Synopsis of ICJ’s decision on Israeli genocide, reactions, and take-aways
Get a handle on the ICJ ruling, the dissenting judges, the binding nature of the decision, take-aways from several important voices, and reactions from stakeholding parties.
Summary of ICJ’s ruling
reposted from Al Jazeera
The World Court ordered Israel to take action to prevent acts of genocide as it wages war against the Hamas group in the Gaza Strip. (15-2)
(vote 15-2) The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:
(a) killing members of the group
(b) causing serious bodily or mental harm to members of the group
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
(d) imposing measures intended to prevent births within the group
(vote 15-2) The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above
(vote 16-1) The State of Israel shall 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
(vote 16-1) The State of Israel shall 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
(vote 15-2) The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip
(vote 15-2) The State of Israel shall submit a report to the Court on all measures taken to give effect to this order within one month as from the date of this Order.
The court stopped short of calling for an immediate ceasefire.
Who are the ICJ judges that voted against motions?
Julia Sebutinde – voted against all motions
In 1996, Sebutinde was appointed as one of the judges of the High Court of Uganda. In 2012, she became the first African woman to be appointed to the International Court of Justice (ICJ), also known as the world court. She has broken barriers and paved the way for countless other African women in the field of law.
Sebutinde got her undergraduate degree in Uganda, and Master’s and Doctorate of Law at the University of Edinburgh. She has contributed immensely to international law jurisprudence through the cases she has heard, often with dissenting opinions.
Regarding her voting record in this case, Ambassador and Permanent Representative of Uganda to the United Nations stated,
Justice Sebutinde ruling at the International Court of Justice does not represent the Government of Uganda’s position on the situation in Palestine. She has previously voted against Uganda’s case on DRC. Uganda’s support for the plight of the Palestinian people has been expressed through Uganda ‘s voting pattern at the United Nations.
Aharon Barak – voted against most motions
Barak is an Israeli lawyer who was appointed to the 15-judge panel of the ICJ ahead of South Africa’s case against Israel. Under the ICJ’s rules, a country that does not have a judge to represent its own on the bench can choose an ad hoc judge.
The 87-year-old is a retired judge from the Israeli Supreme Court and a recipient of the Israel Prize for Legal Studies. Barak was born in Lithuania and, studied law in Hebrew University.
He was appointed to the Israeli Supreme Court in 1978, where he went on to serve for 28 years.
The ICJ full panel is led by President Joan E. Donoghue from the US and Vice-President Kirill Gevorgian from Russia. They head a diverse bench with judges from 13 other countries including Slovakia, France, Morocco, Somalia, China, Uganda, India, Jamaica, Lebanon, Japan, Germany, Australia, and Brazil. Two ad hoc judges appointed to the panel for this case were from Israel and South Africa.
FAQ: Are decisions of the Court binding?
reposted from the ICJ website
Judgments delivered by the Court (or by one of its Chambers) in disputes between States are binding upon the parties concerned. Article 94 of the United Nations Charter provides that “[e]ach Member of the United Nations undertakes to comply with the decision of [the Court] in any case to which it is a party”.
Judgments are final and without appeal. If there is a dispute about the meaning or scope of a judgment, the only possibility is for one of the parties to make a request to the Court for an interpretation. In the event of the discovery of a fact hitherto unknown to the Court which might be a decisive factor, either party may apply for revision of the judgment.
As regards advisory opinions, it is usually for the United Nations organs and specialized agencies requesting them to give effect to them or not, by whichever means they see fit.
The ICJ ruling is a repudiation of Israel and its western backers
by Kenneth Roth, reposted from the Guardian
The international court of justice’s (ICJ) ruling in South Africa’s genocide case was a powerful repudiation of Israel’s denialism. By an overwhelming majority, the court found a “plausible” case that provisional measures were needed to avoid “irreparable prejudice” from further Israeli acts in Gaza that could jeopardize Palestinian rights under the genocide convention.
The public posture of various Israeli officials was, in essence: how dare anyone accuse us of genocide. After all, they pointed out, Israel was founded after the Holocaust to protect the Jewish people from genocide, Hamas attacked Israel on 7 October, and many of Hamas’s statements seem genocidal in intent.
Yet none of that is a defense to the charge of genocide. Regardless of Israel’s history, regardless of its claim of self-defense, the means chosen to fight Hamas can still be genocidal. The court found enough merit in that claim to recognize that Palestinian civilians need the court’s protection.
