ICJ Chooses the Middle Course

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On Jan. 26, the International Court of Justice in The Hague issued an interim ruling in the case brought by South Africa, which charges that Israel’s military operation in Gaza is a state-led genocide. As part of its case presentation South Africa asked the court to order Israel to “immediately suspend its military operations against Gaza.” The court’s ruling did not do so.

Instead, the court took what is essentially a middle path — acknowledging that acts of genocide may plausibly have taken place in the Gaza war, that there is a risk that acts of genocide may take place in the future, that Israel should ensure that such acts not take place and that Israel increases the flow of humanitarian aid to Gaza.

In a legal sense, the ruling was the equivalent of a warning finger wag.


Although the court said that it is plausible that acts of genocide have occurred in the Gaza war effort, it made no such finding. And it will be years before any final ruling on the genocide accusation is made. More importantly, the court did not order Israel to stop its military activity and withdraw from Gaza. So, as far as Israel is concerned, it can comply with the first part of the ICJ order without changing any of its military activity. As to the second part of the order, reports indicate that humanitarian aid relief to Gaza has been increasing.

Advocates on both sides claimed victory, even as neither side got what it asked for. South Africa wanted an interim order directing Israel to stop all military activity in Gaza. That didn’t happen. Israel wanted the whole case thrown out, for failure to state a legitimate claim of genocide. That didn’t happen, either. Instead, while the court recognized that Israel’s war is clearly one of self-defense, it determined that South Africa’s claims of Israel’s intentional campaign of genocide against the Palestinian people warranted further case development.

In framing its opinion, the court was careful to acknowledge many of the horrors of Hamas’ Oct. 7 attack before turning to a discussion of the scope, consequences and intent of Israel’s challenged response. And on the central issue of the claim of genocide, the court noted that terrible acts alone are not enough to constitute genocide.

Rather “the intent must be to destroy at least a substantial part of the particular group.” And on that issue, the court quoted several statements by Israeli officials, including President Isaac Herzog and Defense Minister Yoav Gallant, which, combined with the IDF’s massive attacks on Gaza, led the court to state that “at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.”

Plausible, not proven. And certainly not enough to direct Israel to stand down in the Gaza war.

But the court found enough in the record to keep the case going. That will keep the lawyers busy but won’t interfere with Israel’s ongoing war effort, which we trust will observe the court’s cautionary directives.

1 COMMENT

  1. I’m confused about the refusal of the ICJ to throw out this bizarre charge of genocide against Israel. The IDF uses every technique imaginable to prevent the death of innocent Palestinians. The result is the lowest civilian to combatant death ratio of any military in modern times. And yet the UN generally and South Africa specifically are taking the IDF, not the openly genocidal Hamas, to the IJC. Why? I think we all know the answer.

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