Israel’s Defence Minister, Yoav Gallant is in no doubt that the UN’s International Court of Justice (ICJ) is an anti-Semitic kangaroo court. He claims: “The International Court of Justice went above and beyond when it granted South Africa’s antisemitic request to discuss the claim of genocide in Gaza.”
His colleague, Itamar Ben-Gvir, Israel’s far-right National Security Minister, chipped in: “This court does not seek justice but, rather, the persecution of the Jewish people.”
They were reacting to the ICJ’s judgment, last week, that called on Israel to address multiple concerns in its war against Hamas. Israel is to halt attacks on Palestinian civilians; take action against any incitement against them; ensure the delivery of humanitarian aid; preserve evidence of any crimes; and submit a response to the court within one month.
On all counts, there was at least a 15-2 majority verdict. On two of them – on incitement and provision of humanitarian aid – the majority was 16-1 because Israel’s nominee, Aharon Barak, joined the majority. It was only Uganda’s nominee, Julia Sebutinde, who dissented on every count (she has since been disowned by Uganda).
In Israel, Barak (a Holocaust survivor and former chief justice) is being pilloried by the far right for voting for curbs on incitement and proportionate humanitarian aid.
The ICJ called on the incitement to stop after noting the words of Gallant describing Palestinians as “human animals” and those of the President of Israel, Isaac Herzog who, after saying there are no innocents in Gaza, declared: “And we will fight until we break their backbone.”
However, there have also been critical reactions that called the decision tame because it didn’t demand a ceasefire (which the ICJ had demanded when Russia invaded Ukraine).
These critics say all the ICJ did was demand that Israel comply with existing law. In practice, the critics say, Israel has been given the licence to continue because it will take years to compile and judge the evidence of any crimes it may have committed.
So what is the real impact of the ICJ’s ruling? Deciding that requires us to disentangle the various accusations made by all sides.
First, Israel contended that the ICJ had no business hearing the case because the claims of genocide were baseless. It was supported by the likes of the US, Germany, France and the UK.
Despite this, the ICJ decided to hear the case. It then issued a call for Israel to make sure no crimes are committed and to preserve any evidence, if there were. In other words, the South African case was not baseless after all.
Israel has no good independent measure of civilians killed- Ranier Fsadni
That’s a slap in the face of all those states that dismissed the case, to begin with. They showed appalling judgement. All these countries have now called on Israel to respect the ICJ ruling. Had they done otherwise, they would have lost the last shreds of moral authority they have left in the eyes of the Global South.
Second, the ICJ could not call for a ceasefire. Hamas is not a member of the ICJ and, thus, falls outside the court’s jurisdiction. The court could hardly demand that only Israel stops its military operation.
Third, the ICJ did not find Israel guilty of genocide. That was not its task, which was to decide if there was enough evidence of a risk of genocide before proper investigations were complete.
In her dissent, Sebutinde did not query the facts presented by South Africa. She questioned whether they showed genocidal intent, while allowing that there could be grave violations of international humanitarian law. Her dissent was based on saying that another court should hear the case.
Fourth, the ICJ relied on evidence given by various UN agencies and figures given by the authorities in Gaza. This, too, has been blasted by one side of the ICJ’s critics. They say the figures are from tainted sources – since, for the Israeli far-right, the UN is anti-Semitic and the Gaza health authorities are part of Hamas.
But the ICJ did not ignore alternative figures. There are no Israeli counter-statistics. A journalist for +972 magazine, Yuval Abraham, has reported, based on two sources linked to Israeli intelligence, that the army finds the numbers provided by the Gaza health ministry reliable and “now regularly uses them internally in intelligence briefings”.
Israel has no good independent measure of civilians killed because many of the army strikes were conducted by destroying entire homes and families, without checking on collateral damage.
One source told Abraham:
“I don’t know how many people I killed as collateral damage. We only check that information for senior Hamas targets. In other cases I didn’t care. I immediately moved on to the next target. The focus was on creating as many targets as quickly as possible.”
The ICJ got it just right. It has left open the genocide question but it has given authoritative plausibility to Palestinians’ deep suffering and the risk they run of a colossal humanitarian catastrophe.
It has not tied Israel’s hands before its terrorist enemies. But it declared that it could not treat all civilians as terrorists. It bound Israel to report that it has taken all the necessary measures to protect them.
And it has put Israel’s allies on notice. If there’s a plausible case that there are grave violations of international humanitarian law, if not the Genocide Convention, there’s also a plausible case that they, Israel’s military suppliers and unconditional apologists, are complicit in the crimes.