Opinion: Why International Court of Justice ruling against Israel's war in Gaza is a game-changer
Raz Segal
Sat, January 27, 2024
Ronald Lamola, center, South Africa's minister of justice, stands with Ammar Hijazi, right, the Palestinian assistant minister of multilateral affairs, outside the International Court of Justice in The Hague on Jan. 11. (Patrick Post / Associated Press)
On Friday, the International Court of Justice issued an interim ruling against Israel and its war in Gaza. In the case, brought by South Africa last month, the court ruled that it is plausible that Israel is perpetrating genocide against Palestinians in Gaza. This ruling marks an end to the era of Israeli impunity in the international legal system.
The judgment pointed to dozens of explicit statements of “intent to destroy” by Israeli state leaders, wartime Cabinet ministers and senior army officers as well as the unprecedented levels of killing and destruction. The court also issued provisional measures, recognizing the dire situation: more than 26,000 Palestinians killed and more than 64,000 wounded in Israel’s bombardment, as well as almost 2 million people forcibly displaced now facing famine and the spread of infectious diseases.
The provisional measures did not include an order for a cease-fire, which South Africa had requested, but they did instruct Israel — by an overwhelming majority vote of the ICJ judges of 15 to 2 — to prevent any acts of genocide in Gaza and ensure that its military does not perpetrate such acts.
As part of the court’s provisional measures, Israel must also prevent and punish incitement to genocide; ensure the provision of urgent aid to Gaza; prevent the destruction of evidence and ensure its preservation; and provide the court with a report on these measures within a month. In effect, these orders do require a cease-fire, for there is no other way to carry them out.
The International Court of Justice ruling stems from the United Nations’ genocide convention, which was created in December 1948 and based on the view that Nazism and what we now call the Holocaust were exceptional.
This served a purpose: It separated the Holocaust from the piles of bodies and destroyed cultures that European imperialism and colonialism — still very much ongoing at the time — had left around the world in the preceding few centuries.
The exceptional status of the Holocaust rendered the new Jewish state that was established in May 1948 also exceptional, especially in view of the many Holocaust survivors who chose to try to rebuild their lives there.
Israel’s exceptional status led to a willful blurring of its foundational crime, the Nakba: the mass expulsion of more than 750,000 Palestinians and the destruction of hundreds of villages and towns in the 1948 war. That Israel could commit any crime under international law immediately became, in this exceptional framework, almost unimaginable. Impunity for Israel was thus baked into the international legal system after World War II. The urgent need to obscure the Nakba also emerged from the broader impetus to deny the nature of the Israeli state as a settler-colonial project. Paradoxically, Israel’s creation reproduced the racism and white supremacy that had targeted Jews for exclusion and, ultimately, destruction in Europe.
Israeli President Isaac Herzog expressed this white supremacy and colonial mind-set quite explicitly in an interview on MSNBC on Dec. 5: “This war is a war that is not only between Israel and Hamas,” he said in response to a question about the mass killing of Palestinians in Israel’s attacks on Gaza. “It’s a war,” he continued, “that is intended, really, truly, to save Western civilization.… We are attacked by a jihadist network, an empire of evil.” This empire, he said, “wants to conquer the entire Middle East, and if it weren’t for us, Europe would be next, and the United States follows.”
The concept of genocide functioned to protect the exceptional status of the Holocaust and Israel in the international legal system and to enable rather than challenge this long-held view. Until now.
With the ICJ ruling that Israel’s attack on Gaza is plausibly genocidal, every university, company and state around the world will now need to consider very carefully its engagement with Israel and its institutions. Such ties may now constitute complicity with genocide.
A few hours after the International Court of Justice ruling, another court heard a related case: In San Francisco, the Center for Constitutional Rights filed a lawsuit in federal court on behalf of Palestinian organizations and individuals, against President Biden and other U.S. officials for failure to abide by U.N. legal obligations to prevent genocide in Gaza and for complicity with genocide, because of the continued U.S. military and diplomatic support to Israel.
