International Court of Justice Makes Historic Rulings For Palestinians Against Israel – South Africa v. Israel

January 26, 2024 – Today, the ICJ ruled on South Africa’s request for provisional measures against Israel in its pending charges against them for acts of genocide. The ICJ found that South Africa has proven a plausible case of genocide against Israel and that several of the restraining measures against Israel are warranted. This is a historic ruling for Palestinians that represents a nearly unanimous ruling by the highest international court against Israel’s alleged acts of genocide in Gaza.

What did the ICJ Rule?

Israel had asked the Court not to entertain South Africa’s case against them for genocide. The ICJ instead stated they would not grant Israel’s request because Israel’s acts and omissions plausibly fall under the Genocide Convention. The evidence-based accusations against Israel stand and will keep the international legal focus on their plausible genocide for years.

The ICJ found that:

  • Palestinians are a distinct and protected group under the Genocide Convention, and that the 2 million Palestinians in Gaza are a substantial part of that protected group.
  • Palestinians have a right to be protected from acts of genocide and that South Africa has a right to seek Israel’s compliance with the ICJ’s restraining measures.
  • Israel’s claims that it is taking steps to alleviate humanitarian suffering and to investigate incitements to genocide are insufficient.

The ICJ ordered that:

  • Israel must take all measures to prevent acts of genocide. Israel must ensure that their military forces do not commit acts of genocide and they must prevent and punish incitement to genocide. This includes not killing members of the group, not causing serious bodily or mental harm to members of the group, not inflicting conditions on the group that would bring about its physical destruction, and not imposing measures intended to prevent births.
  • Israel must take immediate measures to enable the provision of services and humanitarian aid.
  • Israel must provide a report on all measures it is taking within one month for review.

What the ICJ Rulings Mean

The ICJ’s findings and rulings were clear: South Africa’s evidence and argument that Israel is committing genocide were compelling, and Israel’s denials and rebuttal were meritless. In the lead up to this ruling many believed that the Court would be split politically, as the United Nations General Assembly and Security Council often are. People assumed that the judges from the USA, France, Germany, Australia, Japan, India, and perhaps some others would “vote” in favor of Israel, as UN General Assembly votes always split on political lines.

But the legal dispute over whether Israel is committing genocide in Gaza, and what restraining measures are required to prevent continued potential acts of genocide, is only a legal question. Judges at the ICJ, like judges anywhere else in the world are not political. They are supposed to consider only the law and the facts of the case objectively and apply the law to the facts before them.

Taking Israel’s attacks against Gaza out of the political context and into the courtroom, it was clear: Israel’s killing of over 25,000 people, displacement of 2 million people, destruction of infrastructure, restriction on humanitarian aid, and indiscriminate use of 2000lb bunker buster bombs in civilian areas are, at the very least, plausibly acts of genocide.

In allowing the charges against Israel to stand and ordering restraining measures to address the real threat of genocide, Israel’s impunity on the international stage has ended. It will be in stark legal focus as a potential perpetrator of genocide for several years, and in the broad light of the courtroom, as we have seen today, political rhetoric and propaganda will carry no weight.

This is a significant and unprecedented rebuke of Israel, which has operated with total impunity against Palestinians for decades. It is a notice to Israel and the world that the laws of war are being severely violated and any who are aiding them could be complicit.

What the ICJ Rulings Don’t Mean

Some are criticizing the rulings for failing to call for an immediate halt in Israel’s military actions in Gaza. But in ordering Israel to not kill any more Palestinians, to not inflict serious bodily or mental harm on Palestinians, and to not inflict conditions that would bring about their physical destruction, they have essentially called for the only ceasefire that really matters—a halt to Israel’s indiscriminate attacks and violations of the laws of war.

The ICJ ruling does not call for a ceasefire. It would not be enforceable even if it had. Its value lies in its ability to shift public, institutional, and international sentiment, regarding Israel’s actions against Palestinians. The ICJ cannot stop a genocide, but its rulings can provide the authority and precedent to demand that governments do.

Why the Rulings Matter

These rulings are a clear indictment of Israel’s violations of the laws of war. There is a reason that while Israel’s allies have been politically supportive of their campaign, no military leaders or commentators have spoken in defense of their campaign. Israel has one of the most elite militaries in the world with nearly endless access to funding and high-tech weapons systems. Other militaries must take care to precisely attack military targets and avoid civilian casualties. Israel has grossly conducted its total destruction of Gaza without regard for those rules.

Now that that ICJ has ruled that there is a prima facie case of genocide and has ordered restraining measures against Israel, every country that is party to the Genocide Convention is responsible for abiding by these rulings. Israel has already acted counter to the rulings, even just hours after they were announced. It is the responsibility of all governments to sanction Israel for their violations of the laws of war and their failure to abide by the ICJ’s order, just as governments have sanctioned any other country that has committed similar acts. This is a legal victory for Palestinians that should be used in every venue to demand compliance with the ICJ’s rulings and ensure governments are not supporting its violations.

Sufia Khalid is a Staff Attorney in MLFA’s Federal Criminal Defense department where she represents individuals unjustly and discriminatorily charged with national security related crimes, both at the trial level and in appellate courts around the country. Sufia previously worked in the Office of the Prosecutor at the United Nations criminal tribunal on war crimes committed by the Khmer Rouge, including genocide. She has a background in international law and public defense and has been with MLFA since 2019.