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January 26, 2024

What now, Genocide Justin?

Dimitri Lascaris

More by this author...

Today, the International Court of Justice issued an historic decision in favour of South Africa's genocide claim against Israel. The decision will reverberate in international relations for years to come - and no one will benefit more than the Palestinian people.

In a meticulously detailed application filed with the Court last month, South Africa accused Israel of violating its obligations under the Genocide Convention of 1948.

Pending a final determination of South Africa’s claim, South Africa requested urgent provisional measures to protect the people of Gaza.

The Court then scheduled an expedited hearing, held over two days on January 11 and 12, to hear argument on South Africa’s request for provisional measures. The measures South Africa requested included an order requiring Israel to “immediately suspend its military operations in and against Gaza.”

By a vote of 15-2, the Court has determined it to be plausible that Israel is violating its obligations under the Genocide Convention.

Based on that determination, the Court ordered the following provisional measures:

1.  Israel must take all measures within its power to prevent the commission of all acts within the scope of Article II of the Genocide Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births. Israel must ensure with immediate effect that its military forces do not commit any of the above-described acts.

2.  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.

3.  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.

4.  Israel must also take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Genocide Convention against members of the Palestinian group in the Gaza Strip.

5.  Israel must submit a report to the Court on all measures taken to give effect to its Order and must submit that report to the Court within one month, as from the date of its Order.

How the ICJ judges voted

All judges from Western states found it to be plausible that Israel is violating the Genocide Convention. Those judges come from the United States, France, Germany, Australia, Slovakia and Japan.

Because those judges come from Israel’s staunchest defenders on the world stage, Israel’s apologists have no basis on which to dismiss the ICJ’s decision as a product of ‘anti-Israel bias’.

Moreover, in support of its determination that there was plausible evidence of Israel’s genocidal intent, the Court cited three examples. One example was an assertion by Israel’s President, Isaac Herzog, that:

It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not aware, not involved. It is absolutely not true.

Herzog is routinely presented by Western elites as a voice of moderation and restraint in Israel. Indeed, only days ago, Herzog was feted as a respectable figure at the World Economic Forum in Davos.

The fact that Herzog’s own words were cited by the Court as evidence of Israel’s genocidal intent constitutes an indelible stain upon his legacy, and an indictment of Western leaders who have sought to legitimize Herzog.

The tone of the ICJ’s decisions is generally restrained, and this decision was no exception.

Yet, the Chinese judge (Xue Hanqin) issued a separate concurring opinion in which she powerfully condemned Israel’s atrocities in Gaza.

Justice Xue wrote:

In the past one hundred and nine days, the world was shocked to watch what was unfolding in Gaza. According to United Nations reports, hostilities between Israeli military and Hamas have caused tremendous civilian casualties, unprecedented in history. Following the 7 October massacre and hostage-taking by Hamas, the Israeli military land operation in and air bombardment of Gaza, targeting civilian buildings, hospitals, schools and refugee camps, coupled with the cut-off of food, water, fuel, electricity and telecommunication, and the constant denial of humanitarian assistance from outside, have made Gaza a most dangerous and uninhabitable place. In such a short span of time, it is reported that at least 25,700 Palestinians have been killed, over 63,740 injured, with over 360,000 housing units destroyed or partially damaged and approximately 75 per cent of Gaza’s population — 1.7 million people — internally displaced (United Nations Office for the Coordination of Humanitarian Affairs (OCHA), Hostilities in the Gaza Strip and Israel — reported impact, Day 109 (24 Jan. 2024)). Among the victims, most are children and women. The situation in Gaza remains horrendous, catastrophic and devastating. No ceasefire is in sight. According to United Nations reports, the conditions of life in Gaza continue to deteriorate rapidly with catastrophic levels of hunger, a serious shortage of potable water and other essential necessities, a collapsing medical and health system, a looming outbreak of contagious diseases, etc. The gravity of the humanitarian disaster in Gaza threatens the very existence of the people in Gaza and challenges the most elementary principles of morality and humanity.

[Emphasis added.]

The only judges who opposed the Court’s order were those from Uganda and Israel.

Notably, although he strongly disagreed that Israel was plausibly committing genocide, the Israeli judge (Aharon Barak) nonetheless voted in favour of two provisional measures ordered by the Court, namely, that Israel take action against public incitement, and that Israel ensure the provision of adequate humanitarian aid to Gaza’s people.

The Court did not order a ‘ceasefire’ – so what?

From the moment that the ICJ announced its decision, Palestinian solidarity activists broadly denounced the Court for failing to order a ceasefire.

As mentioned above, one of the provisional measures South Africa requested was an immediate ‘suspension’ of Israel’s military operation in and around Gaza.

While it is true that the Court’s order made no reference to a suspension of military operations or to a ‘ceasefire’, those who have seized upon this aspect of the Court’s decision (no matter how understandable their reaction may be) are erroneously prioritizing form over substance.

The ICJ has ordered, among other things, that:

Israel must, in accordance with its obligations under the Genocide Convention, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group.

[Emphasis added.]

The only practicable way for Israel to stop killing and causing serious bodily or mental harm to Palestinians in Gaza is to suspend its attacks on the devastated and densely populated Gaza Strip.

In effect, therefore, the Court has in fact ordered a suspension of Israel’s military operations in Gaza. There simply is no other rational interpretation of its decision.

What now, Genocide Justin?

Article I of the Genocide Convention imposes an obligation on all parties to prevent genocide. Article I states:

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

[Emphasis added.]

In November of last year, months before the ICJ rendered today’s decision, the International Commission of Jurists issued a statement in which it opined that the Article I obligation to prevent genocide had been triggered.

According to the International Commission of Jurists:

It is not necessary for a definitive determination that genocide is taking place. As the International Court of Justice (“the Court”) held in Bosnia v Serbia, a “State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” The ICJ considers, based on the above, that such threshold has been reached in Gaza, triggering States’ duty under international law to take measures to prevent acts of genocide.

[…]

The Genocide Convention imposes a minimum legal obligation on States to each take reasonable action to contribute toward preventing genocide, a duty that extends extraterritorially and applies regardless of whether any one State’s actions alone are sufficient to prevent genocide…

[Emphasis added.]

Now that the ICJ has ruled that it is plausible that Israel is committing genocide within the meaning of the Genocide Convention, there can be no serious question that the duty to prevent genocide under Article 1 of the Genocide Convention has been triggered.

This means that all parties to the convention now have a duty to take positive steps to prevent Israel’s commission of genocide in Gaza.

The precise contours of the duty to prevent genocide may be debatable, but one thing is beyond dispute: it is no longer open to Israel’s supporters to maintain a business-as-usual approach to Israel. Each and every party to the Genocide

Convention must now take concrete, meaningful steps to stop the horrors in Gaza.

As a matter of law, it is no longer open to Israel’s allies to send weapons to Israel. It is no longer open to them to block action by international institutions to protect Palestinians, or to allow their citizens to serve in Israel’s military or to funnel financing to Israel’s military or other institutions of the Israeli state.

The time for empty rhetoric is over.

Genocide Justin and his pro-genocide cabinet now have a clear, indisputable duty to act.

If they refuse to do so, they will be held accountable in accordance with due process of law. Of that, they can be sure.

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Dotan Rousso. Holds a Ph.D. in Law—a former criminal prosecutor in Israel. Currently working as a college professor in Canada.

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