Michael Lynk served as the United Nations Special Rapporteur for human rights in the occupied Palestinian territory, from 2016 to 2022. He is a non-resident fellow at DAWN.
Genocide is a fearsome word. It was coined in 1944 by Raphael Lemkin, a Polish Jewish lawyer who lost much of his family in the Holocaust, combining genos (Greek for race or tribe) with cide (Latin for killing) to describe what has become known as the "crime of crimes." Lemkin's persistent lobbying for the inclusion of genocide as a crime under international law was first recognized by the United Nations General Assembly in 1946, when it unanimously voted to accept Resolution 96, declaring that "genocide is a denial of the right of existence of entire human groups." The resolution added that "such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations."
Two years later, in December 1948, the General Assembly adopted the Convention on the Prevention and Suppression of Genocide, the U.N.'s first human rights treaty. The Convention defined genocide as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:"
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Since then, the Genocide Convention has been ratified by 153 states. Genocide is distinct from other atrocity crimes, such as war crimes and crimes against humanity, by the fact that it requires persuasive proof of the special intent "to destroy, in whole or in part, a group." Mass killings are commonly associated with genocide, but it is possible to commit mass killings—such as the Allied bombing of Dresden in World War II—without intending to commit genocide—the physical destruction of the German people—just as it is possible to commit genocide without necessarily engaging in mass killings, such as the incitement of genocide without success, or forcibly transferring children of the target group to another group with genocidal intent.
In its 84-page application in December to the International Court of Justice, the highest court in the United Nations system, South Africa alleged that Israel had breached its obligations under the Genocide Convention through the conduct of its war on Gaza. South Africa was able to assert legal standing to bring the application against Israel because both states are signatories to the Convention, which contains the obligation on every state signatory to prevent genocide as an erga omnes responsibility wherever and whenever genocide may be occurring.
When the ICJ delivered its remarkable judgement, its measured tones masked a damning verdict.
- Michael Lynk
In its oral arguments for the case in The Hague in January, South Africa laid out the scale of the death, destruction, displacement and suffering endured by the 2.2 million Palestinians in Gaza from Israel's war, which it launched in the aftermath of the carnage committed by Hamas and other Palestinian armed groups in southern Israel on Oct. 7. In requesting "provisional measures" from the ICJ at this stage of the proceedings—similar to an interim injunction in a court in North America—the legal bar that South Africa had to meet was relatively low. Was it plausible that Israel's military actions in Gaza since October amounted to genocide?
To do so, South Africa had to satisfy two related requirements: that the acts committed by Israel, particularly the civilian killings and injuries, and the devastation of the civilian infrastructure, and the intentions attributable to Israeli political and civilian leaders together are plausibly contributing to the destruction, in whole or in part, of an identifiable group—namely, the Palestinians in Gaza.
Eloquence in the face of horror was woven throughout South Africa's arguments. In her oral submissions to the Court, Blinne Ni Ghrálaigh, the Irish human rights lawyer representing South Africa, outlined the consequences of the international community's inability to halt a genocide in the making:
The international community continues to fail the Palestinian people, despite the overt dehumanizing genocidal rhetoric by Israeli governmental and military officials, matched by the Israeli army's actions on the ground; despite the horror of the genocide against the Palestinian people being livestreamed from Gaza to our mobile phones, computers and television screens—the first genocide in history where its victims are broadcasting their own destruction in real time in the desperate, so far vain, hope that the world might do something.
Gaza represents nothing short of a "moral failure," as described by the usually circumspect International Committee of the Red Cross.
She then reminded the Court that this case represented a pivotal challenge for the efficacy of international law itself: "Some might say that the very reputation of international law—its ability and willingness to bind and to protect all peoples equally—hangs in the balance."
In its oral arguments to the Court delivered the following day, Israel advanced two main claims. First, it insisted that South Africa did not have a "dispute" with Israel, and therefore the ICJ should dismiss the genocide application on this procedural ground. And second, it argued that throughout its military operations in Gaza since October, Israel has been acting strictly within the bounds on international law—and, more so, it was the victim, not the perpetrator, of genocide. In the words of Malcolm Shaw, a British barrister and legal academic arguing on behalf of Israel:
Allegations have been made which verge on the outrageous. The attack by Hamas on 7 October, with its deliberate commission of atrocities, clearly falls within the statutory definition of genocide. Israel's response was and remains legitimate and necessary. It acted and continues to act in a manner consistent with international law. It does so not in an unrestrained manner, but in investing unprecedented efforts in mitigating civilian harm, at cost to its operations, as well as alleviating hardship and suffering, with investment of resources and effort.
