The ICJ ruling was a victory for Palestinians and for international law. Here are possible avenues for enforcement.
What comes next, now that the International Court of Justice (ICJ), also known as the World Court, has handed down its near unanimous ruling that South Africa presented a “plausible” case that Israel was violating the Genocide Convention?
The January 26 provisional ruling – which was a landmark victory for the Palestinian people, and indeed, for international law itself — now goes to the United Nations Security Council for enforcement. It would be within the Security Council’s purview to order economic or trade sanctions, arms embargoes, travel bans or even military force.
But in the likely event that the United States vetoes enforcement measures from the Security Council, the UN General Assembly can still act independently in materially significant ways.
The ICJ’s final decision in this case could take several years. But given the urgency of the mass death and humanitarian crisis currently unfolding, the court has in the meantime ordered six “provisional measures” to protect the Palestinians in Gaza from genocidal acts while the court finishes considering the merits of the case.
In its ruling, the court said it is “acutely aware of the extent of the human tragedy that is unfolding in the region and is deeply concerned about the continuing loss of life and human suffering.” It described the civilian population in Gaza as “extremely vulnerable,” noting “tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities and other vital infrastructure, as well as displacement on a massive scale.” The court added that the “operation is ongoing” and that Israeli Prime Minister Benjamin Netanyahu had stated it “will take many more long months.” The court noted, “At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating.”
Provisional Measures the ICJ Ordered Israel to Immediately Implement
The ICJ ordered Israel not to commit genocidal acts against Palestinians in Gaza immediately, even as the ICJ continues its slow process of officially considering the merits of the genocide case.
The court concluded that “the catastrophic humanitarian situation” in Gaza “is at serious risk of deteriorating further before the Court renders its final judgment.” Moreover, the court said that the right of the Palestinians to be protected against genocidal acts and South Africa’s right (as a party to the Genocide Convention) to ensure Israel’s compliance with the convention could be safeguarded by provisional measures.
The ICJ found “a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible.” The court wrote, “It is therefore necessary, pending its final decision, for the Court to indicate certain measures in order to protect the rights claimed by South Africa that the Court has found to be plausible.” They are:
- Israel shall take all measures within its power to prevent the commission of all genocidal acts, particularly (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group.
- Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above.
- Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide.
- Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in Gaza.
- Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence.
- Israel shall submit a report to the Court on all measures taken to give effect to this Order within one month from the date of this Order.
The court affirmed that “all parties to the conflict in the Gaza Strip are bound by international humanitarian law.” It said it is “gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups” and called for “their immediate and unconditional release.”
Votes on the provisional measures were 15-2 or 16-1. Ugandan Judge Julia Sebutinde dissented from all of them. Israeli ad hoc Judge Aharon Barak dissented from all except the measures requiring Israel to prevent and punish incitement to commit genocide and to allow humanitarian aid into Gaza.
Now that the ICJ has ordered provisional measures, how will its order be enforced?
Actions the UN General Assembly Can Take If US Vetoes Enforcement by Security Council
If the U.S. vetoes enforcement actions via the Security Council, the General Assembly can convene under Uniting for Peace, a resolution passed by the General Assembly to bypass the Soviet Union’s veto during the Korean War. The General Assembly can recommend that its member states impose arms and trade embargoes on Israel and organize a military force to intervene in Gaza. The General Assembly could also suspend Israel from its ranks. These decisions would require a vote of two-thirds of the 193 member states of the General Assembly.
“A strong resolution there could call for specific legal, economic, political, diplomatic, consular, organizational and other measures. And individual states and regional orgs should act as well, as a matter of legal duty under the convention and under the Charter,” according to Craig Mokhiber, former director of the New York Office of the UN High Commissioner for Human Rights, who resigned in 2023 because the UN was not ending what he called Israel’s “textbook case of genocide.”
“Third States are now on notice of the existence of a serious risk of genocide against the Palestinian people in Gaza,” the South African Department of International Relations and Cooperation said in a statement. “They must, therefore, also act independently and immediately to prevent genocide by Israel and to ensure that they are not themselves in violation of the Genocide Convention, including by aiding or assisting in the commission of genocide. This necessarily imposes an obligation on all States to cease funding and facilitating Israel’s military actions, which are plausibly genocidal.”
