International Court of Justice tells Israel to meet its obligations under the Genocide Convention

By Annette Gartland on January 27, 2024

UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ.

The International Court of Justice (ICJ) in The Hague has told Israel that it must meet its obligations under the Genocide Convention and take all measures within its power to prevent the commission of all acts against Palestinians in Gaza that fall within the scope of Article 2 of the convention.

The court cited the following acts:

killing members of the group,
causing serious bodily or mental harm to members of the group,
deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, and
imposing measures intended to prevent births within the group.

UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ.

Reading out the court’s order, ICJ president Judge Joan E. Donoghue said that these acts fell within the scope of Article 2 of the convention when they were committed with the intent to destroy a group in whole or in part.

“The Court further considers that Israel must ensure with immediate effect that its military forces do not commit any of the above-described acts,” she added.

In its application to the ICJ, South Africa asked that the court include in its measures a demand that Israel immediately suspend its military operations in and against Gaza. The ICJ did not include this in its order.

The ICJ said that, in its view, at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appeared to be capable of falling within the provisions of the Genocide Convention.

The court said that Israel must 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”.

It also said that Israel must 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.

Israel must also take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts against Palestinians in Gaza that fall within the scope of Articles 2 and 3 of the Genocide Convention, the court said.

The ICJ said it considered that the civilian population in the Gaza Strip remained extremely vulnerable. It recalled that the military operation conducted by Israel after October 7, 2023, had resulted, inter alia, in tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities and other vital infrastructure, as well as displacement on a massive scale.

The court noted that the military operation was ongoing and that the Prime Minister of Israel, Benjamin Netanyahu, had said on January 18 that the war would take many more long months.

“At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating,” the ICJ said.

“The WHO has estimated that 15 per cent of the women giving birth in the Gaza Strip are likely to experience complications, and indicates that maternal and newborn death rates are expected to increase due to the lack of access to medical care.

“In these circumstances, the court considers that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the court renders its final judgement.”

The order announced by the court yesterday (Friday) was an interim order. The ICJ was not ruling on whether Israel has committed genocide in Gaza. This judgement will come later.

The ICJ said that Israel must submit a report to the court on all measures taken to give effect to its order within one month as from the date of the order.

The court took note of a press release issued on November 16, 2023, by 37 special rapporteurs, independent experts and members of working groups from the Special Procedures of the United Nations Human Rights Council, in which they voiced alarm over “discernibly genocidal and dehumanising rhetoric coming from senior Israeli government officials”.

Also, on October 27, 2023, the United Nations Committee on the Elimination of Racial Discrimination said it was highly concerned about the sharp increase in racist hate speech and dehumanisation directed at Palestinians since October 7, 2023, the court noted.

“In the court’s view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible,” the ICJ stated.

The court added that it deemed it necessary to emphasise that all parties to the conflict in the Gaza Strip were bound by international humanitarian law.

It said it was “gravely concerned” about the fate of the hostages abducted during the attack in Israel on October 7, 2023, and held since then by Hamas and other armed groups, and called for the “immediate and unconditional release” of those hostages.

Palestine’s Foreign Minister Riyad al-Maliki said the ICJ’s ruling was “an important reminder that no state is above the law” and the court’s decision “should serve as a wake-up call for Israel and actors who enabled its entrenched impunity”.

Al-Maliki added: “We call on all states to ensure that all provisional measures ordered by the court are implemented, including by Israel, the occupying power. This is a binding legal obligation.

“States now have clear legal obligations to stop Israel’s genocidal war on the Palestinian people in Gaza and to make sure that they are not complicit.

The ICJ judges ruled in favour of humanity and international law, Al-Maliki said.

Benjamin Netanyahu said the charge of genocide levelled against Israel was not only false, it was “outrageous”. He said Israel would continue to defend itself against Hamas. “Israel’s commitment to international law is unwavering,” Netanyahu said. “Equally unwavering is our sacred commitment to continue to defend our country and defend our people.”

Israel had asked that the case brought by South Africa be removed from the ICJ’s General List, but the court concluded that, prima facie, it had jurisdiction to entertain the case and therefore could not accede to this request.

Associate international justice director at Human Rights Watch Balkees Jarrah said: “The World Court’s landmark decision puts Israel and its allies on notice that immediate action is needed to prevent genocide and further atrocities against Palestinians in Gaza.

“Lives hang in the balance, and governments need to urgently use their leverage to ensure that the order is enforced. The scale and gravity of civilian suffering in Gaza driven by Israeli war crimes demands nothing less.”

