On Friday, January 26, on the eve of International Holocaust Remembrance Day, the International Court of Justice (ICJ) declared that Israel must take specific provisional measures to ensure that it does not commit genocide against the Palestinian people as it proceeds in its war in the Gaza Strip against Hamas.
The bitter irony of the timing was not lost on anyone. “A terrorist organization carried out the worst crime against the Jewish people since the Holocaust, and now someone comes to defend it in the name of the Holocaust? What brazen gall,” Israeli Prime Minister Benjamin Netanyahu said in a statement pivoting from Gazans killed, injured or displaced in the last three months to Hamas’ attack on Israel on October 7. David Horovitz, editor-in-chief of The Times of Israel, wrote that the court’s timing “underlined a new post-World War II low for the ostensible protectors of humanity and their capacity to distinguish between right and wrong, aggressors and defenders.”
Of course, such responses, while swift and furious, were not universal. Reactions in Israel to the ICJ decision have ranged from outrage, to a sigh of relief, to a sobering assessment of its broad domestic and international implications. The ICJ ruling was handed down in response to a formal complaint filed against Israel by South Africa on December 28, 2023, in which South Africa alleged that Israel has violated the Convention on the Prevention and Punishment of the Crime of Genocide by both committing and failing to prevent genocidal acts. South Africa also asked the court to order Israel to cease its military operations immediately. Since the suit was filed against Israel by South Africa in accordance with the convention, which allows for non-involved states to bring the suit, Hamas itself is not a party to this deliberation.
At this time, according to most experts, some 26,000 Gazans, most presumed to be civilians, have been killed; a significant proportion of the country is destroyed and uninhabitable; most medical and social services are nonfunctioning, and large proportions of the population are facing acute hunger.
The court did not accept South Africa’s request and did not call on Israel to cease its military operations. Nor did it determine that Israel is, or is not, in violation of the Genocide Convention, a process that could take years. But because the ICJ did find that it has prima facie jurisdiction over this dispute between South Africa and Israel, and because “at least some” of South Africa’s allegations may be true, it demanded that Israel take “immediate and effective measures” to provide urgently needed basic services and humanitarian assistance to the people in the Gaza Strip and report monthly to South Africa regarding its compliance.
During oral arguments on January 11 and 12, South Africa’s lawyers presented numerous statements by Israeli officials and politicians, including Netanyahu, President Isaac Herzog and several cabinet ministers, that allegedly proved “genocidal intent” to displace and even annihilate all Palestinians in Gaza. These include declarations by Defense Minister Yoav Gallant at the start of the war about imposing a total siege without food, water, fuel and electricity (though Israel has allowed some of these to go into Gaza) and his references to “human animals” (though Gallant was speaking specifically of Hamas, not of all Gazans); Herzog’s statement that “It’s an entire nation out there that is responsible,” that made no distinction between civilians and Hamas fighters; a tweet by Nissim Vaturi, deputy speaker of the Israeli Parliament and member of the Foreign Affairs and Security Committee that stated, “Now we all have one common goal—erasing the Gaza Strip from the face of the Earth”; references to the biblical Amalek, which, according to literal interpretations, Israel is commanded to wipe out; and numerous other statements.
Israel claimed that the statements were made in the moments of trauma and anger that followed the October 7 massacre. But in the decision the ICJ called on Israel to sanction its officials and soldiers for comments that amount to incitement. And while the court refrained from referring to Hamas as a terrorist group, it did call for the “immediate and unconditional release” of the 136 hostages still held by Hamas.
Speaking at a briefing for journalists, Daniel Taub, Israel’s former ambassador to the United Kingdom, noted that the call for the return of the hostages, even though Hamas is not a partner to the deliberations, is “important and significant.” At a later briefing, in contrast, Alan Baker, who served as legal counsel for the Foreign Ministry and as Israel’s ambassador to Canada, referred to the call for the return of the hostages as “minimal, miserable, and shocking.”
