ICJ ruling was imperfect but still a win for Israel | Maqvi News

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By Ysabella Elisheva Hazan and Rick Aiyer

The ruling by the International Court of Justice (ICJ) in South Africa’s case against Israel makes clear there is no genocide taking place in Gaza.

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Yet there are still some who mistakenly believe that misrepresenting the ruling to make it more damaging to Israel is a meaningful way to fight for Palestinian rights. It’s dishonest at best and counterproductive to the prospects for sustainable peace at worst.

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To be sure, the ruling was far from “good.” “Good” would have meant tossing out the case, which former Canadian Supreme Court justice Rosie Abella rightfully lambasted as “an outrageous and cynical abuse of the principles underlying the international legal order.” Yet, in the words of Hanan Melcer, former deputy president of the Israeli Supreme Court, the ICJ’s decision was “less awful than it could have been.”

Less awful, indeed, because the ICJ rejected South Africa’s prime goal — to tie Israel’s hands behind its back in the form of a unilateral, judicially-imposed ceasefire, instead of working towards a meaningful peace predicated on the release of the hostages, the surrender of Hamas and the implementation of a governance apparatus in Gaza that is more focused on governing than on killing Israelis.

Yet imperfect, because contrary to the demands of the law as applied to the facts, a majority of the court ruled that the “conditions required (…) for it to indicate provisional measures are met.”

Notably, Judge Julia Sebutinde of Uganda (the first African woman to sit on the ICJ) dissented on this point, holding that South Africa’s allegations were not capable of falling within the scope of the Genocide Convention, particularly because there was nothing to show that “Israel’s conduct in Gaza is accompanied by the necessary genocidal intent.”

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In a similar vein, Holocaust survivor and ad hoc ICJ judge Aharon Barak of Israel aptly concluded that South Africa’s allegations “wrongly sought to impute the crime of Cain to Abel.” Lest anyone questions his motives, we recall that this is the same individual who led Israel’s Supreme Court for more than a decade — a court that has, among other things, ordered the Israel Defence Forces to repair water pipes damaged by army tanks in Gaza, to provide humanitarian aid to civilians, and to halt hostilities to allow for the burial of the dead.

Though provisional measures of any sort were unwarranted — because there is no plausible violation of the Genocide Convention vis-à-vis Gaza — the ICJ’s decision is ultimately a win for Israel on numerous fronts.

Foremost, nothing in the ICJ’s decision concludes — or even implies — that Israel has violated its obligations under the Genocide Convention; such a finding, as the court stressed, can only be made on the merits. The ICJ did not (indeed, at this stage could not) rule on the merits of South Africa’s allegations, or even the threshold question of whether the court has jurisdiction to deal with those allegations in the first place. Indeed, it is presumable that the nature of the preliminary measures ordered would have taken a much different tone if the court truly believed that Gaza was experiencing, or at risk of experiencing, a genocide.

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Second, the court stressed that “all parties” to the conflict in Gaza (including Hamas) are bound by international humanitarian law. The court expressed “grave concern” about the fate of the hostages abducted by Hamas on Oct. 7 and called for their “immediate and unconditional” release. In other words, the ICJ rejected attempts by Hamas (and others) to condition the release of the hostages on such concessions as a ceasefire or the release of Palestinian prisoners in Israel — prisoners who, unlike the innocent kidnapped Israelis, were arrested according to the rule of law and enjoy robust due process guarantees.

Third, the ICJ unanimously rejected the crux of South Africa’s claim, which sought an “immediate suspension” of Israeli military operations in Gaza. In so doing, the ICJ roundly reaffirmed Israel’s right to defend its citizens. States and other actors that have doubted — or, in some cases, actively denied — Israel’s right to self-defence in the wake of the harrowing atrocities of Oct. 7 must pay particular heed to this aspect of the court’s ruling.

Most significantly, the ICJ confirmed that death and suffering in Gaza — a tragic part of any war, compounded in this case by Hamas’s well-known modus operandi of hiding behind civilians — is in no way synonymous with genocide.

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Yes, the court ordered Israel to take “all measures within its power to prevent the commission of all acts within the scope of Article II of (the Genocide) Convention” — the headline now playing out in news media worldwide.

However, the court stressed that acts fall within the scope of Article II of the Genocide Convention only when committed with the intent to destroy in whole or in part a group as such. Evidently therefore, this order is in many ways redundant, and compliance therewith poses no difficulty for Israel. It has consistently conducted — and, it has repeatedly declared, will continue to conduct — its war in accordance with not only the precepts of the Genocide Convention, but also international humanitarian law more generally.

Indeed, it is abundantly clear that Israel’s war is directed only against Hamas and associated groups who wish to repeat the horrors of Oct. 7 “again and again.” It is in no way a war against the Palestinian people.

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This incontrovertible fact clearly reflects in Israel’s actions on the ground. In the words of Judge Sebutinde, South Africa’s allegation of genocidal intent is “negated by (1) Israel’s restricted and targeted attacks of legitimate military targets in Gaza; (2) its mitigation of civilian harm by warning them through leaflets, radio messages and telephone calls of impending attacks; and (3) its facilitation of humanitarian assistance.” And further, that “the scale of suffering and death experienced in Gaza is exacerbated not by genocidal intent, but rather by (…) the tactics of the Hamas organization itself which often entails its forces embedding amongst the civilian population and installations, rendering them vulnerable to legitimate military attack.”

In sum, the ICJ’s decision merely reminds Israel of its existing obligations.

The legal question of whether the ICJ was entitled to give such a reminder can be left for another day. What is most important today is that the court has reaffirmed Israel’s right to rescue its hostages and protect its citizens.

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