The court’s ruling was also a repudiation of Israel’s western backers. The Biden administration had called the suit “meritless”. The British government said it was “nonsense”. By a vote of 15 to 2, the ICJ judges found otherwise.
On the need to allow humanitarian aid to a starving population in Gaza and to prevent and punish the incitement of genocide, even the respected Israeli judge, Aharon Barak, joined the majority, making the vote 16 to 1 – a powerful repudiation of those who try to chalk up challenges to Israel’s conduct in Gaza as an unfair double standard or antisemitism.
The current proceedings were not about the ultimate merits of the case. It could take years to determine whether Israel has committed genocide in Gaza. But the provisional measures ordered by the court could make an enormous difference in curbing the death and suffering of Palestinian civilians now.
What now?
The key will be enforcement. The ICJ ruling is “binding”, as the court stressed, but the ICJ has no military or police force at its disposal. For coercive measures, it would need a resolution of the UN security council, which requires contending with the US government’s veto, so often deployed to protect Israel.
But the political pressure to comply with the ruling will be enormous. Having trusted the court to send its lawyers to The Hague to present its case, Israel would look horrible to reject the court just because it lost. In calling the underlying genocide charges “outrageous” – a finding that, as mentioned, the court did not yet address – the Israeli prime minister, Benjamin Netanyahu, notably did not say he would refuse to comply with the court’s provisional measures. Let’s hope he will.
Some were disappointed that the ICJ did not order a ceasefire, a step that was unlikely because the court addresses only disputes between states, so Hamas was not a party. A ceasefire imposed on only one side to an ongoing armed conflict is not plausible.
The court did order Israel to “take all measures within its power” to halt acts that contribute to genocide, to allow sufficient humanitarian aid into Gaza to end the suffering among Palestinian civilians, and to prevent and punish the public statements of incitement made by senior Israeli officials. Israel must report back to the court in a month on the steps it has taken.
Yet there is a lot of wiggle room in those orders. That’s where Israel’s supporters come in. Will they move past their earlier skepticism toward the case and now urge Israel to comply? Western governments backed the ICJ in similar rulings against Myanmar, Russia and Syria. It would do enormous damage to the “rules-based order” that Western governments claim to uphold if they were to make an exception for Israel.
Joe Biden holds the most powerful leverage. The US government provides $3.8bn in annual military aid to Israel and is its principal arms supplier. That support should stop if the Israeli government ignores the court’s ruling. The US president should no longer put his fear of domestic political consequences, or his personal identification with Israel, before the lives of so many Palestinian civilians.
Other pressure for compliance could come from the international criminal court. Unlike the ICJ, which resolves disputes between states, the ICC prosecutes individuals for such crimes as genocide, war crimes and crimes against humanity. Better behavior now is no defense for crimes already committed, but if Israel were to ignore the ICJ ruling, that would be an added spur for the ICC prosecutor, Karim Khan, to act.
Much is still unresolved, but today is a win for the rule of law. South Africa, a nation of the global south, was able to transcend power politics by invoking the world’s leading judicial institution. The court’s ruling shows that even governments with powerful friends can be held to account. That provides hope for the profoundly suffering Palestinian civilians of Gaza. It is also a small but important step toward a more lawful, rights-respecting world.
Kenneth Roth, former executive director of Human Rights Watch (1993-2022), is a visiting professor at Princeton’s School of Public and International Affairs
Nine take-aways from the ICJ ruling
by Huwaida Arraf, reposted from X
While many are disappointed that the ICJ did not explicitly order a ceasefire, the ruling was historic and a huge defeat for Israel. Here’s what we need to take away and what we need to do:
- The Court found that RSA made a plausible case that Israel is committing genocide in Gaza and October 7 is no justification for Israel’s conduct. This is huge.
- The Court found that immediate protective measures are necessary to protect the Palestinian people from irreparable harm caused by Israel’s genocidal conduct and ordered such measures.
- In order for Israel to abide by the measures, including the provision of basic services (turning on water, electricity and allowing the entry of fuel) and humanitarian aid, it would need to cease its military assault. Aid organizations have said that one of the main reasons they are unable to deliver aid, besides Israel’s restrictions on entry of aid, is Israel’s military aggression which makes it too dangerous for them to reach many areas.
- The Court has also instituted a monitoring mechanism and Israel must report on everything it’s doing to abide by the Order of the Court within a month (should have been shorter).
- ALL countries signatory to the Genocide Convention have an obligation to prevent genocide. This means that, when there is reason to believe that there is a threat of genocide, states MUST act to prevent it. All countries are now on notice that there is a plausible threat of genocide.