Jarrah said the ICJ’s “clear and binding order” raised the stakes for Israel’s allies to “back up their stated commitment to a global rules-based order by helping ensure compliance with this watershed ruling”.

Amnesty International described the ICJ’s order as an “an important step that could help protect the Palestinian people in the occupied Gaza Strip from further suffering and irreparable harm”.

The secretary-general of Amnesty International, Agnès Callamard, said the court’s decision sent a clear message that the world would not stand by in silence “as Israel pursues a ruthless military campaign to decimate the population of the Gaza Strip and unleash death, horror, and suffering against Palestinians on an unprecedented scale”.

Callamard said the ICJ’s decision could not alone put an end to the atrocities and devastation Gazans were witnessing.

“Alarming signs of genocide in Gaza, and Israel’s flagrant disregard for international law highlight the urgent need for effective, unified pressure on Israel to stop its onslaught against Palestinians,” she said.

“An immediate ceasefire by all parties remains essential and – although not ordered by the Court – is the most effective condition to implement the provisional measures and end unprecedented civilian suffering.”

The ICJ said that, in view of the fundamental values sought to be protected by the Genocide Convention, it considered that the “plausible rights in question in these proceedings”, namely the right of Palestinians in the Gaza Strip to be protected from acts of genocide and related prohibited acts identified in Article 3 of the Genocide Convention and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the convention, were of such a nature that prejudice to them was capable of causing irreparable harm.

The court was yesterday ruling on the application by South Africa for provisional measures in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide”.

The ICJ said: “At the present stage of the proceedings, the court is not required to ascertain whether any violations of Israel’s obligations under the Genocide Convention have occurred.

“Such a finding could be made by the court only at the stage of the examination of the merits of the present case.”

The court said that it could not, at this stage, make definitive findings of fact and the right of each party to submit arguments in respect of the merits remained unaffected by the its decision on the request for the indication of provisional measures.

“The Court is not called upon, for the purposes of its decision on the request for the indication of provisional measures, to establish the existence of breaches of obligations under the Genocide Convention, but to determine whether the circumstances require the indication of provisional measures for the protection of rights under that instrument,” the ICJ stated.

The ICJ’s rulings are legally binding and they cannot be appealed. The court has no means of enforcing its rulings, however. If Israel fails to abide by the ICJ’s order, a UN Security Council member state can submit a resolution to the council, based on the ICJ’s order. If such a resolution were to be passed the security council would have the power to take punitive action against Israel.

Some critics of the ICJ’s ruling pointed to the fact that the court had not called for a ceasefire, but South Africa’s Minister of International Relations and Cooperation, Naledi Pandor, said she believed that, in exercising the order, there would have to be a ceasefire. “Without it, the order doesn’t actually work,” she said.

Pandor said she had hoped for a ceasefire, but there was no way that she would say she was disappointed.

“The fact of delivering humanitarian aid, the fact of taking measures that reduce the levels of harm against persons who have no role in what Israel is combatting, for me requires a ceasefire,” she said.

Pandor said that, if Israel acts in accord with the ICJ’s order, she thinks the implications are for a future hopeful world.

“Should it not, then, essentially, we’re opening up room for all abusers in many conflicts throughout the world,” she said. “And I think we’ll be setting a terrible, terrible precedent.”

The US Campaign for Palestinian Rights tweeted: “The ICJ has overwhelmingly ordered Israel to prevent acts of genocide in Gaza and prevent & punish genocide incitement. The case will proceed. This is a crucial moment in history to finally holding Israel accountable, but not a ceasefire order as requested.”

The campaign added: “One thing has been made clear on the world stage: There is vastly documented evidence that Israel is committing genocide against Palestinians. We all saw & heard it read out in court, from Israeli officials themselves.”

Reporters at Middle East Eye (MEE) said, however, that, while the case had initially felt historic and significant, the interim verdict fell below many Palestinians’ expectations.

“The decision of the ICJ is an unsatisfactory decision for any Palestinian,” said journalist Aseel Mousa, based in Gaza.

“The court gave Israel another month to continue killing, displacing, and starving us, and since it approved the entry of humanitarian aid, it thus gives Israel an opportunity to continue to exterminate us while supplying us with scraps of the food, medicine, and essential life necessities we need.”

Mousa said that Palestinians she spoke with in Gaza had hoped for the court to order an immediate ceasefire.

Reporter Ruwaida Amer added that displaced people in Gaza were left feeling frustrated and dispirited following the decision.