One after the other, Palestinian plaintiffs testified Friday about their family histories during the Nakba; their own experiences of Israeli mass violence; relatives they have lost since Oct. 8; neighborhoods in which they grew up that are no more; schools that Israeli bombings and invasion have turned to rubble; and cafes where they will never be able to drink tea again.
As it happens, these accounts came just before the International Holocaust Remembrance Day, which marks Jan. 27, 1945, when Soviet forces liberated the Nazi annihilation camp at Auschwitz.
We are entering a new era of international law. For the first time, we have seen courts consider the crime of genocide as a legal framework to describe what Palestinians are enduring. Through these cases, the voices of Palestinians point to a new era of Holocaust memory, beyond the denial of the Nakba, to a world that will finally put the voices, knowledge, histories and perspectives of all people who face state violence front and center.
Raz Segal is an associate professor of Holocaust and genocide studies and endowed professor in the study of modern genocide at Stockton University in New Jersey.
This story originally appeared in Los Angeles Times.
Why both South Africa and Israel are welcoming the UN court’s ruling in a landmark genocide case
Analysis by Nadeen Ebrahim and Abbas Al Lawati, CNN
Sat, January 27, 2024
Editor’s Note: A version of this story appears in CNN’s Meanwhile in the Middle East newsletter, a three-times-a-week look inside the region’s biggest stories. Sign up here.
A historic ruling by the United Nations’ top court in a genocide case against Israel on Friday was welcomed by the three main parties it involved: Israel, South Africa and the Palestinians. But at the same time, no one got what they asked for.
The International Court of Justice in The Hague, the Netherlands, ordered Israel to “take all measures” to prevent genocide in Gaza after South Africa accused Israel of violating international laws on genocide in its war in the territory.
It rejected Israel’s request for the case to be thrown out, but it also stopped short of ordering Israel to halt the war as South Africa has asked.
“I would have wanted a ceasefire,” said South African foreign minister Naledi Pandor after the ruling in The Hague. She said that she was still satisfied with the outcome.
Israel went to war with Hamas in Gaza after the Palestinian militant group launched a brutal attack on the country on October 7, killing 1,200 people and taking more than 250 people hostage.
The war has resulted in the death of more than 26,000 people in Gaza, according to the Hamas-run health ministry, and left much of the enclave in ruins. Israel has pledged not to stop its campaign until all the remaining hostages are released and Hamas is destroyed.
The case at the ICJ marks the first time Israel has been brought before the court on accusations of violating the 1948 UN Genocide Convention, which was drafted in part due to the mass killings of Jewish people in the Holocaust during the Second World War.
Still, many Israelis hailed the ruling on Friday as a win for the Jewish state. Eylon Levi, an Israeli government spokesperson, said the court “dismissed (South Africa’s) ridiculous demand to tell Israel to stop defending its people and fighting for the hostages.” Avi Mayer, the former editor in chief of the Jerusalem Post called it “a devastating blow to those accusing the Jewish state of ‘genocide’.”
“The most dramatic thing is that no ceasefire was ordered,” Shelly Aviv Yeini, head of the international law department at the Hostages and Missing Persons Families Forum, told CNN, adding that a potential ceasefire order was Israel’s biggest fear, especially as it would have come as over a hundred hostages remain in Gaza.
The discourse in Israel has so far focused on only ending the war once the hostages are freed, she said, adding that Israel would have “struggled to live” with a ceasefire order that doesn’t guarantee the return of the captives.
“So, I think this is quite (an) expected outcome, and something that Israel will be able to comply with,” she said, adding that the court’s order for Israel to deliver humanitarian aid and report back to the ICJ on its actions is “doable.”
A ‘dark day’ in Israel’s history
Despite the outcome being perceived by some as being in Israel’s favor, experts warned of the reputational damage faced by the Jewish state.
“I would not call it a win, but I would say it could have been worse,” Robbie Sabel, professor of international law at the Hebrew University of Jerusalem, told CNN. “The fact that in public eyes there’ll be an association that Israel’s acts could have led to genocide, clearly this is harmful public relations.”