How Does the ICJ’s Provisional Decision Relate to Calls for Ceasefire?
Although the court did not order that Israel “immediately suspend its military operations” in Gaza, as requested by South Africa, the provisional measures it did order effectively require a ceasefire. The ICJ’s orders forbid the genocidal killing of Palestinians and mandate that Israel allow humanitarian aid into Gaza, which cannot be accomplished without a ceasefire.
“How do you provide aid and water without a ceasefire? If you read the order, by implication a ceasefire must happen,” South African Foreign Affairs Minister Naledi Pandor said in a statement to the press following the ruling.
Even though the ICJ’s provisional decision did not explicitly call for a ceasefire, it actually requires one. It also bolsters the ceasefire campaign and the international pressure in support of Palestinian liberation as it recognizes the fundamental human rights of Palestinians.
South Africa’s ministry of foreign affairs described the decision as “a decisive victory for the international rule of law and a significant milestone in the search for justice for the Palestinian people.”
Lawyers for Palestinian Human Rights called the ICJ’s decision “a much-needed light in the darkness,” adding, “It is a historic day for clearly recognising the fundamental human rights of Palestinians, including their fundamental right to life, and an important vindication of the vital resort to law to uphold fundamental rights.”
Former UN Special Rapporteur on Human Rights in the Occupied Palestinian Territory Richard Falk said the decision “marks the greatest moment in the history of the [court]” because “it strengthens the claims of international law to be respected by all sovereign states — not just some.”
Israel Attempts to Mitigate Damage to Its Global Standing on the World Stage
Not surprisingly, Israel rejected the decision of the World Court. Netanyahu called it “outrageous” and characterized the charges of genocide against Israel as “unfounded.” National Security Minister Itamar Ben Gvir labeled the ICJ “antisemitic,” adding, “This court does not seek justice, but rather the persecution of Jewish people.… Decisions that endanger the continued existence of the State of Israel must not be listened to.”
Even before the ICJ decision was announced, Israeli leaders were doing fancy footwork to try to contain the anticipated fallout and defend the idea that Israel had ordered increased humanitarian aid to Gaza.
In anticipation of the ICJ decision, Israel declassified more than 30 secret orders of government and military leaders that Israel says rebut South Africa’s charge that it committed genocide in Gaza. Israel claims the documents actually show that its government attempted to reduce civilian casualties.
The documents included summaries of cabinet meetings in late October, in which Netanyahu ordered supplies of aid, water and fuel to be delivered to Gaza. He told the government to determine whether “external actors” could establish hospitals to treat Palestinians in Gaza, and possibly moor a hospital ship off the coast.
Minutes of a November 14 cabinet meeting say Netanyahu continually stressed the need to significantly increase humanitarian aid to Gaza. Another document said, “It is recommended to respond favorably to the request of the U.S.A. to enable the entry of fuel.” Minutes of a November 18 cabinet meeting say Netanyahu emphasized “the absolute necessity” of continuing to allow basic humanitarian assistance into Gaza.
“But the dossier is also highly curated and omits most wartime instructions given by the cabinet and the military,” according to The New York Times. “The available documents do not include orders from the first 10 days of the war when Israel blocked aid to Gaza and shut off access to the electricity and water it normally provides to the territory.”
“When you’re trying to prove that you didn’t give an order to do something, obviously you’re going to show orders that indicate something else,” William A. Schabas, international law professor at Middlesex University in London and author of Genocide in International Law, told the Times. “And if there is an order to do something or a plan to do it, you’re not going to provide that.”
In its ruling, the ICJ acknowledged Israel’s claim “that it has taken certain steps to address and alleviate the conditions faced by the population in the Gaza Strip.” But, the court added, “While steps such as these are to be encouraged, they are insufficient to remove the risk that irreparable prejudice will be caused before the Court issues its final decision in the case.”
