Israel passed its first major legal challenge at The Hague with a sigh of relief. Even though it was ordered by the International Court of Justice (ICJ) to prevent acts of genocide against Palestinians and do more to help civilians, the judges fell short of calling for an immediate ceasefire, as requested by the plaintiff South Africa.
The ruling handed down by ICJ President Joan Donoghue from the United States on January 26, which only pertained to South Africa’s request for provisional measures, is legally binding and without appeal, but the court has no way to enforce it.
Even though the ruling denied Palestinian hopes of a binding order to halt the war in Gaza, it nonetheless represented a legal setback for Israel, which had hoped to throw out a case brought under the genocide convention established in the ashes of the Holocaust. In soccer terminology, Israel received a yellow card but was spared, for now at least, a red card.
The United Nations’ highest legal body recognized that the situation in Gaza is catastrophic, noting that it was “at serious risk of deteriorating further” before the court delivers its final verdict on the charge of genocide- a process that could take years.
The court made several demands of Israel, broadly in line with most of the nine “provisional measures” demanded by South Africa.
By large majorities, the court’s 17 judges ruled that Israel should do everything in its power to avoid killing Palestinians, causing them serious bodily or mental harm, creating intolerable living conditions in Gaza, or deliberately preventing Palestinian births.
The court also said Israel should do more to “prevent and punish” public incitement to genocide, citing examples by President Isaac Herzog and Defense Minister Yoav Gallant. And there was a call for “immediate and effective measures” to address the humanitarian catastrophe in Gaza.
Israel has to present to the court a report within one month, outlining the steps it has taken to comply with the ruling.
The judges also called for Palestinian armed groups to release the hostages still held in captivity.
Judge Aharon Barak, the ad hoc judge appointed by Israel to the ICJ bench, voted against the order that Israel must take steps to prevent genocide, but voted in favor of the call for Israel to take measures against incitement to genocide and to provide aid to Gaza to alleviate the severe humanitarian conditions.
The decision by Uganda’s judge, Julia Sebuntinde, to vote against all the steps that Israel is required to take raised a few eyebrows. “In my respectful dissenting opinion the dispute between the State of Israel and the people of Palestine is essentially and historically a political one,” she stated. “It is not a legal dispute susceptible to judicial settlement by the court.”
She said that South Africa didn’t demonstrate that the acts allegedly committed by Israel were “committed with the necessary genocidal intent, and that as a result, they are capable of falling within the scope of the Genocide Convention”.
Reactions to the ICJ ruling on the Israel genocide case
Prime Minister Benjamin Netanyahu said the decision at The Hague “rightly rejected the outrageous demand to deny” Israel the right to basic self-defense to which it is entitled as a country. “The very claim that Israel is committing genocide against Palestinians is not just false, it is outrageous, and the court’s willingness to discuss it at all is a mark of disgrace that will not be erased for generations,” he said.
Netanyahu added that Israel will continue the war until “absolute victory,” until all hostages are returned and Gaza is no longer a threat to Israel.
Defense Minister Yoav Gallant said Israel “does not need to be lectured on morality” in order to distinguish between terrorists and the civilian population in Gaza. “The ICJ went above and beyond, when it granted South Africa’s antisemitic request to discuss the claim of genocide,” he said. “Those who seek justice will not find it on the leather chairs of the court chambers in The Hague - they will find it in the Hamas tunnels in Gaza, where 136 hostages are held, and where those who murdered our children are hiding.”
War cabinet member Benny Gantz (National Unity) stated that “when Israel was founded, we swore ‘Never Again.’ Now, we are keeping our promise and fulfilling our national and historical duty. According to international law, Jewish heritage and IDF morals. We will keep honoring this historic duty and standing by moral and legal principals – together.”
Opposition leader Yair Lapid (Yesh Atid) said that the court “should’ve rejected the petition immediately” and that it is “Israel’s right and duty to defend itself from the brutal evil that killed its civilians.”