Friday’s measure was an interim measure by the ICJ as the court considers a full ruling on whether Israel is guilty of violating the Genocide Convention. That ruling could take years.
Sabel said that while he is “absolutely convinced” that the ICJ will eventually find Israel not guilty of genocide, he worries that by that time “the public may have forgotten that.”
“If they had asked us to stop defending ourselves, we would have had a problem, and at least we don’t have that problem,” he said.
Yeini said it was nonetheless a “a very dark day” in Israel’s history.
For some Palestinians, however, the court’s ruling didn’t go far enough.
Mohammed el-Kurd, a Palestinian activist from Jerusalem, said the ICJ failed on South Africa’s “most important request” to suspend the military operations. “Not shocking, but stings nonetheless,” he said on X, formerly Twitter.
“Until the Israeli regime’s genocidal assault on Gaza stops, we should keep protesting and disrupting in every way possible. This is today’s lesson,” he said.
CNN’s Christian Edwards contributed to this report.
South Africa Invokes Mandela Legacy With Case Against Israel
S'thembile Cele
Sat, January 27, 2024
In a landmark ruling on Friday, the International Court of Justice ordered that Israel must take action to protect human life in Gaza, siding with South Africa after it accused Israel of committing genocide in the territory — while stopping short of demanding a ceasefire.
South Africa accused Israel of genocide on Dec. 29, three months after a Hamas attack killed 1,200 people and took many more hostage. Israel responded by launching a war on Hamas in Gaza which, at the time of the ICJ filing, had killed more than 23,000 people, according to Hamas-run authorities.
The case, which won widespread support across the Global South, represents a step by President Cyril Ramaphosa to reclaim the moral authority that South Africa gained after Nelson Mandela became president and then lost during Jacob Zuma’s corruption-tainted decade in power, according to political analysts.
“Some have told us to mind our own business,” Ramaphosa said in remarks after the ruling. “Others have said it was not our place. And yet it is very much our place, as people who know too well the pain of dispossession, discrimination, state-sponsored violence.”
With Ramaphosa’s African National Congress facing the prospect of losing its majority in this year’s elections, the Gaza issue is at the center of what his party hopes will be his administration’s legacy. South Africa’s stance against Israel is the latest in a series of outspoken positions Ramaphosa has taken on foreign policy, even as his government has struggled with domestic issues such as a crippling power crisis.
According to Sanusha Naidu, an independent foreign policy analyst, after years of losing its standing in the world order, the ICJ case represents a “moral victory” for South Africa. “History will remember this as the moment that defines a precedent in international law and a precedent in international relations,” she said.
The case has unified the ANC, which has been divided in recent years, and helped rally the party around Ramaphosa. The fate of Israel and the Palestinian people is a particularly charged issue in the country, as South Africa’s white supremacist apartheid government was established in 1948, the same year the state of Israel was founded, and the two developed strong economic ties right from the beginning.
The ANC, the black liberation party that in later years would take up arms against the government, recognized a counterpart in the Palestinian cause. Since the war began on Oct. 7, South African critics of Israel have drawn parallels between the killing of civilians in Gaza and the violence of South Africa’s own apartheid regime.
South Africa’s delegation was led by the youngest minister in Ramaphosa’s cabinet, 40-year-old Ronald Lamola, who delivered the opening speech before the court. In it, he outlined how the decades-long conflict had escalated, and why urgent intervention was needed.
“The international community has now seen in forensic detail the atrocities of what is happening in the Gaza strip,” Lamola told Bloomberg before the ruling was handed down. “We believe we have exposed the propaganda by the state of Israel under the guise of hunting for Hamas.”
Israel has denied any intent to commit genocide and characterized the South African case as “absurd blood libel.” It maintains its right to self-defense against Hamas, which is categorized as a terrorist organization by the EU and US. Despite mounting international pressure, Israeli Prime Minister Benjamin Netanyahu has maintained that the war will continue until Hamas is eradicated and all of the hostages have been freed.
