What the ICJ ‘genocide’ ruling means for Israel

Joan Donoghue retires from the International Court of Justice next week. As its president, she must have tried hard to reach agreement on South Africa’s claim against Israel under the Genocide Convention of 1948.

And she nearly succeeded. Of the 17 judges who sat, only Judge Sebutinde, from Uganda, took the view that ‘the dispute between the state of Israel and the people of Palestine… was not a legal dispute susceptible of judicial settlement by the court’. True though that may be, it was not acceptable to the other judges. It was not even acceptable to Uganda.

What Israel was required to do, said the court, was to ‘take all measures within its power’ to prevent the commission of acts defined as genocide. It must also ensure that its military does not commit any acts of genocide. As Barak said, these measures ‘merely restate obligations that Israel already has’ under the convention

The remaining judges tried to find a way through the convention that would allow them to order provisional measures against Israel. They noted that genocide is confined to acts ‘committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such’. If no such plan exists, the court has held that the necessary intent can be inferred from a pattern of conduct so long as this is the ‘only reasonable inference that can be drawn’. But it is entirely reasonable to infer from Israel’s conduct that it is acting in self-defence against an enemy that continues to attack it.

The judges stressed that they had not found Israel guilty of genocide. But that’s not necessary for provisional measures to be granted. All that’s needed is for allegations to be plausible.

Were they? This is where the judges’ reasoning breaks down. They start from the assumption that more than 25,000 Palestinians have been killed – without considering how many of them were lawfully killed in war or were killed by Hamas themselves. They say that Palestinians are a protected group and that Palestinians in Gaza form a substantial part of that group. But what they do not find is that the casualties were a substantial part of all those who describe themselves as Palestinians. The court then concludes vaguely that ‘at least some of the rights claimed by South Africa… are plausible’, such as the Palestinians’ right to be protected.

Three judges questioned this conclusion. Sebutinde said that South Africa had not demonstrated, even on the face of it, that Israel’s actions had been committed with the necessary genocidal intent.

Judge Nolte, from Germany, did not find genocidal intent plausible either. But he based his support for provisional measures on ‘the plausible claim by South Africa that certain statements by Israeli state officials, including members of its military, give rise to a real and imminent risk of irreparable prejudice to the rights of Palestinians under the Genocide Convention’. Although Israel’s leaders insisted they had been misquoted, this is the area where Israel was most vulnerable.

The parties were each entitled to send a judge to The Hague and Israel appointed its former chief justice, Aharon Barak (pictured). As the only member of the court to have survived a genocide – just 5% of his fellow Lithuanian Jews remained alive after the Holocaust – he is bound to have been an influential voice.

Although he too regarded genocide as implausible, Barak voted for two of the six provisional measures agreed by the majority. But all those measures were significantly different from those South Africa had asked for.

The court did not tell Israel to ‘immediately suspend its military operations in and against Gaza’ or tell Israel that others under its control or influence must do so too. It did not tell Israel or others to ‘desist’ from genocide or other specified acts in Gaza, which would have implied a finding of guilt. It did not order Israel not to ‘aggravate or extend the dispute before the court’. It did not even require Israel to tell the court within a week, and regularly after that, what it was doing to comply with the court’s order – though it did tell Israel to preserve the evidence that will be needed for a future hearing and to submit a single report to the court within a month.

What Israel was required to do, said the court, was to ‘take all measures within its power’ to prevent the commission of acts defined as genocide. It must also ensure that its military does not commit any acts of genocide. As Barak said, these measures ‘merely restate obligations that Israel already has’ under the convention.

But he supported an order requiring Israel to prevent and punish the direct and public incitement to commit genocide – in the hope, as he put it, ‘that the measure will help to decrease tensions and discourage damaging rhetoric’. And Barak agreed that Israel must provide humanitarian assistance in Gaza.

Israeli leaders should now think carefully before they speak. They must come down hard on anyone who calls for Israel to break international humanitarian law. Rightly or wrongly, the world court is watching.

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