- This means that, continuing to supply Israel with weapons and vetoing UNSC resolutions will amount to violations of that responsibility and also a potential violation of Art III of the Convention, prohibiting complicity in genocide.
- If Israel does not comply with the ICJ Order, the matter should be brought before the UNSC. If the US vetoes, this will be an indictment of the US, but not the end.
- States must then use UNGA 377 – Uniting for Peace – to not only bring the matter before the UNGA, but to make sure that the UNGA resolution includes implementation measures (without an agreement on such measures, the resolution will be ineffective). Such measures can include international sanctions on Israel and suspending Israel’s membership in the UN.
- Alongside all of this, we must continue our work in the streets and in national courts to hold Israel and enablers accountable. This includes:
- continuing to demand that our governments sanction Israel;
- demanding Israel’s suspension from international fora such as Eurovision and international sporting arenas;
- using the principle of universal jurisdiction to prosecute Israeli war criminals in national courts, which is already being pursued.
The World Court has found that Israel may be committing genocide — the mother of all crimes. This is an indictment, not only on Israel, but on all who have been enabling Israel and using October 7, as justification.
It must also be a wakeup call to all who have been silent. There’s no excuse.
Huwaida Arraf is a Palestinian American activist and lawyer who co-founded the International Solidarity Movement, a Palestinian-led organization using non-violent protests and international pressure to support Palestinians.
ICJ lands stunning blow on Israel over Gaza genocide charge
A different Biden approach could have shaped war efforts and prevented this from happening in the first place.
by Trita Parsi, reposted from Responsible Statecraft, January 26, 2024
The International Court of Justice (ICJ) just ruled against Israel and determined that South Africa successfully argued that Israel’s conduct plausibly could constitute genocide. The Court imposes several injunctions against Israel and reminds Israel that its rulings are binding, according to international law.
In its order, the court fell short of South Africa’s request for a ceasefire, but this ruling, however, is overwhelmingly in favor of South Africa’s case and will likely increase international pressure for a ceasefire as a result.
On the question of whether Israel’s war in Gaza is genocide, that will still take more time, but today’s news will have significant political repercussions. Here are a few thoughts.
This is a devastating blow to Israel’s global standing. To put it in context, Israel has worked ferociously for the last two decades to defeat the BDS movement — Boycott, Divestment, and Sanctions — not because it will have a significant economic impact on Israel, but because of how it could delegitimize Israel internationally. However, the ruling of the ICJ that Israel is plausibly engaged in genocide is far more devastating to Israel’s legitimacy than anything BDS could have achieved.
Just as much as Israel’s political system has been increasingly — and publicly — associated with apartheid in the past few years, Israel will now be similarly associated with the charge of genocide. As a result, those countries that have supported Israel and its military campaign in Gaza, such as the U.S. under President Biden, will be associated with that charge, too.
The implications for the United States are significant. First because the court does not have the ability to implement its ruling. Instead, the matter will go to the United Nations Security Council, where the Biden administration will once again face the choice of protecting Israel politically by casting a veto, and by that, further isolate the United States, or allowing the Security Council to act and pay a domestic political cost for “not standing by Israel.”
So far, the Biden administration has refused to say if it will respect ICJ’s decision. Of course, in previous cases in front of the ICJ, such as Myanmar, Ukraine and Syria, the U.S. and Western states stressed that ICJ provisional measures are binding and must be fully implemented.
The double standards of U.S. foreign policy will hit a new low if, in this case, Biden not only argues against the ICJ, but actively acts to prevent and block the implementation of its ruling. It is perhaps not surprising that senior Biden administration officials have largely ceased using the term “rules-based order” since October 7.
It also raises questions about how Biden’s policy of bear-hugging Israel may have contributed to Israel’s conduct. Biden could have offered more measured support and pushed back hard against Israeli excesses — and by that, prevented Israel from engaging in actions that could potentially fall under the category of genocide. But he didn’t.
Instead, Biden offered unconditional support combined with zero public criticism of Israel’s conduct and only limited push-back behind the scenes. A different American approach could have shaped Israel’s war efforts in a manner that arguably would not have been preliminarily ruled by the ICJ as plausibly meeting the standards of genocide.
This shows that America undermines its own interest as well as that of its partners when it offers them blank checks and complete and unquestionable protection. The absence of checks and balances that such protection offers fuels reckless behavior all around.
As such, Biden’s unconditional support may have undermined Israel, in the final analysis.
