ICJ sees danger of genocide in Gaza: What does this mean for political decisionmakers?

Even if many Palestinians understandably feel that the ICJ measures imposed are inadequate in light of the catastrophe in Gaza, it is a historic decision. The suspension of payments to the UN refugee agency for Palestinians, for example, from now on carries the risk of aiding and abetting genocide.

On January 26, the International Court of Justice of the United Nations (ICJ) gave its first decision on South Africa‘s genocide claim against Israel. So far, the court only ruled on the admissibility of the case and whether interim measures are necessary to prevent possible offences against the UN Genocide Convention by Israel while the ICJ will deal with the merits of the case for many months or probably even years.

Those affected, mainly the people of Gaza, who hoped that the world court would order an immediate cessation of hostilities, were disappointed. In contrast to Ukraine v. Russia, the ICJ did not order this. Nevertheless, the decision is historic in many ways.

What did the ICJ decide?

As already mentioned, at the current stage, the ICJ only decided on the admissibility of the South African application, the jurisdiction of the court and, subsequently, the potential risks of imminent genocide. No ruling was made on other alleged offences under international law such as war crimes. On their own, they do not necessarily, in fact only in rare cases, fall under the Genocide Convention.

Israel denied all allegations and based its arguments on the claim being rejected. The Israeli side first tried to argue that there was no dispute with South Africa, a technical requirement for a case to be admitted. Furthermore, it accused South Africa of acting disingenuously and on behalf of Hamas. Israel also spent a lot of time claiming that it is doing everything it can to protect civilians and provide humanitarian aid in Gaza, as well as stating that its right to self-defence would be undermined by the court’s intervention, as it has no judicial power over Hamas as a non-state actor. Finally, it categorised statements by Israeli politicians and military officers that could be interpreted as incitement to genocide as unrepresentative and irrelevant to the actions of the Israeli army.

Ultimately, the court did not acknowledge any of Israel’s objections and accepted South Africa’s claim under the Genocide Convention, including the request for interim protective measures. This means that, based on the information currently available, the ICJ recognises the risk of a genocide in Gaza and considers precautionary measures to be necessary.

In its reasoning, the court referred to public statements made by senior UN officials and political and military leaders from Israel. It also recognised data on the number of victims and other statistics on the extent of the destruction of infrastructure in Gaza by citing them.

Even the fact that the court ordered no immediate ceasefire was not justified on the basis of the right to self-defence. It simply did not impose this measure requested by South Africa without comment, or rather stated generally that provisional measures are at the discretion of the court. The ICJ thus was in line with its Advisory Opinion of 2004 regarding Israel’s construction of a separation wall to the West Bank, which does not recognise the right to self-defence within the scope of the UN Charter in the context of an occupation. This seemingly minor point is certainly important for international law, as a new ICJ Advisory Opinion on the legal implications of Israel’s policies in the Palestinian territories is due in February 2024 upon request of the UN General Assembly. At the same time, the ICJ is guarding itself against a possible undermining of its authority in the event that the enforcement of the ordered interim measures is suspended by a US veto in the Security Council.

The judges, chaired by Joan E. Donoghue from the US, were almost unanimous in their decision. Only the Ugandan and the Israeli judges specially appointed for the case had dissenting opinions. The Israeli judge Aharon Barak, however, did agree to the order to allow immediate humanitarian aid. All other 15 judges – including those from the UN Security Council member states, China, France, Russia, the UK, and the US, as well as the German ICJ judge Georg Nolte – shared the ruling.

Israel is therefore required to immediately cease all actions that could constitute a possible breach of the Genocide Convention and to stop any calls for genocide from the Israeli side. Furthermore, it must ensure that no possible evidence is destroyed and submit a report on the measures taken within one month.

Genocide is one of the few international crimes that is subject to an absolute prohibition and entails an obligation on all states to prevent it.

What does this mean for the political decisionmakers?

The ICJ’s ruling sends a clear signal to political decisionmakers:

The killing must stop, and any further support for Israel’s combat operations, for example in the form of arms supplies or other assistance to Israel’s actions in Gaza, must from now on be weighed from the point of view of possible aiding and abetting genocide or potentially punishable omission.

It is therefore now imperative for international politics and also the media to come to terms with this situation and the possible consequences.

For Germany as an ally of Israel, this means that, from now on, support should be aimed at preventing the state from taking on further responsibility for an impending genocide – also in order to protect its citizens from the burden of such guilt in the long term.

Furthermore, now is the time to take the authority of the ICJ seriously and refrain from making anticipatory political judgements about its work. Regardless of possible offences committed by individual employees, the suspension of payments to the UN Refugee Agency for Palestinians (UNRWA), for example, carries the risk of aiding and abetting genocide.

Even though many Palestinians understandably feel that the measures imposed are inadequate in light of the catastrophe in Gaza, I believe it is very important to interpret the court’s decision as a positive landmark in the interest of the international community.

Twenty years of international human rights work have often left me frustrated. Double standards in favour of the powerful and their allies play a decisive role in this. Of course, there are different degrees of power: Russia, for example, is not complying with the ICJ’s order to cease hostilities in Ukraine, but is also penalised with sanctions. On the global level, it is still the so-called West that controls the political and economic system and dominates the discourse.

With its complaint, South Africa has not only fulfilled its duty as a member of the international community, it has also set an example. In what is probably one of the world’s most politicised conflicts, where the post-colonial world and the existing hegemonic power structures clash, an African country has taken a stand and openly challenged the powers that be by using the means of international law. In doing so, South Africa is not only defending the rights of Palestinians before the highest international court, it also lays claim on the global narrative. In this context, it has won a first victory for itself, the Palestinians, and a large part of the world, and that alone is a historic moment.

While the last decades have brought neither peace nor justice in Israel-Palestine, the hope remains that new political approaches can finally provide security for all people in the region and that, in the wider context, the court of the United Nations will be able to live up to its immense task of accompanying the emerging new global balance of power.

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