The Prime Minister’s Office ordered ministers not to comment on the ICJ ruling, but this didn’t prevent National Security Minister Itamar Ben-Gvir, the outspoken leader of the far-right Otzma Yehudi (Jewish Strength) party, from writing on X: “Hague Shmague.”
“The decision of the antisemitic court proves what was already known: This court does not seek justice, but rather the persecution of Jewish people. They were silent during the Holocaust and today they continue the hypocrisy,” he said.
Israel’s Foreign Ministry stressed that Israel remains committed to abide by international law, and that this has “nothing to do with the court proceedings.” According to the ministry, “Israel’s war is against Hamas, not against Palestinian civilians.”
South Africa praised the ICJ ruling, calling it a “decisive victory for the international rule of law and a significant milestone in the search for justice for the Palestinian people.”
Palestinian Prime Minister Mohammad Shtayyeh said that “we would’ve expected the ruling to call for an immediate ceasefire, due to the terrible suffering of the Palestinian people and the daily massacre.” However, according to Shtayyeh, the fact that The Hague did not reject South Africa’s petition is an important step, because it puts Israel in the defendants’ seat – and this is the first time Israel is being accused of something like this at the ICJ.
In its request for interim measures, South Africa did not have to demonstrate genocide with conclusive proof, as it will in the later stage in the proceedings, and did not have to prove definitively that the ICJ had jurisdiction to hear the case under the 1948 Genocide Convention. Rather, it sought an interim injunction that comes with the much lower burden of proof regarding the plausibility of the claim. Simply stated, Pretoria wanted the court to find that international law requires Israel to end the war.
The second element of South Africa’s allegations, that Israel is committing state-led genocide, will now be examined by the judges in more detail in the coming months, and maybe years.
Israel often boycotts international tribunals or UN investigations, saying they are unfair and biased but this time Israel took the South African allegations seriously, sending a team of senior attorneys to put up a defense in The Hague. Jerusalem understands that the stakes are high: The ICJ’s ruling will influence how states and international organizations, and also world public opinion, view both the conflict in Gaza and, to some extent, Israel itself. A negative outcome could well prompt legal action against Israeli individuals in courts worldwide.
President Herzog said that there was “nothing more atrocious and preposterous” than the South African lawsuit. Netanyahu also issued a statement before the court convened. “This is an upside-down world — the state of Israel is accused of genocide while it is fighting genocide,” he said. “The hypocrisy of South Africa screams to the heavens.”
Both Israel and South Africa chose one judge on the ICJ panel and prime minister Netanyahu’s choice of Aharon Barak came as a bombshell to the right-wing in Israel. Barak, 87, was chosen because he is the best-known, most respected Israeli jurist in the world. He is considered one of the leading legal experts globally on issues of international law in the areas of terrorism and security. His many judicial opinions on Israeli security in the face of terrorism in the eyes of international law are studied in law faculties around the world, as well as by governments dealing with terror threats.
He is also a Holocaust survivor, having been smuggled out of the Kovno ghetto in Nazi-occupied Lithuania as a child in a sack of potatoes. That is likely to give his words a lot of symbolic weight.
But Barak is also considered the architect of Israel’s liberal judicial activism, which the current Netanyahu government tried, and failed, for a year to overturn with a radical judicial overhaul that caused bitter divisions in Israel and brought hundreds of thousands onto the streets in weekly protests.
Tally Gotliv, a lawmaker from Netanyahu’s Likud party, was livid. “Netanyahu with this decision has humiliated the right, humiliated his voters. He has no right,” she said.
For many on Israel’s right, Barak was public enemy number one and protests were held outside his home by supporters of the judicial overhaul, while Netanyahu remained silent. Now, in the middle of a war, the prime minister appointed Barak as Israel’s flak jacket at the ICJ, rejecting accusations of betrayal from the right.