Middle East Eye reporters quoted MEE’s Gaza correspondent Maha Hussaini as saying that it was, nevertheless, a historic day for the Palestinian victims of Israeli crimes, in particular journalists who had been targeted and killed.

“For the first time … the international community is actually admitting that Israel is accused of committing genocide, which is a very significant milestone,” Hussaini said.

Hani Mahmoud, reporting for Al Jazeera from Rafah in southern Gaza, said Palestinians were feeling great frustration and resentment over the ICJ’s ruling because what they were waiting for was “an end to this madness, a cessation of all hostilities, the ongoing, intense bombing”. At the time the court’s statement was read there was still bombing going on in the city of Khan Yunis, Mahmoud said.

People in Gaza were exhausted, Mahmoud said. “They want to go back to their homes, they want to see remaining family members, they want to go back to normal life, but the statement did not give them that and that’s why they’re continuing to be restless,” he added.

South African advocate and professor of law Thulisile “Thuli” Madonsela tweeted: “The case at this stage was not to make a finding of Genocide but to confirm if the impugned acts of Israel in Gaza can be plausibly regarded as genocidal acts in violation of the Convention on the Prevention and Punishment of the Crime of Genocide. The court said yes on all counts and that there was a risk of irreparable harm if Israel does not stop hence provisional measures ordered.”

Genocide researcher and educator Arnesa Buljušmić-Kustura urged people to “stop having a doomist and pessimistic view on the ICJ ruling”. It was a huge win for Palestinians, she said.

“It was always known that the ICJ is limited in its powers … that does not mean that the ruling they just handed out is not a huge and historic win. This is the first time Israel is being held to account legally and at the level of the World Court,” Buljušmić-Kustura tweeted.

Buljušmić-Kustura said she shared people’s frustration and believed that the ICJ could have, and should have, called for a complete and total cessation of military activity.

“But it is one thing to express frustration w/ that and another to dismiss entirely the fact this was a huge loss for Israel,” she tweeted.

“As horrific as it may be, this case was, sadly, not about stopping the genocide. It was about ensuring Israel is found guilty of genocide. The ICJ is not the mechanism for stopping genocide but the mechanism for determining whether genocide is happening or not under intl law.

“We now have the duty to take this ruling and apply pressure on our governments to stop the genocide … whether through humanitarian intervention or diplomacy … this case still leads to the possibility of ending the bloodshed.”

British MP and former Labour Party leader Jeremy Corbyn said the ICJ’s order was “a vital step” toward justice for the Palestinian people.

“The ICJ corroborated that Israel has caused enormous levels of death, destruction and displacement; found that this amounts to a plausible risk of Israel committing genocide; and ordered Israel to take all measures within its power to prevent genocide,” Corbyn said.

“I want to congratulate South Africa for speaking up for our shared humanity. Their case put the entire international community on trial, exposing the cowardice and complicity of our political leaders who have so shamefully failed the Palestinian people.

“If our political leaders respected international law, they would call for the unconditional fulfilment of the provisional measures the court has granted today, and demand an immediate ceasefire in Gaza.”

Corbyn added: “We are witnessing an annihilation of a people, a culture, and a history. We must not stop calling for a ceasefire, and for the only path to a just and lasting peace: an end to the occupation of Palestine.”

The British Palestinian Committee stated in a letter to the UK’s Foreign Secretary, David Cameron, that the ICJ’s ruling was “a stark warning to third party states, including the UK, that active support of Israel’s military assault risks aiding and abetting genocidal acts against the Palestinian people”.

The director of The Electronic Intifada and author of ‘One Country’ and ‘The Battle for Justice in Palestine’, Ali Abunimah, tweeted: “A ‘ceasefire’ is what you demand in an armed conflict. In a genocide you demand an immediate end to all genocidal acts and that is exactly what the ICJ ordered with immediate effect. Please stop helping ‘Israel’ spin its historic defeat as a win.”

He added: “Equally important to remember that ICJ ruling is not about what Israel will do: Israel will ignore *any* ruling. This is about forcing the rest of the world to take seriously their obligations to stop an entity now officially accused of genocide by the world’s highest court.”

Amnesty International’s Agnès Callamard said: “The stakes could not be higher – the ICJ’s provisional measures indicate that, in the court’s view, the survival of Palestinians in Gaza is at risk. The Israeli government must comply with the ICJ’s ruling immediately.

“All states – including those who were critical of or opposed South Africa’s submission of the genocide case – have a clear duty to ensure these measures are implemented.