Baker, like others, was also extremely critical of what he referred to as South Africa’s hypocrisy in bringing the case to the ICJ, since South Africa is close to Russia, which has ignored and violated the ICJ’s demand that it cease its war against Ukraine. He also noted that South Africa is only one of a handful of countries that even maintain diplomatic relations with Hamas. More significantly, he intimated that the South African government, which is in deep debt, received payments from Iran, for which Hamas is a proxy, in exchange for bringing the suit. Saying that he had this information from “solid sources,” Baker did not, however, cite them nor did he offer any further proof.
The Times of Israel’s Horovitz also wrote that even though the ICJ did not order a cease-fire, it did “almost everything but,” adopting a stance that “stains Israel with the accusation of plausibly engaging in genocide.” Furthermore, he added, “the court’s provisional measures were misdirected; it is from Hamas, not Israel, that Gaza’s innocent noncombatants must be protected by international measures.”
But in other quarters, a virtual “sigh of relief” could be heard throughout the country. In the words of former deputy president of the Israeli Supreme Court, Hanan Melcer, “The decision was less awful than it could have been.” As most noted, the fact that the court did not order Israel to cease-fire and halt all military operations in the Gaza Strip can be seen as an indication that the court isn’t convinced that Israel is currently and actively committing genocide against the Palestinians. Furthermore, as even Netanyahu has acknowledged, the court basically upheld Israel’s right to self-defense against Hamas in Gaza following Hamas’ attack on Israel on October 7th and continued firing of missiles into Israeli sovereign territory.
Moreover, while Israel must report within one month on the measures it is taking, there are no sanctions attached to these provisions. Israel has recently declassified more than 30 secret orders made by government and military leaders, which, it says, point to Israeli efforts to minimize deaths among Palestinian civilians.
Indeed, according to Tamar Megido of the International Relations Department of the Hebrew University, these required reports provide Israel with the opportunity to show the court and the world that it is acting in accordance with its moral responsibilities and the requirements of international law, including the provision of essential services and humanitarian aid to the residents of the Gaza Strip and the investigation and punishment of statements made by officials that could be considered incitement.
However, these clear expectations may present significant political difficulties to Netanyahu. The stability and even survival of his coalition depends on far-right parties and the cabinet ministers and members of parliament from these parties, along with some from his own Likud party, who regularly issue incendiary statements such as those cited by the ICJ.
Earlier this week, for example, senior cabinet ministers, including Minister of National Security Itamar Ben-Gvir and Finance Minister Betzalel Smotrich, joined some 15 Knesset members from the coalition, rabbis, settlement activists and heads of regional council at a meeting dubbed the “Conference for the Victory of Israel – Settlement Brings Security: Returning to the Gaza Strip and Northern Samaria.” The conference was billed as the opening volley of the campaign to settle Jewish Israelis in all of the Gaza Strip, including the city of Gaza itself. Speakers, including representatives of the government, cited the biblical Amalek frequently and called for the “voluntary emigration” of Palestinian civilians. Clarifying the question of voluntary emigration, Minister of Communications Shlomo Karhi explained to the crowd that in war, “‘voluntary’ is at times a state you impose [on someone] until they give their consent.”
Netanyahu’s spokesmen did not respond to Moment’s request for a response, and Netanyahu has yet to issue any comment regarding the participation of his ministers and MKs from his coalition. But it is clear that politically, Netanyahu is caught between the ICJ’s rock and his coalition’s hard-place.
On the international front, the ICJ decision will have serious repercussions for Israel’s international reputation and diplomatic standing and can be expected to add to calls to impose trade sanctions and arms boycotts against Israel, as well as providing further support for the Boycott, Divestment and Sanctions (BDS) movement.
But perhaps above all, all Israelis must now come to terms with the fact that the State of Israel has been accused of genocide and that, given the mass casualties that continue to mount, the ICJ and many others in the world believe the accusation may be credible.
Top Image: The International Court of Justice hearing South Africa’s genocide case against Israel on January 12, 2024, in The Hague, Netherlands.