The United Nation’s International Court of Justice (ICJ) is calling on Israel to “take all measures within its power” to prevent acts of genocide in its ongoing war with Hamas.
In its interim ruling in South Africa’s case against Israel, the ICJ declined to grant South Africa’s request to order immediate ceasefire in the conflict. The IJC also acknowledged that its order does not mean that Israel has committed any acts of genocide.
The use of the term “genocide” by Al Jazeera and others who have been acting as a public relations arm of Hamas has, justly, angered the Israelis who believe they are taking serious measures to avoid civilian casualties. So too has the omission of the term “genocide,” which has not been applied to Hamas even though Hamas has pledged to eliminate Jews living “from the river to the sea,” which actually is genocide.
Convention on the Prevention and Punishment of the Crime of Genocide
The 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Convention) was enacted after the atrocities committed during the Nazi Holocaust. It aims to protect the members of a national, ethnic, racial or religious group from acts of genocide.
The Convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” Such acts include killing members of the group; causing serious bodily or mental harm to members of the group; and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
The Republic of South Africa contends that Israel is responsible for committing genocide in Gaza and for failing to prevent and punish genocidal acts. On December 29, 2023, South Africa instituted proceedings against the State of Israel concerning alleged violations of the Convention.
In support of its position, South Africa claims that Israel’s genocidal intent is evident from the way in which Israel’s military attack is being conducted, from the clear pattern of conduct of Israel in Gaza, and from the statements made by Israeli officials in relation to the military operation in the Gaza Strip.
According to Israel, the atrocities committed during Hamas’s October 7, 2023 attacks, along with ongoing rocket attacks by Hamas, forced it to act with the “intention to defend itself, to terminate the threats against it and to rescue the hostages.” Israel further maintains that its practices of mitigating civilian harm and of facilitating humanitarian assistance demonstrate the absence of any genocidal intent.
In its arguments before the ICJ, Israel also asserted that the appropriate legal framework for the conflict in Gaza is that of international humanitarian law and not the Genocide Convention. It further argued that, in situations of urban warfare, civilian casualties may be an unintended consequence of lawful use of force against military objects, and do not constitute genocidal acts.
The Hague’s Gaza Ruling
On January 26, 2024, the ICJ — the highest court of the United Nations — issued an interim order. The court did not determine whether Israel is committing genocide against Palestinians, but rather found that South Africa had legal standing to bring the proceeding. It also ordered Israel to limit harm to Palestinians, preserve evidence of potential genocide, and submit a report on all its responsive measures to the court’s order.
In granting South Africa’s application for special measures, the IJC did not have to determine that Israel had committed genocide, rather only that its acts were capable of falling within the Convention and that urgent preventive action was required. According to the Justice Joan E. Donogh, “[A]t least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention.”
While the ICJ’s order puts pressure on Israel to further limit civilian harm in its war against Hamas and to prioritize humanitarian efforts, it does not go nearly as far as Israel’s critics had hoped. In its order, the IJC emphasized the civilian harm on both sides of the conflict, noting that Hamas still has Israeli hostages. The court also did not appear to embrace the argument advanced by South Africa that death and destruction in Gaza are sufficient to establish a violation of the Genocide Convention. As the case moves forward, South Africa will be required to show that Israel has the intent to destroy Palestinians in Gaza “in whole or in substantial part,” rather than defeat Hamas, which will likely be a tall order.
While the ICJ’s order is binding on the parties, it largely has no powers of enforcement, as noted by Itamar Ben-Gvir, Israel’s national security minister. He reacted to the order on X, writing: “Hague-schmague.”