EDITORIAL: ICJ genocide ruling leaves Israel under a dark cloud

The Court implicitly accepted Israel’s right to self-defence but cast doubts on the legal and moral conduct of the war on Hamas.

Israel has escaped having its war against Hamas labelled as genocidal, at least for now.

The interim judgement released by the International Court of Justice (ICJ) on Friday did not find a prima facie case of genocide, a verdict that would have enabled the Court to demand a ceasefire.

But it did find the claim that Israel is engaging in genocidal acts was “plausible”, and it ordered Israel to act to prevent war crimes and alleviate Gaza’s humanitarian crisis.

The ongoing case leaves Israel under a dark cloud, increasingly isolated internationally as it prosecutes a mission to destroy Hamas that is becoming increasingly impossible to conduct morally or to conclude successfully.

That the ICJ did not order a ceasefire is an implied recognition of Israel's right to self-defence in the wake of the Hamas attacks on October 7 last year.

But Israel has been put on notice that the court does not think it is doing enough to protect civilians, who are facing widespread displacement, starvation, and health crises. Blocking humanitarian aid is among the acts that could be labelled genocidal.

ICJ President Judge Joan Donoghue said the court cannot make a final determination right now on South Africa’s allegation that Israel is guilty of genocide. But she said given the deteriorating situation in Gaza, the court has jurisdiction to order measures to protect Gaza's population from further risk.

These orders are essentially requiring Israel to do what it mostly claims it is doing anyway. Israel must:

South Africa is claiming the ICJ’s orders as "a decisive victory". Israel says the Court “justly rejected” a “vile attempt” to deny its right to self-defence.

In fact, neither country is a clear winner, but it is Israel that comes away from this judgement most damaged.

The continuing investigation means the genocidal label will continue to hover over Israel’s actions, delivering ammunition for the BDS movement and the Free Palestine protesters whose chants of “From the River to the Sea” are in danger of becoming as ubiquitous as the anti-apartheid movement of the 1980s. This, of course, is precisely what South Africa wants.

With these orders the damaging positioning of Israel as a rogue state has moved from being a platform of the Arab bloc to a potential mainstream label. Most of the orders were passed 15-2 with only judges from Uganda and Israel dissenting. On two orders, even Israel’s judge Aharon Barak assented.

No matter if the genocide charge ultimately does not stick; the smell will remain.

Israel must and should abide by these orders. It should not (and may not) need orders to do so.

But it must at least be acknowledged that Israel is required to abide by international law while facing an enemy that will not. A terrorist organisation with an unabashedly genocidal charter, Hamas is beyond the reach of the ICJ.

The asymmetry makes the question of what constitutes a proportional response to October 7 complicated. On the numbers, the estimated 26,000 deaths of Palestinians in Gaza are wildly disproportionate to the 1200 Israelis killed on October 7. But the numbers are meaningless. Hamas has no commitment to moral warfare – it targets civilians, rapes women and kidnaps children. Israel’s war of self-defence is not retaliation, let alone proportional response, it is a mission to destroy Hamas so it cannot repeat October 7.

This week’s revelations that Hamas is embedded even within the United Nations relief agency UNRWA are a reminder of the impossibility of Israel’s position.  

There is no way of knowing where this enemy begins and ends, no way of separating Hamas from other Gaza residents, and therefore no way of conducting a war which distinguishes between combatants and civilians.

Israel remains trapped in a war started by Hamas which has no realistic end, pursuing an elusive and probably undefeatable enemy, with no plan for what will become of Gaza when the war ends.  

The ICJ orders may do some good. Israel will need to let more humanitarian aid through, having been advised that blockades on basic supplies could be treated as genocidal acts.

The order on incitement may prompt the Netanyahu government to rein in its rabid coalition partners and stop the intemperate statements of ministers. Donoghue quoted Defence Minister Yoav Gallant’s call for a complete blockade on the grounds that it is dealing with “human animals”. Ben-Gvir’s conference on Sunday night calling for mass expulsion of Palestinians from Gaza shows this incitement has not stopped.

The pressure on Israel may affect the negotiations for the release of the hostages. Israel has offered a two-month ceasefire in exchange for hostages, Hamas is demanding an indefinite ceasefire. A deal, if it can be agreed upon, could be a path to ending the war.

But the tarnishing of Israel’s reputation will also give succour to Hamas and further entrench the lie that Israel is the sole aggressor in this entrenched and impossible conflict.

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