Mouin Rabbani is a non-resident fellow at DAWN. He is also a co-editor of Jadaliyya and a non-resident fellow at the Center for Conflict and Humanitarian Studies.
The initial ruling on Friday by the International Court of Justice on charges of genocide against Israel made history, and that is not hyperbole. The United Nations top court in The Hague found it "plausible" that Israel has committed acts against Palestinians in Gaza that violate the Genocide Convention. Although its ruling is not a verdict yet on whether Israel has committed genocide, which could take years for the court to decide, the ICJ ruled that it has jurisdiction to move forward with the case that was brought by South Africa, dismissing Israel's main argument.
The court issued provisional measures to protect Gaza's devastated population from the risk of genocide—among them, that Israel must ensure "with immediate effect" that its military forces do not commit any of the acts prohibited by the Genocide Convention, and that Israel must "take all measures" to prevent and punish the direct and public incitement to genocide against Palestinians in Gaza. Each of the six provisional measures passed with overwhelming support by the court's 17 judges, in votes of 16-1 and 15-2.
At this stage of the proceedings in The Hague, the case boiled down to a single issue: whether the ICJ determined that South Africa had presented a plausible accusation that Israel is committing genocide and, on this basis, allowed the case to move forward to a full hearing. Everything else is secondary. On this crucial point, the court's verdict was unambiguous: the arguments presented by South Africa before the ICJ earlier this month were sufficiently compelling, and Israel's rebuttal and denials unconvincing. The ICJ will now conduct a full and proper hearing to determine whether Israel is not only plausibly accused, but substantively responsible, for the crime of genocide in Gaza.
At this stage of the proceedings in The Hague, the case boiled down to a single issue: whether the ICJ determined that South Africa had presented a plausible accusation that Israel is committing genocide.
- Mouin Rabbani
This is where history was made. As of Jan. 26, 2024, Israel and its Western sponsors can no longer use the Holocaust to shield themselves from accountability for their crimes against the Palestinian people. Raz Segal, a leading professor of Holocaust and genocide studies, recently made the point that the state of Israel was born in impunity. "The idea that the Jewish state could commit war crimes, let alone genocide, becomes from the beginning an unthinkable idea," he said. "Impunity for Israel is baked into the system."
No more.
The late Edward Said described the Palestinian people as "the victims of the victims, the refugees of the refugees," as he wrote about the difficulties many in the West had conceiving of Israel as a state capable of war crimes and crimes against humanity, given its establishment in the aftermath of the Holocaust. No more. As of today, Israel is associated with the crime of genocide as plausible perpetrator, not victim. Israel's policies toward the Palestinian people will henceforth be judged on their own merits rather than against the long shadow of European history.
The ICJ today redefined "never again." It is no longer a slogan that can be used by Israel to commit and justify crimes against others. It is now one that applies equally to Israel's actions—and to Palestinian victims.
The judges at the ICJ are not diplomats who follow instructions from their governments. It was nevertheless particularly satisfying to see the court's ruling delivered by the presiding American judge, Joan E. Donoghue, who voted in favor of each of the court's provisional measures. In delivering the ruling, Donoghue read out several statements by Israeli officials since Hamas' attack on Oct. 7 that South Africa had presented as evidence of Israel's genocidal intent. It was a fitting retort to U.S. Secretary of State Antony Blinken's rush to judgement that South Africa's case was "meritless." Did Blinken even bother to read South Africa's submission to the ICJ? He probably considers any accusation against Israel, any challenge to its impunity, any effort to hold it accountable for its crimes, to be by definition meritless. Is it any surprise that the State Department, in a statement about the ruling, still called the allegations of genocide "unfounded"?
Israel's policies toward the Palestinian people will henceforth be judged on their own merits rather than against the long shadow of European history.
- Mouin Rabbani
The provisional measures ordered by the court may be legally binding, but the ICJ should not be confused with the U.N. Security Council. The court itself has no way to enforce its rulings; it is up to the Security Council to pass a resolution enforcing them. Yet the six provisional measures issued to Israel are still significant, including that Israel must report back to the court in 30 days on how it is adhering to them. In other words, Israel is in the dock and is being carefully watched. The fact that the court did not order a cease-fire as South Africa requested—which would be simply ignored by Israel, with the support of its Western sponsors—was expected and hardly what this case was really about.
Finally, the ICJ ruling also imposes legal obligations on all other signatories to the Genocide Convention, including the United States and countries in Europe. The sun does not rise in the west, and Western hypocrisy—the foundational principle of its "rules-based international order"—will not end anytime soon. But the ICJ ruling lays the ground for ultimately holding Israel's patrons and backers responsible too.
As Palestinian activist and politician Mustafa Barghouti described the ruling, "for the first time in 75 years, Israel is stripped of its impunity in front of international law." It is a victory for accountability, long overdue.
