ICJ decides genocide by Israel in Gaza plausible

Israel was ordered to take all measures to prevent all genocidal acts, punish inciting genocide and allow humanitarian aid

In a landmark ruling on Friday, the International Court of Justice (ICJ) decided by an overwhelming majority that Israel has a plausible case to answer that she committed acts of genocide in her conduct of the war in Gaza in a case brought by South Africa under the Genocide Convention 1948.

The ICJ embarked on a detailed analysis of the convention holding that South Africa had standing to bring the claim even though she is not directly involved in the conflict in Gaza. The court decided that state parties to the convention had undertaken to prevent genocide and have a common interest to protect victims of genocide wherever it is taking place. And where there is plausible evidence of genocide the court would order provisional measures, without in the least prejudging the final outcome.

Israel did not challenge South Africa’s standing to bring the case, but the ICJ took it upon itself to remind state parties to the convention that they had a common interest – a duty even – to ensure compliance with their undertaking in article 1 of the convention to prevent genocide.

Israel did challenge the jurisdiction of the court, however, on the ground that no dispute had crystallised between her and South Africa at the time the case was brought on December 29, 2023. However, the court was able to point to instances where South Africa and Israel had positively disagreed at the UN on Israel’s conduct of the war and its effect on the Palestinians in Gaza. It was not a strong point to take at all since by the time of the hearing there was obviously a dispute between the parties about whether Israel was committing genocide in Gaza.

Israel’s strongest point was that the case was inadmissible because the requirement to show intention to destroy Gaza’s population as a group had not been shown to exist to the required standard. Hamas had started the war by its attack on October 7, 2023, and Israel was reacting to defend herself by eliminating Hamas. However, the court was not impressed with that argument on account of the draconian impact of the operation on the people of Gaza. It held that some of Israel’s acts and omissions appeared plausible and capable of falling within the provisions of the convention – in particular the prohibition on killing and wounding etc with intent to destroy a group . At any rate, plausible enough to trigger the kind of measures the court imposed, although as the court did not order a ceasefire, the self-defence argument lost much of its force.

The court refused to order a ceasefire advisedly, because its role at the interim stage was to hold the fort and preserve the rights of both parties including Israel’s right to use force in self-defence. But of course the right of self-defence is a limited right to use necessary and proportionate force in circumstances where the threat from Hamas no longer looms so large – it must have been degraded considerably after three months of relentless attack.

Israel was ordered to take measures to prevent all genocidal acts, punish inciting genocide, allow humanitarian aid, preserve evidence and report back to the court on the implementation of the measures ordered in a month. Interestingly, although the Israeli judge, Justice Aharon Barak, rejected that the case of genocide was plausible, he nevertheless voted in favour of the parts of the order against inciting genocide and the provision of humanitarian aid. He is a Holocaust survivor and fearlessly independent and explained his partial support for the order, saying he wanted to discourage damaging rhetoric and to alleviate the consequences of armed conflict for the most vulnerable.

As the court made clear, there was a real risk of irreparable harm to the Palestinians of Gaza that needed to be addressed urgently. If Israel complies, the measures ordered strike a fair balance between protecting the Palestinians of Gaza while preserving Israel’s right to defend herself.

When the case comes to trial in years to come, the main issue is going to be a question of fact, namely: whether Israel’s destruction of Gaza was done in order to destroy the Palestinians in Gaza as a group or to defend herself. Under English domestic criminal law, you could have a direct or an oblique intention. A direct intention is when you act in order to bring about an outcome, and an oblique intention is when you act knowing an outcome is certain even if it is not your purpose.

According to Israel the death, harm and intolerable conditions of life in Gaza are collateral damage because Hamas uses its civilian population as human shields. Israel issues warnings by leafleting and texts to the people of Gaza to relocate to safe areas before military operations.

But it has to be said that the constant relocation of nearly 2 million people to areas they are told are safe that are then bombarded is no way to protect civilians and there was nothing collateral about the intolerable living conditions inflicted on them.

Genocide is the logical extension of the crime of murder. Just like killing an individual is punishable as homicide, the intentional destruction of a national, ethnic, or religious group is punishable as genocide and is considered the crime of crimes. South Africa was right to bring the case and not just pass by on the other side like the civilised global north did out of anti-semitic guilt.

Alper Ali Riza is a king’s counsel in the UK and a former part time judge