U.N. Court Acknowledges Genocide Risk In Gaza, Dealing Historic Blow To Israel And U.S.

Keeping South Africa’s case against Israel’s U.S.-backed offensive alive, the International Court of Justice ordered Israel to take six big steps to prevent further human rights violations.

The International Court of Justice on Friday issued a stunning initial ruling in South Africa’s legal challenge to Israel’s devastating U.S.-backed military offensive in Gaza — acknowledging that there is a plausible risk of Israel committing genocide there and issuing six orders for a change in Israel’s conduct as it combats the Gaza-based Palestinian militant group Hamas.

The decision by the chief legal organ of the United Nations to sustain the case represents a major escalation in international pressure for a change in course by Israeli Prime Minister Benjamin Netanyahu and his chief foreign backer, President Joe Biden. Israel hoped to convince judges to dismiss the case, arguing they lacked jurisdiction and genocide accusations were belied by Israel’s approval of limited humanitarian aid for Gaza. The White House called South Africa’s accusation “unfounded.”

South Africa’s lawyers said the Israeli operation showed a “pattern of genocidal conduct,” citing the killings of thousands of civilians, the destruction of tens of thousands of homes, the displacement of nearly 2 million Gazans and Israel officials’ repeated threats against the Palestinian enclave.

They based their case on two primary reasons for an international intervention: that Israeli actions, including blocking aid, could cause irreparable damage to Palestinians; and that Israel is not preventing incitement to genocide.

Friday’s ruling showed the judges found at least part of South Africa’s claim of a possible or already ongoing genocide plausible.

The court ordered Israel to abide by six measures. A significant majority of the 17 judges supported imposing each measure, including in two instances Israel’s ad-hoc representative on the court, Aharon Barak.

The court directed Israel to take steps to prevent acts of genocide, to prevent its military from committing such acts, and to take measures to prevent the incitement of genocide in Gaza. Additionally, it ordered Israel to launch “immediate and effective measures” to boost humanitarian aid for Gaza, protect evidence of possible international law violations and give the court a report on its compliance with the orders within one month.

Presiding Judge Joan Donoghue acknowledged “a real and imminent risk that irreparable prejudice will be caused” to the rights of Palestinians in Gaza and underscored the court’s view that an urgent change in policy is needed because “irreparable harm” could ensue otherwise.

“The court is accurately aware of the human tragedy unfolding in the region,” Donoghue said, also acknowledging Israeli hostages held by Hamas and saying the court wants to see their “immediate, unconditional release.”

Reacting to the court’s decision, Netanyahu said: “Israel’s commitment to international law is unwavering. Equally unwavering is our sacred commitment to continue to defend our country and defend our people.”

The Israeli leader indicated he does not plan an immediate shift in the war, arguing: “Our war is against Hamas terrorists, not against Palestinian civilians. We will continue to facilitate humanitarian assistance and to do our utmost to keep civilians out of harm’s way.”

Judges take their seats prior to the hearing of Israel's defense at the International Court of Justice (ICJ) against South Africa's genocide case in Gaza against Israel on Jan. 12, 2024, in the Hague, Netherlands.
Judges take their seats prior to the hearing of Israel's defense at the International Court of Justice (ICJ) against South Africa's genocide case in Gaza against Israel on Jan. 12, 2024, in the Hague, Netherlands.
Anadolu via Getty Images

Humanitarian experts, including senior former U.S. officials, say the current strategy for providing aid to Gaza is deeply insufficient and needs to change — a view Donoghue echoed on Friday.

The ICJ will likely take years to reach a final ruling on South Africa’s charges, given the high degree of proof required, including serious evidence of intent.

Still, their decision not to dismiss the case will keep alive the question of whether the policy represents genocide, the most serious charge a government can face and one that is particularly jarring for Israel, a Jewish state founded in the shadow of the Holocaust and deeply invested in accountability for that genocide.

Without a dismissal, “South Africa has really won and Israel is associated with genocide as a matter of law,” said Ahmed Abofoul, an international lawyer and advocacy officer for the Palestinian human rights group Al-Haq, before the court’s ruling.

