The ICJ’s Ruling On “Plausible Genocide” In Gaza: an Incomplete Victory

Any evaluation of the International Court of Justice’s rulings of January 26^th must begin by applauding its determinations (1) that Israel’s military actions in Gaza fall within the provisions of the Genocide Convention; (2) that the Palestinians are indeed a distinct group facing the crime of genocide, and (3) that South Africa’s claim of Israeli engagement in “plausible genocide” is valid, meaning that the Court will begin trying Israel for genocide. That is a process that will take several years but is hugely important.

The very proceedings of the trial will have an immense effect on what is actually the World Court, the Court of Public Opinion, lending legal, political and moral backing to the struggle for Palestinian rights and an end to Israeli genocide and apartheid. It could also further the prosecution of Israeli officials and military personnel for war crimes at the International Criminal Court as well as begin holding accountable accomplices to Israel’s crimes. If Israel is eventually convicted of genocide, countries having supported its policies or arming it could be tried for complicity under the Genocide Convention. On the local level, cases such as  Defense for Children International-Palestine et al v. Biden et al, in which President Biden, Secretary of State Blinken and Secretary of Defense are being sued in a California District Court for “failure to prevent and complicity in the unfolding genocide against Gaza,” may have a much better chance of success.

“Today marks a decisive victory for the international rule of law and a significant milestone in the search for justice for the Palestinian people,” said the South African Foreign Ministry. “There is no credible basis for Israel to continue to claim that its military actions are in full compliance with international law, including the Genocide Convention, having regard to the Court’s ruling.”

The ICJ should also be applauded for the six Provisional Measures it did impose on Israel, namely, to:

• Take all measures to ensure that acts deemed genocidal under the Genocide Convention do not take place in Gaza
• Ensure that its military does not commit genocidal acts
• Prevent and punish incitement to genocide
• Enable and facilitate the provision of basic services and humanitarian assistance to the people of Gaza
• Prevent destruction of and preserve evidence of genocide in its military operations, and
• Report to the Court on its compliance within one month.

All these measures, plus the Court’s detailed explanation of why Israel is in fact engaged in “plausible” and ongoing genocide, gives us all the legal backing to press for an actual end to Israeli genocide, most immediately in Gaza but not forgetting the ongoing genocide being committed against the entire Palestinian people, whether in historic Palestine or in the continued existence of Palestinians as refugees.

The Weakness of the Decision

The ICJ ruling is therefore strong and important as we move forward in the struggle for Palestinian rights. Looking at it, however, from the perspective of the immediate need to protect the Gazans from the actual genocide they are experiencing at this moment – the urgent order to impose a ceasefire the South Africans were asking for – we have to join the Palestinians in deploring the Court’s decision not to issue that Provisional Measure. Proscriptions on all acts of genocide can only ensure Israeli compliance if they are reinforced by an imposed ceasefire. Merely ordering Israel “to take all measures within its power not to violate the provisions of the Geneva Convention” and to ensure that its military forces not violate it is, on the ground, non-operative and ineffective. As long as Israel refrains from overtly genocidal acts – which it has already committed and can now moderate – the orders do little to prevent the genuine end of the effects of the war crimes, crimes against humanity and, yes, genocide, that the ongoing military operations perpetuate. B’tselem, Israel’s leading human rights organization, agrees. “The only way to implement the orders issued today by the International Court of Justice in the Hague,” it said in an issued statement, “is through an immediate ceasefire. It is impossible to protect civilian life as long as the fighting continues.”

Many defenders of the ICJ ruling, including the Palestinian human rights organization Al-Haq, argue that the requirement for Israel to end or curtail its military operations is contained within the decision on genocide and the order for provisional measures, since many of the provisions — ending genocidal acts, for example, or enabling humanitarian aid — cannot be accomplished without a de facto ceasefire. Writes human rights lawyer Robert Herbst: “Within the decision on genocide and the order for provisional measures, there is, sub silento, a requirement that Israel end or curtail its military operations. That may or may not amount to a ‘ceasefire,’ but it would probably accomplish the end of virtually all the genocidal mass killing and wounding, destruction of the infrastructure that is left, and the massive infusion of humanitarian assistance to restore some measure of civilized life in Gaza.”