According to Sydney Mufamadi, a former security minister under Mandela and now Ramaphosa’s envoy to conflict zones, South Africa’s reckoning with its own dark history has given it a “moral authority” in matters of international law, including Israel’s intervention in Gaza.
After more than four decades of repressive white minority rule, the country negotiated a relatively peaceful transition to democracy in 1994 with the election of Mandela. His conciliatory approach towards the outgoing regime was credited with averting the kinds of violence then taking place in other former colonial territories.
Partly as a result of this legacy, Mufamadi noted that South Africa has been consistent in its view that warring parties must be open to dialogue. “We don’t know of a conflict which does not end up at the table,” he said.
At the same time, the ICJ decision is likely to further polarize an increasingly fragmented global order. Dozens of countries have aligned themselves with South Africa’s bid to bring about a ceasefire in Gaza, while Western nations including the US, UK, Germany and France continue to side with Israel.
To many South Africans, the country’s outspoken advocacy on behalf of Palestinians has become a point of national pride. Sithembile Mbete, a political analyst, characterized the ICJ case as having “cemented” a global reckoning that was already underway.
“The majority of states in the world, judging by the decisions in the UN general assembly,” she said, “support South Africa’s position on this. South Africa is not deviating from the commonly accepted international line.”
(Bloomberg) -- Within South Africa, the case has also helped bring together the ANC at perhaps the most challenging moment in its history. After being propelled to power on a commitment to “a better life for all,” the party’s standing eroded under former President Zuma, who presided over the hollowing out of key state institutions.
Zuma has yet to be indicted for alleged corruption, and nor have friends of the former leader who stand accused of looting an estimated 500 billion rand from state coffers been held to account. As a result of protecting Zuma, the ANC suffered major losses in the last election, though still retained majority control.
When Ramaphosa, Zuma’s former deputy, took office in 2017, his first task was to address the corruption and malfeasance that had grown under his predecessor.
In recent years, Ramaphosa has tried to position himself as a voice of justice and moral clarity in international affairs. He lobbied the World Trade Organization to provide broader vaccine access during the Covid-19 pandemic, spearheaded an initiative to help bring an end to Russia’s war with Ukraine and led the charge to expand the BRICS economic bloc by inviting six nations, among them major oil producers, to join.
While these moves have been criticized as political opportunism — or as a way for Ramaphosa to deflect attention from internal politics — they have also increasingly made South Africa the voice of the Global South.
Read More: El Al Stops South Africa Route After ICJ Case Against Israel
Despite his global ambitions, Ramaphosa will have to rely on envoys in coming months as he campaigns for re-election. After 30 years in power, the ANC is more vulnerable than ever, with some polls indicating that the party will lose its majority and be forced either to govern through a coalition or out of power. Concerns about sluggish economic growth, failing state-owned companies and energy insecurity are top of mind for voters, who are unlikely to reward Ramaphosa’s international efforts so long as their quality of life continues to deteriorate.
Yet inside the party, Ramaphosa’s crusading has won him support he previously lacked.
“He’s proven to have instincts around this that are much sharper than what he was given credit for,” said Mbete.
“Whatever happens with the election,” she added, “he will have set a good foundation for himself to continue playing an international role.”
©2024 Bloomberg L.P.
It's not enforceable. It doesn't say if Israel is committing genocide. What's ICJ's Gaza ruling for?
Kim Hjelmgaard, USA TODAY
Updated Sat, January 27, 2024
A panel of 17 judges at the Hague-based International Court of Justice on Friday ordered Israel to implement a series of measures aimed at averting genocide in the Gaza Strip.
The order is part of a wider case brought by South Africa at the U.N.'s highest court into whether Israel is already committing genocide against Palestinians in Gaza as it fights the war against Hamas.
Even though the ruling is not enforceable, and the actual legal case as to whether Israel is guilty of genocide is expected to take several years to wend its way through the court, the order is more than just symbolic.
