the Geneva Conventions, widely agreed-upon standards for warfare to which Israel and the U.S. are parties, HuffPost revealed last month.
This is a developing story. Please check back for updates.