I beg to disagree. What actions actually violate the Provisional Measures are by their nature vague and manipulable. As against the charge that an act is genocidal, for instance, Israel can argue self-defense. In fact, it is because of the haziness between them that restrained the ICJ from issuing the ceasefire order. In order that “plausible genocide” is to be effectively prevented, the six Provisional Measures prohibiting Israel from continuing its genocidal actions had to be issued in tandem with an immediate ceasefire. Determining whether genocide is occurring requires either a long-term process of destroying a people in whole or in part (such as Israel’s violent displacement of the Palestinians from their lands and homeland since 1948 or the overtly genocidal intent of Zionism to replace the Palestinian population of Palestine with Jews and transform an Arab country into a Jewish one) or grossly overt acts of killing and destruction (as Israel has committed in Gaza up to this point). But being warned by the Court that it is looking at specific acts of genocide will enable Israel to curtail its military operations so as to cosmetically refrain from committing specific acts deemed genocidal without, however, reducing de facto the lethality and destructiveness of its ongoing war. Thus the killing of 27, 000 Palestinians (so far), the vast majority being civilians, amounts in the Court’s view to plausible genocide. But without a ceasefire order and reducing genocidal behavior to “acts,” Israel can claim that each killing is unfortunate “collateral damage” or a tragic mistake. You lose the forest of genocide for the trees of individual actions. Israel already destroyed 70% of Gaza and displaced more than two million of its inhabitants. It can afford going forward more “carefully,” keeping its military operations at the level of “mere” war crimes and crimes against humanity, meaning with without a ceasefire the six Provisional Measures will have no impact on the actual military operations.

I may be far too harsh here, but on the ground the sub-text of the ICJ ruling seems to be: We give you, Israel, permission to continue your military campaign in Gaza (with its genocidal consequences, even if no new genocidal acts are committed) as long as from now on you refrain from acts that may be interpreted as genocidal. True, the ICJ can revisit its decision in the future, but in Israel you can hear the collective sigh of relief all the way to The Hague.

The test will come in another month when Israel submits its report to the ICJ on how it is dealing with the measures. The Court could then judge its efforts and, if found significantly wanting (which in my mind it has to be, spin notwithstanding), issue a ceasefire order. That remains to be seen. Even as I write this the day after the ICJ’s ruling, Israel has launched a major attack inside Khan Yunis, which it has encircled with thousands of civilians trapped inside, and is beginning its push south toward Rafah, albeit “carefully.” There is no hint that the ICJ ruling has affected military operations in any way. Indeed, Israel’s actions today might be seen as a “Zionist answer” to the ICJ. It is this concern that the ICJ ruling has little immediate effect on what the Palestinians are actually experiencing that has led to disappointment in the ICJ’s refusal to order a ceasefire.

The Ball is in Our Court

The ICJ ruling highlights the fatal flaw in the international system of law: wonderful, thought-out, powerful covenants and laws like the UN Charter, the Genocide Convention and the Fourth Geneva Convention — any of which, if actually enforced, would have caused the collapse of Israel’s illegal occupation, protected the Palestinian people and given us the instruments to dismantle Israel’s colonial regime. Instead, we have a legal system saddled with an extremely weak system of implementation that essentially nullifies the laws themselves.

The ICJ gave us a strong legal and moral case for pressing our campaign against genocide in Gaza, if not beyond. However, in terms of actual protection of the people of Gaza and holding Israel accountable for its crime of genocide, the ICJ passed the ball to us. The ball should be in the court of our governments, of course. They are the ones charged with the responsibility for enforcing international law – a responsibility they never genuinely accepted, and which they violate with impunity.

It is up to us to take the Court’s judgment that genocide is being plausibly conducted before our eyes and do what the ICJ could have done and didn’t: force our governments to impose an immediate ceasefire. We must be the watchdogs that call out not only the crime of genocide that is Israel’s assault on Gaza, but all the war crimes and crimes against humanity that Israel will continue to commit, that are embedded in the very process of military pacification. We must create public pressure on our governments – especially the United States and Germany – to end their massive arms transfers and to impose economic sanctions on Israel.

And we must be aware that the genocide is ongoing. Beyond calling for a ceasefire, beyond calling for an end to Israeli genocide, we must hold Israel accountable for the genocidal situation it is constructing, which will continue even after the end of hostilities.

END ISRAELI GENOCIDE NOW!

IMMEDIATE CEASEFIRE IN GAZA!

FREE ALL ISRAELI HOSTAGES AND PALESTINIAN POLITICAL PRISONERS