What does the ICJ ruling mean for Gaza and Israel? Cambridge professor explains

The ruling of the International Court of Justice at The Hague is a victory for humanity, although not an immediate win for the people of Gaza.

The Court affirmed the value and legal protection of human life even in the harsh conditions of armed conflict. However, it did not take the further step of demanding an end to a conflict that has been seemingly characterised by conduct going against the grain of the most elementary principles of humanity.

South Africa as the applicant in this case was easily able to overcome the procedural hurdles. Clearly, there was a legal dispute concerning the application of the Genocide Convention in this instance. Even a third state not involved in the conflict has the legal power to bring an action before the Court in defence of the people of Gaza.

The next step was more tricky. South Africa had to make out at least a plausible case that Israel’s conduct falls within the ambit of the Convention – in essence that it is likely Israel’s actions amount to genocide.

What is genocide?

A campaign of genocide is targeted towards the destruction, in whole or in part, of a national, ethnical, racial or religious group. The Court found that the Palestinians are such a protected group. Moreover, the destruction of the Palestinians in Gaza would amount to an attack on a substantial part of that group.

But would the Court find, however provisionally, that Israel is in fact engaged in acts of genocide and then order it to stop a war based on such conduct? Such a finding against the original victim of the genocide of all genocides would have been hugely damaging for Israel.

The Court found a way out that will not satisfy everyone. It spent considerable time rehearsing the dramatic consequences of the conflict for the people of Gaza – more than 25,000, mainly civilians, killed, many more injured, and virtually the entire population forcibly displaced from their homes – homes that had been largely destroyed along with the civilian infrastructure. In addition, vulnerable civilians were denied humanitarian assistance, water and medical care.

The Court relied on the otherwise largely ignored reports and pleas of the UN Secretary-General, the top humanitarian and human rights officials in New York and Geneva, and the UN representatives in Palestine, finally taking these as fact.

The Court also noted that Israeli officials involved in the war effort had used dehumanising and potentially genocidal language against the Palestinians of Gaza. This would be crucial, as the Genocide Convention requires evidence of the specific intent to destroy a group in whole or in part.

What did the court decide?

All of this, taken together, would suggest that, indeed, Israel may be engaged in a campaign amounting to, or including acts of, genocide. However, the Court stopped short of such an express finding.

Instead, the Court moved on to consider whether there was a risk that the rights of the people of Gaza under the Convention might be “irreparably prejudiced” by further armed action while it considers the full case over the coming months.

In view of the Court, there was indeed a real and imminent risk of proscribed acts of genocide occurring, including killing members of the protected group, causing bodily or psychological harm to individuals, or denying to them what is necessary for their survival.

Some would assert that, in view of the character of Israel’s armed campaign thus far, the only way of removing that risk would be a comprehensive ceasefire. But it was clear that the Court would not make such an order – an order it had not hesitated to impose on Russia in relation to its armed invasion of Ukraine.

The difference is that Russia had formally justified its invasion as a necessary step to end a supposed genocide of Russian-speakers in Ukraine. As the Court had found no indication whatever that Ukraine had committed any acts of genocide, this meant that Russia had no justification to use force and could be ordered to withdraw.

Why didn’t the court rule that this was genocide?

In this instance, few would doubt that Israel was entitled to defend itself against the outrage perpetrated by Hamas on 7 October. The issue is not the armed campaign itself, but the way it is being fought.

Hence, the Court ordered Israel to take all measures in its power to ensure that genocidal acts do not occur and to prevent and punish acts of incitement to genocide. Israel must report to the Court on acts taken in compliance with this binding order within one month.

In short, the Court has defended the prohibition of genocide in principle, although most likely not in actual fact. It has merely implied that Israel’s conduct can be plausibly considered genocide, rather than saying so outright, and shied away from the issue of a ceasefire.

Still, it would be unrealistic and unfair to expect the Court to do more. It can confirm the law, but it is for states, including the permanent members of the UN Security Council, to enforce the boundaries of humanity.

Marc Weller is professor of international law and constitutional studies at the University of Cambridge, a former UN senior mediation expert and has served as senior adviser in many international peace negotiations