This ruling may also boost those arguing that all states that are party to the Genocide Convention have a positive obligation to prevent genocide. The Houthis, for instance, have justified their attacks against ships heading to Israeli ports in the Red Sea, citing this positive obligation. What legal implications will the court’s ruling have as a result on the U.S. and UK’s military action against the Houthis?
The implications for Europe will also be considerable. The U.S. is rather accustomed to and comfortable with setting aside international law and ignoring international institutions. Europe is not.
International law and institutions play a much more central role in European security thinking. The decision will continue to split Europe. But the fact that some key EU states will reject the ICJ’s ruling will profoundly contradict and undermine Europe’s broader security paradigm.
One final point: The mere existence of South Africa’s application to the ICJ appears to have moderated Israel’s war conduct.* Any plans to ethnically cleanse Gaza and send its residents to third countries appear to have been somewhat paused, presumably because of how such actions would boost South Africa’s application. If so, it shows that the Court, in an era where the force of international law is increasingly questioned, has had a greater impact in terms of deterring unlawful Israeli actions than anything the Biden administration has done.
* EDITOR’S NOTE: Israel appears to have done little, if anything, to moderate its war conduct since South Africa submitted its genocide accusation on December 29th. The numbers of Palestinians killed in Gaza and the West Bank has continued to climb steadily; while there has been a slight improvement in number of humanitarian aid trucks, it is not impressive, and not reaching the north where hundreds of thousands are starving. There is still no electricity, no water, almost no medical services, and no safety.
Trita Parsi is the co-founder and Executive Vice president of the Quincy Institute for Responsible Statecraft.
Some reactions to ICJ ruling on South Africa’s genocide case against Israel
reposted from Al Jazeera
Palestinians in Gaza
Palestinians in Gaza said they are devastated by the ICJ decision not to order Israel to cease its near-four-month bombardment and ground invasion of the strip.
Ahmed al-Naffar, 54, who was intently following the court’s announcement in central Gaza’s Deir el-Balah, told Al Jazeera: “Although I don’t trust the international community, I had a small glimmer of hope that the court would rule on a ceasefire in Gaza,” later adding that “The court is a failure.”
Palestinians in the occupied West Bank
Lubna Farhat, a member of the Ramallah city council, told Al Jazeera she was somewhat disappointed by the ICJ decision but acknowledged it was a historic moment.
“We are very grateful and thankful for South Africa for filing this case, but what Palestinians aspired for was an immediate ceasefire,” Farhat said, adding that it was disheartening that the court did not call for an end to Israel’s military operations so humanitarian aid could be allowed into Gaza.
She said the ruling would only “escalate” settler attacks in the occupied West Bank and increase the attackers’ sense of impunity.
Palestine
Palestine’s Ministry of Foreign Affairs and Expatriates welcomed the ICJ’s ruling, saying in a statement it is an “important reminder” that no state is above the law.
Foreign Minister Riyadh Maliki noted that Israel failed to persuade the court that it is not violating the 1948 Genocide Convention.
In a statement he said: “The ICJ judges saw through Israel’s politicization, deflection, and outright lies. They assessed the facts and the law and ordered provisional measures that recognized the gravity of the situation on the ground and the veracity of South Africa’s application. … Palestine calls on all states to ensure respect for the order of the International Court of Justice, including by Israel.”
Israel
Israeli Prime Minister Benjamin Netanyahu slammed the ruling as “outrageous”.
In a video message shortly after the court order, he said Israel is fighting a “just war like no other”. He added that Israel will continue to defend itself and its citizens while adhering to international law.
Far-right National Security Minister Itamar Ben-Gvir mocked the ICJ after the court issued its interim ruling. “Hague shmague,” the minister wrote on the social media platform X.
South Africa
The South African government called the ICJ ruling a “decisive victory” for international law.
“How do you provide aid and water without a ceasefire?” Pandor asked. “If you read the order, by implication, a ceasefire must happen.”
United States
The United States said the ruling of the ICJ was consistent with Washington’s view that Israel has the right to take action, in accordance with international law, to ensure the October 7 attack cannot be repeated.
“We continue to believe that allegations of genocide are unfounded and note the court did not make a finding about genocide or call for a ceasefire in its ruling and that it called for the unconditional, immediate release of all hostages being held by Hamas,” a State Department spokesperson said.
European Union
“Orders of the International Court of Justice are binding on the parties and they must comply with them. The European Union expects their full, immediate and effective implementation,” the European Commission said in a statement.
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