A Palestinian man holds a portrait of late Palestine Liberation Organisation leader Yasser Arafat and South Africa's anti-apartheid icon Nelson Mandela outside a municipality building in Bethlehem in the occupied West Bank, on Jan. 12, 2024.
Here's what the ICJ's order, which Palestinian Minister of Foreign Affairs Riyadh Maliki has described as a ruling in "favor of humanity and international law," means for the Israel-Hamas war.
What impact will the ICJ ruling have on Gaza?
Perhaps not a lot immediately in terms of a material change to conditions on the ground.
South Africa had asked the court to issue an emergency order to compel Israel to commit to a cease-fire in Gaza. It didn't do that. Instead, it ordered Israel to undertake actions to prevent the killing and harming of civilians in Gaza, such as refraining from killing members of a group and not imposing conditions that could prevent women from giving birth. It ordered Israel to prevent and punish public comments that incite genocide.
Still, even if the ICJ had demanded that Israel halt its military campaign, the court has no formal way to implement this order -- and Israel has made it clear that it only intends to stop fighting when Hamas is defeated, and Israel gets all of its hostages back. "We will continue to do what is necessary to defend our country and defend our people," Israeli Prime Minister Benjamin Netanyahu said Friday, speaking after the court's ruling.
Meanwhile, Palestinian lawmaker Mustafa Barghouti said that because of the scale of destruction and ongoing fighting in Gaza, "Israel cannot implement ICJ decisions without an immediate and permanent ceasefire."
What pressure does this put on the U.S.?
There are some big potential implications for the U.S., long Israel's staunchest military and diplomatic ally. The U.S. is facing increasing pressure to twist Israel's arm and stop a war that has killed more than 26,000 Palestinians, mainly civilians, according to the Hamas-run Gaza Health Ministry.
For a start, because the ICJ has no real mechanism to enforce its decisions, the matter could be pushed to a vote in the U.N. Security Council, where members can order economic sanctions or military action.
If a U.N. Security Council vote does happen, "the Biden administration will once again face the choice of protecting Israel politically by casting a veto, and by that, further isolate the United States, or allowing the Security Council to act and pay a domestic political cost for 'not standing by Israel,'" said Trita Parsi, the co-founder and executive vice president of the Quincy Institute for Responsible Statecraft, a Washington, D.C. think tank.
Nancy Okail, president and CEO of the Center for International Policy think tank in Washington, D.C., said that the ruling from the ICJ "is more than a legal technicality; it's about safeguarding human rights on a global scale."
So far, the White House hasn't said much about the ICJ's ruling − even whether it respects the decision.
Okail said this sends the wrong message.
"If we support the creation of a global community based on shared rules rather than simply might makes right, it is absolutely essential that all countries, including the United States, acknowledge the legitimacy of this ruling and take necessary steps in response," said Okail, in emailed comments.
What happens now?
The ICJ has ordered Israel to report, within a month, back to the court detailing what it's doing to uphold all the measures within its power to prevent acts of genocide in Gaza. Israel has not said whether it will comply with this.
In fact, after the ruling some of Israel's most senior officials such as its Defense Minister Yoav Gallant and Foreign Minister Israel Katz expressed disappointment, as well as a tone of defiance.
"The state of Israel does not need to be lectured on morality in order to distinguish between terrorists and the civilian population in Gaza," Gallant posted to social media. "The IDF and security agencies will continue operating to dismantle the military and governing capabilities of the Hamas terrorist organization."
Katz said Israel was committed to international law that existed "independently of any ICJ proceedings."
Attention now turns to reports in recent days suggesting President Joe Biden plans to dispatch CIA Director William J. Burns to the Middle East to help broker a deal between Hamas and Israel that would involve the release of all remaining hostages held in Gaza and the longest cessation of hostilities since the war began last year.
This article originally appeared on USA TODAY: Here's what the ICJ's Gaza order means for Israel-Hamas war