Israel clearly took the South African gambit seriously. Unlike in a 2004 ICJ proceeding over Israel’s “separation wall” in the occupied West Bank, Israel participated in the hearings this month. Netanyahu met with legal advisors on Thursday and Israel declassified government documents to suggest to the judges its government internally prioritized aid for Gaza and dismissed public statements by far-right ministers.

Abofoul noted that the court’s decision has big ramifications for other states, chiefly the U.S., by activating their obligation to stop genocide from occurring under international and domestic laws.

A former senior Israeli government official told HuffPost Israel was likely to try to smear the court and continue on its current path in Gaza.

Netanyahu “will leverage [the ruling] to claim that ‘the world is a hypocrite, anti-Semitic and totally untrustworthy,’” said the former Israeli official, who requested anonymity given the sensitivity of the issue. Israel “will try to send a message of ‘business as usual’ in terms of continuing the war,” they continued, saying they felt the country was unlikely to tolerate even a “lukewarm” decision seeking only greater humanitarian aid for Gaza.

Adil Haque, a Rutgers University professor, said earlier that there’s little chance Israel will immediately abide by the court’s ruling.

“The court’s orders are legally binding, and it could punish noncompliance in a future proceeding,” Haque told HuffPost. “But if Israel stops engaging with the court then only the U.N. Security Council can impose sanctions (an arms embargo, trade restrictions, etc).”

That means that in the immediate aftermath of the order, the Biden administration, on whose support Israel’s Gaza campaign depends, faces added scrutiny. Human rights advocates say the development underscores Washington’s special responsibility to prevent bloodshed and war crimes. “The court’s clear and binding orders raise the stakes for Israel’s allies to back up their stated commitment to a global rules-based order,” Balkees Jarrah, associate international justice director at Human Rights Watch, said in a Friday morning statement.

A U.S. official working on Middle East policy told HuffPost the Biden administration’s plan in advance of the ruling was to try to shift the narrative from its earlier criticism of the case by saying the ICJ’s orders reflect what the U.S. is already calling for.

“While it was a legal blow, it didn’t go as far as to address slowing or stopping [military] activity, which would have been a nightmare for our legal teams and top leadership,” said the official, who was not authorized to speak on the record. They identified an ICJ order for a cease-fire as Biden’s chief fear.

But messaging is unlikely to halt the growing drumbeat of international calls for a shift in Gaza policy, and the ICJ’s order for Israel to provide a report on its compliance that will be shared with South Africa increases the danger for Israel and the U.S. of being proven to make no changes.

It’s also possible the question of abiding by the ruling will soon be taken up by the U.N. Security Council. That would pose an added headache for the U.S., a permanent member of the body that can veto its actions and has often done so on behalf of Israel. U.S. attempts to shield Israel’s Gaza policy at the Council have drawn international scorn as most global governments rally around calls for a ceasefire in the war that began following a Hamas attack on Oct. 7, and America’s weakened influence in the international community has hurt attempts to build agreement on matters like supporting Ukraine against Russia, HuffPost has found.

The U.S. has also tried to stymie another attempt to investigate whether international law has been broken by any parties in the Israel-Hamas war, by seeking to deter Switzerland from accepting a Palestinian request for a global conference on violations of the Geneva Conventions, widely agreed-upon standards for warfare to which Israel and the U.S. are parties, HuffPost revealed last month.

The ICJ ruling set significant precedents that are likely to bolster Palestine in a broad array of courts, legal experts noted.

“The ICJ was clear that Palestinians are a protected national group. Think of this next time someone tells you, ‘There is no such thing as Palestinians,’” King’s College London lecturer Alonso Gurmendi wrote on Twitter, formerly X. “Israel’s claim that it is not doing anything wrong and it can continue to act as it is doing now, has been disproven. They LEGALLY need to change course. What this new course looks like is to be seen, yes. But this is still a good thing.”

Heidi Matthews, an assistant law professor at York University, argued the order could also force countries globally to reconsider arms exports to Israel.

“In order for states to fulfill their international obligations under the Genocide Convention they must *do something* ... the fact that states are now on formal notice that there is a serious risk of genocide should mean that preventing genocide in these circumstances means halting arms exports,” Matthews wrote.

Later on Friday, a federal court in California will hold the first hearing in a case brought by Palestinian Americans and rights groups seeking to end Biden’s support for the Gaza campaign and accusing him of complicity in genocide.

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