When the International Court of Justice (ICJ) published its first order in the case of South Africa vs. Israel, it was hard to hide an initial jolt of disappointment.
The most important of the preventive measures requested, an immediate suspension of military operations in Gaza, was not adopted by the court – the opposite of what happened on March 16, 2022, three weeks after the invasion of Ukraine, when the court’s ruling imposed a ceasefire on the Russian Federation. That case also made reference to the 1948 Genocide Convention, as Russian leaders were claiming that genocide was supposedly taking place against the population of the Donbass.
In short, it looked like the cloud of suspicion that international justice is deeply influenced by geopolitical balances and is unable to free itself from double standards was again upon us.
However, as the reactions came in, the impression shifted. South Africa’s foreign minister and the institutional representatives and supporters of the Palestinians were substantially satisfied with the ruling. Israeli leaders were indignant, with the usual florid collection of accusations of anti-Semitism and outrage. Most importantly, a careful reading of the order itself allows us to take a more balanced position.
In the first place, the ICJ rejected Israel’s demands to not order any preventive measures and dismiss the case. This is because it fundamentally accepted South Africa’s argument: there is indeed a dispute between the two states (something denied by Israel, despite the fact that, for instance, its foreign minister has said that the genocide charge was not only factually incorrect, but obscene), and that this dispute clearly concerns the interpretation and application of the Genocide Convention, so the ICJ has jurisdiction under Article IX of the same.
There is a direct connection between the rights for which protection is sought – that of the Palestinians not to suffer genocide and that of South Africa to enjoin compliance with the Convention – and the interim measures ordered by the Court.
Against Israel’s claim that “only” international humanitarian law applies to the conflict (setting aside the fact that it is constantly being violated), the court recalled the tens of thousands of dead and wounded, the hundreds of thousands of homes destroyed, and the millions of refugees, citing UN agencies (OCHA, UNRWA, WHO) and the words of their leaders: “Gaza has become a place of death and despair,” and its inhabitants “live through the unlivable, with the clock ticking fast toward famine.”
The court also reiterated the dehumanizing statements by the likes of Gantz, Herzog, and Gallant, which we have repeatedly quoted. All of this is laid out in an order from the most important international court, despite the attempts by the Israeli government and its defenders to downplay its significance. Thus, that particular form of denialism that claims Israel cannot be accused of genocide while only Hamas shows clear genocidal intentions, advocated even by Jürgen Habermas, is groundless. The claim regarding the right of the inhabitants of Gaza to be protected from acts of genocide is “at least plausible.” The court will later decide on its merits.
The ICJ both called for the immediate and unconditional release of the hostages held by Hamas and also ordered Israel, among other things, to stop acts of genocide such as killings, physical and mental harm, the enactment of conditions leading to the destruction of the group, as well as “imposing measures intended to prevent births within the group.” (In its appeal, South Africa stressed the “reproductive violence” to which women and children are victims in Gaza.) It also ordered Israel to prevent incitement to genocide and provide humanitarian aid (provisions which were also endorsed by Israeli Judge ad hoc Barak). It’s hard to see how all of this would be possible if the military intervention continues.
Perhaps humanity hasn’t taken a decisive step at The Hague; perhaps a new level of consciousness hasn’t arisen. Nevertheless, the denunciation of the risk of genocide is on solid legal ground. And while international law is far from all-powerful, one can hold on to hope that it can serve as a field in which reason can hold sway, in a form that would allow brute force and violence to be limited, or at least restrained.
Luca Baccelli is Professor of Legal Philosophy at the University of Camerino, president of Jura Gentium.