The US Cuts Funding for Humanitarian Aid to Gaza in the Wake of the ICJ’s Ruling
The same day the ICJ ruled that Israel must allow humanitarian assistance to Palestinians in Gaza, Israel charged that 12 staff members of the UN Relief and Works Agency (UNRWA) were involved in the October 7 attacks by Hamas. UNRWA fired nine of the suspected offenders, is investigating two of them and one is dead. Nevertheless, the U.S. and several of its allies (which provide 60 percent of UNRWA’s funding) immediately suspended funds to the 13,000-employee agency on which nearly all Palestinians in Gaza depend for survival, including food and shelter.
UN Secretary General Antonio Guterres said in a statement that, “The abhorrent alleged acts of these staff members must have consequences, but the tens of thousands of men and women who work for UNRWA, many in some of the most dangerous situations for humanitarian workers, should not be penalized. The dire needs of the desperate populations they serve must be met.”
By defunding humanitarian aid to the Palestinians under siege in Gaza, the U.S. is accelerating Israel’s genocide.
South Africa made a powerful and compelling case to the ICJ that Israel is committing genocide against the Palestinian people in Gaza. The application South Africa filed with the court places Israel’s genocidal acts and omissions in the broader context of Israel’s 75-year apartheid policy, 56-year occupation and 16-year blockade of Gaza. This siege was described by Juliette Touma, director of communications for UNRWA, as a “silent killer of people.”
South Africa told the ICJ that it “unequivocally condemned the targeting of civilians by Hamas and other Palestinian armed groups and the taking of hostages on 7 October.” But, it added, “no armed attack on a State’s territory no matter how serious — even an attack involving atrocity crimes — can provide any justification for, or defence to” genocide. Israel “has crossed this line,” South Africa said.
Israel responded by placing responsibility on Hamas for the situation in Gaza. Israel argued that international humanitarian law is the relevant framework — that Hamas committed war crimes. In Israel’s view, this is not a genocide case; if anyone was the victim of genocide, Israel claims it was on October 7 when Palestinian resistance forces allegedly killed 1,200 people. However, Hamas is not part of this case, because it is not a state party to the Genocide Convention.
U.S. leaders’ decision to cut humanitarian aid to Gaza and amplify Israel’s charges against the UNRWA on the very day that the ICJ released its ruling implicitly underscores the message that the U.S. backs Israeli narratives that push for a constant and single-minded return to the attack from Hamas on October 7, rather than an ongoing accounting of the genocidal campaign Israel has been waging in response ever since.
The Biden Administration Is Violating Its Arms Transfer Policy and the Genocide Convention
The Biden administration is already under ongoing scrutiny both internationally and domestically. Just hours after the ICJ announced its landmark ruling, a historic federal court hearing in a lawsuit brought by Palestinians against President Joe Biden, Secretary of State Antony Blinken and Defense Secretary Lloyd Austin for failure to prevent genocide and complicity in genocide was publicly broadcast.
But no matter how the U.S. federal court case goes, the U.S. will undoubtedly continue to face international condemnation for its violation of the Genocide Convention, as well as violation of its own arms transfer policy, in the wake of the ICJ’s provisional decision. The ICJ’s ruling also brings into focus how the U.S. government, which provides an annual $3.8 billion to Israel and has requested congressional approval for $14 billion more, is in violation of the Biden administration’s own U.S. Conventional Arms Transfer Policy, which states:
No arms transfer will be authorized where the United States assesses that it is more likely than not that the arms to be transferred will be used by the recipient to commit, facilitate the recipients’ commission of, or to aggravate risks that the recipient will commit: genocide; crimes against humanity; grave breaches of the Geneva Conventions of 1949, including attacks intentionally directed against civilian objects or civilians protected as such; or other serious violations of international humanitarian or human rights law, including serious acts of gender-based violence or serious acts of violence against children.
President Biden’s policy also says that the assessment of whether the recipient (Israel) is committing human rights violations “shall include consideration of the available information and relevant circumstances, including the proposed recipient’s current and past actions.”
The ICJ made extensive factual findings about Israel’s conduct in Gaza and cited dehumanizing language by high Israeli officials and statements of alarm by several UN officials. The court essentially accepted the bulk of South Africa’s detailed accusations against Israel. These findings should serve as a warning to the Biden administration that its continued provision of weapons to Israel would violate both the Genocide Convention and the Arms Transfer Policy.
Copyright Truthout. Reprinted with permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. She is founding dean of the People’s Academy of International Law and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” Radio.