There is no genocidal intent here. This is no genocide.
When the ICJ delivered its remarkable judgement two weeks later, in late January, its measured tones masked a damning verdict. The Court largely accepted South Africa's narrative about Israel's conduct of its military operations against Gaza. It dismissed Israel's argument that there was no "dispute" between the two countries, holding that South Africa had issued a number of both bilateral and public statements since October that Israel's actions amounted to a violation of the Genocide Convention. In its view, this gave the Court jurisdiction to hear the merits of South Africa's claim. More importantly, the ICJ ruled that at least some of Israel's military operations in Gaza could plausibly amount to genocide under the Convention, opening the door for the order of provisional measures against Israel.
In assessing the plausibility of genocidal acts alleged by South Africa against Israel, the Court placed significant weight on the many statements issued by senior U.N. officials since October about the unfolding humanitarian calamity in Gaza. It expressly noted the extraordinary level of Palestinian casualties—25,700 dead and 63,000 injured at the time—along with the forced displacement of approximately 80 percent of Gaza's population and the destruction or damage to more than 360,000 housing units in the besieged territory. The Court then gave life to these statistics by quoting U.N. Under-Secretary for Humanitarian Affairs Martin Griffiths, who said that "Gaza has become a place of death and despair" and that "Gaza has simply become uninhabitable." The Court also cited the World Health Organization's warning that "an unprecedented 93 percent of the population in Gaza is facing crisis levels of hunger, with insufficient food and high levels of malnutrition."
All of this, in the Court's view, demonstrated that a "catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court reaches its final judgement."
The ICJ then turned to assess whether the plausibility of genocidal intent had been established by South Africa. In its December application, South Africa had provided 35 quotes from senior Israeli political and military leaders laced with dehumanizing language toward the Palestinians. The Court specifically cited statements from three Israeli leaders: President Isaac Herzog; Defense Minister Yoav Gallant; and Israel Katz, then the minister of energy and infrastructure and, since January, the foreign minister. All three statements were graphic, with Katz's comment on X, formerly Twitter, in October particularly so: "We will fight the terrorist organization and destroy it," he said. "All the civilian population in Gaza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world."
Implicit in the Court's ruling was the critical weakness at the core of Israel's case: its inability to provide any persuasive answer to South Africa's abundant evidence of indiscriminate death and destruction in Gaza. While the ICJ came to no conclusions about whether a genocide is actually occurring in Gaza—that will be determined only after a full hearing by the Court into South Africa's allegations, expected to last three to four years—it was entirely unmoved by Israel's assertion that its conduct of the war has been within the bounds of international law and that it had been doing its utmost to avoid civilian deaths.
Taken together, the Court ruled that the factual and intentional evidence laid out in the arguments satisfied the test for the protection of rights claimed by South Africa's application. The Court issued six provisional measures to Israel, among them that it must to "take all measures within its power to prevent the commission of acts" in Gaza that violate the Genocide Convention; that it "take all measures" to prevent and punish the direct and public incitement in Israel to commit genocide against Palestinians in Gaza; and that it "take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance" into Gaza. In addition, the Court called upon Hamas and other armed groups in Gaza to immediately and unconditionally release the remaining Israeli hostages they are holding.
The ruling has deeply blemished the reputation of those countries—the U.S. most of all—that have backed Israel politically and militarily throughout the war while belittling South Africa's case before the ICJ.
- Michael Lynk
These are authoritative orders, and they are legally binding under international law. Particularly striking was the size of the majority for each provisional measure. The judges on the Court voted either by a 15-2 or 16-1 majority for these measures. All six elected judges from the Global North—the United States, France, Germany, Japan, Australia and Slovakia—joined seven of the eight elected judges from the Global South (only the Ugandan judge dissented) and the Russian judge in endorsing the orders. The ad hoc judge from South Africa, specifically brought in for the case, voted in favor of the orders, and even the ad hoc Israeli judge, Aharon Barak, voted in favor of the order for humanitarian assistance.
Yet missing among the Court's provisional measures was South Africa's request for the immediate suspension of Israel's military operations in and against Gaza. This is the hole in the heart of the ruling. Although South Africa correctly argued after the judgement that Israel could only comply with the provisional orders by agreeing to an immediate cessation of hostilities, the absence of a specific cease-fire order has allowed Israel the wiggle room to re-interpret the rulings in its own favor. After initially denouncing the Court's ruling as "antisemitic" and "outrageous," Israel then changed its tack to argue that, because its military operations have supposedly always been consistent with international law, it remains in compliance with the orders for provisional measures. Since the ICJ ruling, Israel's war on Gaza has continued, largely without restrain; in the 10 days following the decision, more than 1,220 Palestinians in Gaza were killed. Humanitarian agencies continue to issue stark bulletins about the impending threat of famine in Gaza.
