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THE ICJ RULING IS A REPUDIATION OF ISRAEL AND ITS WESTERN BACKERS  
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Kenneth Roth
January 26, 2024
Guardian
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_ Will Israel’s allies urge Israel to comply with the court’s
ruling? It would do enormous damage to the ‘rules-based order’ if
they make an exception for Israel _

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The international court of justice’s (ICJ) ruling
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South Africa’s genocide case was a powerful repudiation of
Israel’s denialism. By an overwhelming majority, the court found a
“plausible” case that provisional measures were needed to avoid
“irreparable prejudice” from further Israeli acts in Gaza that
could jeopardize Palestinian rights under the genocide convention
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The public posture of various Israeli officials was, in essence: how
dare anyone accuse us of genocide. After all, they pointed out
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Israel was founded after the Holocaust to protect the Jewish people
from genocide, Hamas attacked Israel on 7 October, and many of
Hamas’s statements
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genocidal in intent.

Yet none of that is a defense to the charge of genocide. Regardless of
Israel’s history, regardless of its claim of self-defense, the means
chosen to fight Hamas can still be genocidal. The court found enough
merit in that claim to recognize that Palestinian civilians need the
court’s protection.

The court’s ruling was also a repudiation of Israel’s western
backers. The Biden administration had called the suit “meritless
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The British government said it was “nonsense
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By a vote of 15 to 2, the ICJ judges found otherwise.

On the need to allow humanitarian aid to a starving population in Gaza
and to prevent and punish the incitement of genocide, even the
respected Israeli judge, Aharon Barak, joined the majority, making the
vote 16 to 1 – a powerful repudiation of those
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chalk up challenges to Israel’s conduct in Gaza as an unfair double
standard or antisemitism.

In compelling detail, the court recounted the extraordinary suffering
of Palestinian civilians in Gaza as they are bombed and besieged by
Israeli forces. Transcending the contrasting visions presented by the
Israeli and South African lawyers, the court relied on statements by
UN officials to describe the appalling deaths, injuries, displacement,
starvation, deprivation of healthcare and trauma. The suffering could
get a whole lot worse, the court noted, if it did not intervene.

The court’s brief ruling did not delve too far into the factual
disputes, but it implicitly rejected key elements of the
Israeli defense
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The Israeli lawyers had emphasized that Hamas uses human shields and
fights from populated areas, but the court implicitly found those
facts insufficient to justify the massive loss of civilian life caused
by such practices as dropping huge 2,000lb bombs
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heavily populated areas.

The Israeli lawyers had stressed that Israel is allowing humanitarian
aid into Gaza, but UN officials were unequivocal
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describing how the drips and drabs of aid allowed, and the
bureaucratic obstacles mounted to its delivery, had left the civilian
population on the brink of catastrophe.

The lawyers noted that in many instances Israeli forces have acted to
protect Palestinian civilian life, but genocide can be committed
against only part of a population. The Israeli government may have
been causing just enough devastation to force Palestinians out of
Gaza, as several ministers have suggested
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One of the most powerful parts of the South African case had been its
citation of the statements of senior Israeli officials to show
genocidal intent. The Israel government had tried to explain those
statements away by suggesting they were made in the heat of the moment
and were contradicted by formal secret orders
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the Israeli cabinet that it had delivered to the court.

The court’s ruling shows that even governments with powerful friends
can be held to account

The court was unpersuaded, citing the statement of Defense Minister
Yoav Gallant – a central figure in the chain of command – that he
had “released all restraints
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and that Israel was fighting “human animals
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The court also cited President Issac Herzog’s statement
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“It is an entire nation out there that is responsible. It is not
true this rhetoric about civilians not being aware, not involved.”

The current proceedings were not about the ultimate merits of the
case. It could take years to determine whether Israel has committed
genocide in Gaza [[link removed]]. But the
provisional measures ordered by the court could make an enormous
difference in curbing the death and suffering of Palestinian civilians
now.

The key will be enforcement. The ICJ ruling is “binding”, as the
court stressed, but the ICJ has no military or police force at its
disposal. For coercive measures, it would need a resolution of the UN
security council, which requires contending with the US government’s
veto, so often deployed to protect Israel.

But the political pressure to comply with the ruling will be enormous.
Having trusted the court to send its lawyers to The Hague to present
its case, Israel would look horrible to reject the court just because
it lost. In calling the underlying genocide charges “outrageous”
– a finding that, as mentioned, the court did not yet address –
the Israeli prime minister, Benjamin Netanyahu, notably did not say he
would refuse to comply with the court’s provisional measures.
Let’s hope he will.

Some were disappointed
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the ICJ did not order a ceasefire, a step that was unlikely because
the court addresses only disputes between states, so Hamas was not a
party. A ceasefire imposed on only one side to an ongoing armed
conflict is not plausible.

The court did order
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to “take all measures within its power” to halt acts that
contribute to genocide, to allow sufficient humanitarian aid into Gaza
to end the suffering among Palestinian civilians, and to prevent and
punish the public statements of incitement made by senior Israeli
officials. Israel must report back to the court in a month on the
steps it has taken.

Yet there is a lot of wiggle room in those orders. That’s where
Israel’s supporters come in. Will they move past their earlier
skepticism toward the case and now urge Israel to comply? Western
governments backed
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ICJ in similar rulings against Myanmar, Russia and Syria. It would do
enormous damage to the “rules-based order” that Western
governments claim to uphold if they were to make an exception for
Israel.

Joe Biden holds the most powerful leverage. The US government provides
$3.8bn in annual military aid to Israel and is its principal arms
supplier. That support should stop if the Israeli government ignores
the court’s ruling. The US president should no longer put his fear
of domestic political consequences, or his personal identification
with Israel, before the lives of so many Palestinian civilians.

Other pressure for compliance could come from the international
criminal court [[link removed]].
Unlike the ICJ, which resolves disputes between states, the ICC
prosecutes individuals for such crimes as genocide, war crimes and
crimes against humanity. Better behavior now is no defense for crimes
already committed, but if Israel were to ignore the ICJ ruling, that
would be an added spur for the ICC prosecutor, Karim Khan, to act.

Much is still unresolved, but today is a win for the rule of law.
South Africa, a nation of the global south, was able to transcend
power politics by invoking the world’s leading judicial institution.
The court’s ruling shows that even governments with powerful friends
can be held to account. That provides hope for the profoundly
suffering Palestinian civilians of Gaza. It is also a small but
important step toward a more lawful, rights-respecting world.

_Kenneth Roth [[link removed]],
former executive director of Human Rights Watch (1993-2022), is a
visiting professor at Princeton’s School of Public and International
Affairs_

_Scroll less and understand more about the subjects you care about
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* International Court of Justice
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* Israel
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* Gaza
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* Genocide
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