“World leaders from the USA, UK, Germany and other EU states must signal their respect for the court’s legally binding decision and do everything in their power to uphold their obligation to prevent genocide. Failure to do so would be a grave blow to the credibility and trust in the international legal order.”

The American journalist and author Chris Hedges says the ICJ’s ruling is a legal victory for South Africa and the Palestinians, but it will not halt the slaughter in Gaza.

In an article on Substack he wrote: “Time is not on the side of the Palestinians. Thousands of Palestinians will die within a month. Palestinians in Gaza make up 80 percent of all the people facing famine or catastrophic hunger worldwide, according to the United Nations. The entire population of Gaza by early February is projected to lack sufficient food, with half a million people suffering from starvation, according to the Integrated Food Security Phase Classification, drawing on data from U.N. agencies and NGOs. The famine is engineered by Israel.

“At best, the court – while it will not rule for a few years on whether Israel is committing genocide – has given legal license to use the word ‘genocide’ to describe what Israel is doing in Gaza. This is very significant, but it is not enough, given the humanitarian catastrophe in Gaza.”

Former editor-in-chief of the Jerusalem Post Avi Mayer was one of those who claimed victory for Israel in yesterday’s ruling. “Israel’s detractors are scrambling to spin the International Court of Justice’s decision as somehow bad for Israel’s military campaign against Hamas, but it’s no use: the court pointedly refrained from calling for a halt to Israel’s military effort. A significant win for Israel,” he tweeted.

Mayer described the ICJ’s order as “a devastating blow to those accusing the Jewish state of ‘genocide’”.

Israel’s National Security Minister Itamar Ben-Gvir said the ICJ was antisemitic. “Decisions that endanger the continued existence of the State of Israel must not be listened to,” he said.

Israeli media quoted the country’s Defence Minister, Yoav Gallant, as saying Israel “does not need to be lectured on morality”.

Gallant was referred to by the ICJ in its ruling. The court drew attention to his statement on October 9, 2023, that he had ordered a “complete siege” of Gaza City and that that there would be “no electricity, no food, no fuel” and his statement the next day to Israeli troops that they were fighting “human animals”.

The court also referred to the statement made about Gaza by Israel’s President, Isaac Herzog, in which he said: “It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not aware, not involved.”

Fifteen ICJ judges were involved in the court’s deliberations along with the ad hoc judge for Israel, Aharon Barak, and the ad hoc judge for South Africa, Justice Dikgang Moseneke.

Justice Julia Sebutinde from Uganda voted against all the provisional measures South Africa sought against Israel.

She even voted against two measures that Aharon Barak voted in favour of: measures to prevent and punish incitement to commit genocide and to enable the provision of basic services and humanitarian assistance. The other 15 judges voted in favour of all six measures.

In her dissenting opinion Justice Sebutinde said she did not believe that the provisional measures indicated by the ICJ in its order were warranted. South Africa had not demonstrated, even on a prima facie basis, that the acts allegedly committed by Israel were committed with genocidal intent, she said.

“I reiterate that in my respectful opinion the dispute between the State of Israel and the people of Palestine is essentially and historically a political one, calling for a diplomatic or negotiated settlement, and for the implementation in good faith of all relevant Security Council resolutions by all parties concerned, with a view to finding a permanent solution whereby the Israeli and Palestinian peoples can peacefully coexist,” she wrote.

The Ambassador and Permanent Representative of Uganda to the United Nations, Adonia Ayebare, tweeted that Justice Sebutinde’s ruling at the ICJ did not represent the Ugandan government’s position on the situation in Palestine. “She has previously voted against Uganda’s case on DRC,” he said. “Uganda’s support for the plight of the Palestinian people has been expressed through Uganda ‘s voting pattern at the United Nations.”

Judge Patrick Lipton Robinson from Jamaica was unable to be present at the ICJ yesterday, but participated in the deliberations and final decision.

Euro-Med Human Rights Monitor says that 33,360 Palestinians were killed in Gaza between October 7, 2023, and January 25. The death toll includes 13,022 children, 7,160 women, 305 healthcare professionals, and 117 journalists.

Nearly 92% of those killed in the Israeli air and artillery attacks on the Gaza Strip were civilians, the organisation said.

Euro-Med Human Rights Monitor estimates that there are two million displaced people in the Gaza Strip who remain without a safe shelter amid inhumane conditions.

UPDATE: On February 12, South Africa called upon the International Court of Justice to consider “as a matter of the greatest urgency” whether the developing circumstances in Rafah require that it exercise its power “to prevent further imminent breach of the rights of Palestinians in Gaza”.