The ICJ, a sober and restrained court that is very conscious of its place in the international system, has issued a formidable decision that matches the public temper of our times respecting the unfolding nightmare in Gaza. The Court's acceptance of the possibility of genocide being committed by Israel's military operations in Gaza has indelibly stained Israel's international standing, while lifting the promise of international law as a tool for justice rather than a cudgel for power.
Israel is not the only badly damaged party. The judgement has also deeply blemished the reputation of those countries—the United States most of all—that have backed Israel politically and militarily throughout the war while belittling South Africa's case before the ICJ. "Meritless" and "distracts the world," said U.S. Secretary of State Antony Blinken in early January about the proceedings in The Hague. "Completely unjustified and wrong," British Prime Minister Rishi Sunak stated at the same time. And while Blinken had expressed his concern in mid-November that "far too many Palestinians have been killed," he subsequently invoked emergency provisions twice in December that enabled tens of thousands of artillery shells and other munitions to be sent to Israel to replenish its depleted ammunition stock without Congressional oversight.
When the ICJ issued its ruling, the United States continued to speak from the same playbook. "There's no indication that we've seen that validates a claim of genocidal intent or action by the Israeli Defense Forces," said John Kirby, a National Security Council spokesperson a few hours after the decision. Yet within a day, the Biden administration had accepted the allegations by Israel that 12 staff members of the United Nations Relief and Works Agency—the U.N. organization that supports the Palestinian refugee population in Gaza and throughout the region—had been involved in Hamas's Oct. 7 attack, and quickly suspended its funding to UNRWA. Seventeen countries followed suit. Almost immediately, the political focus of the media in the United States and Europe switched to a new channel while the sky over Gaza remained crimson and black.
The cloud hanging over the ICJ ruling is whether those countries that have staunchly supported Israel through its war on Gaza—first and foremost, the United States—may face legal consequences for being complicit in international crimes, should genocide subsequently be established. After all, Article III (e) of the Genocide Convention expressly states that "complicity in genocide" is a punishable act. Since October, the United States has not only supplied missiles, tank shells and bunker-busting bombs to Israel, it also provided an impenetrable diplomatic shield at the U.N. Security Council to defeat three resolutions demanding a cease-fire, which had the overwhelming support of other Security Council members.
As a sign of what may be coming, the international NGO Defense for Children International–Palestine and several individual Palestinian-American plaintiffs sought an injunction in a U.S. federal court in San Francisco in late January to order the Biden administration to take all measures within its power to prevent Israel's commission of genocidal acts in Gaza. Although the court ruled against the motion on the grounds that it does not have the jurisdiction to decide a fundamentally political issue, citing precedent, it also called on the White House to take heed of the ICJ's ruling: "[A]s the ICJ has found, it is plausible that Israel's conduct amounts to genocide. This Court implores Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza."
The ICJ has no army or police to enforce its rulings. Its authority is based entirely on the willingness of states, acting in good faith, to comply with its legal orders, particularly when they are on the losing end. In other circumstances, the United States has joined Western countries to insist upon compliance with the Court's orders. In May 2022, following the Court's order for Russia to suspend its military operations in Ukraine, the United States, the United Kingdom, the European Union and 41 other states said in a joint statement: "We welcome the Court's ruling and strongly urge Russia to comply with this legally binding order… As the principal judicial organ of the United Nations, the ICJ is a pillar of the rules-based international order and has a vital role to play in the peaceful settlement of disputes." A similar statement was issued following the Court's orders for provisional measures in Myanmar, in a case on allegations that the atrocities committed by Myanmar's military against the ethnic Rohingya population also amounted to genocide.
The insistence by voices in the Global South that international law has one measuring stick to judge the behavior of all states has undercut the rote repetition by American and European leaders about their unwavering commitment to a rules-based international order. Nowhere is the daylight between the promise and performance of international law greater than with Israel's occupation of Palestine, and now its war on Gaza.
"As long as those who make rules enforce them against others while believing that they and their allies are above those rules, the international governance system is in trouble," Thuli Madonsela, a prominent South African constitutional lawyer, told The New York Times after the ruling. "We say these rules are the rules when Russia invades Ukraine or when the Rohingya are being massacred by Myanmar, but if it's now Israel butchering Palestinians, depriving them of food, displacing them en masse, then the rules don't apply and whoever tries to apply the rules is antisemitic? It is really putting those rules in jeopardy."