“Despite the numerous disagreements over domestic issues, Barak has acted extensively on behalf of Israel on international issues,” Netanyahu said, justifying his decision.
The proceedings at The Hague began on January 11th with South Africa’s presentation. Pretoria’s justice minister spoke early in the session, emphasizing that his government “unequivocally condemned the targeting of civilians by Hamas and other Palestinian armed groups and the taking of hostages on 7 October 2023.”
However, the South African legal team did not characterize Israeli action merely as a response to those atrocities. Instead, it argued that the Israeli military campaign was part of an ongoing Nakba (catastrophe) against the Palestinian people through Israel’s colonization since 1948,” characterized by decades of apartheid.
“The scale of destruction in Gaza, the targeting of family homes and civilians, the war being a war on children, all make clear that genocidal intent is both understood and has been put into practice. The articulated intent is the destruction of Palestinian life,” said lawyer Tembeka Ngcukaitobi.
He said the case’s “distinctive feature” was “the reiteration and repetition of genocidal speech throughout every sphere of the state in Israel.”
The South African team linked political statements to behavior on the ground, quoting President Herzog’s comments, soon after October 7: “This rhetoric about civilians not aware, not involved, is absolutely not true.”
A video was shown to the court of Israeli soldiers dancing and singing, “We know our motto: ‘There are no uninvolved.’” and images of soldiers allegedly celebrating the destruction of apartment blocks and villages.
Noticeable by its absence was any acknowledgment of Israeli trauma, or of the deliberate Hamas strategy of using the civilian population of Gaza as human shields.
Arguing it was acting to defend itself and was fighting Hamas, not the Palestinian population, Israel called on the court to dismiss the case as groundless. “This is no genocide,” lawyer Malcolm Shaw said, stressing that Israel respects international law and had a right to defend itself.
“The appalling suffering of civilians, both Israeli and Palestinian, is first and foremost the result of Hamas’ strategy,” the Israeli foreign ministry’s legal adviser, Tal Becker told the court. “If there were acts of genocide, they have been perpetrated against Israel,” he said. “Hamas seeks genocide against Israel.”
Israel, its defense team argued, was doing what it could to alleviate the humanitarian suffering in Gaza. Israel insisted that it had warned civilians of imminent attacks and tried to get aid to Palestinians, only to have it stolen by Hamas. These actions, the Israeli legal team argued, were not those of a country with genocidal intent.
Israel’s representatives said South Africa had cherry-picked quotes, taking remarks out of context from mostly fringe politicians who have no decision-making authority. South Africa also failed to present other statements from senior leaders calling for humanitarian aid, as well as standing orders in the military to avoid unnecessary civilian casualties, Israel argued.
“To produce random quotes which are not in conformity with government policy is misleading at best,” Malcolm Shaw told the court.
The New York Times reported that Israel also declassified more than 30 secret protocols ordered by the political and military ranks, which it claims refute the charge that it committed genocide in Gaza and presented evidence that efforts are being made to reduce Palestinian deaths. The declassified documents were an attempt to prove Israel’s claim that everything politicians said in public is irrelevant, and goes against the executive decisions and official orders of the war cabinet and the IDF General Staff.
The showdown at The Hague, with the world watching, pitted a petitioner, whose history of apartheid grants it a unique moral high ground, against a defendant still reeling from the atrocities of October 7, which marked a poignant reminder of the near-total genocide of European Jewry in the Holocaust.
For the vast majority of Israelis, and decent people around the world who still possess a moral compass, the events at The Hague are a travesty: a theater of the absurd that attempts to turn the victim into the aggressor.
Israel has never had a policy of genocide, or anything remotely resembling genocide, towards the population of Gaza.
However, the high profile of the case is likely to send a signal to the world about the importance of upholding international legal norms, even during a war that was forced upon a state in response to the most savage atrocities. Whether it will actually force Israel to change the conduct of its military campaign remains in question. ■