Frederick Deknatel is the Executive Editor of Democracy in Exile, the DAWN journal.
In the two weeks since an initial ruling by the International Court of Justice found it "plausible" that Israel's actions in Gaza could amount to genocide, more than 1,000 Palestinians have been killed in the besieged territory and the risk of famine continues to grow. To protect Palestinians in Gaza from what it called a "real and imminent risk" of violations to their rights under the Genocide Convention, the Court awarded many of the "provisional measures" sought by South Africa in this landmark case, which accuses Israel of committing genocide in the war it launched in response to Hamas's attack on Oct. 7. Among those measures, the Court ordered Israel to ensure "with immediate effect" that its military forces do not commit any acts in Gaza prohibited by the Genocide Convention; to "take all measures" to prevent and punish the direct and public incitement to genocide in Israel against Palestinians in Gaza; and to immediately enable "the provision of urgently needed basic services and humanitarian assistance" into Gaza.
Israel must also report back to the ICJ within a month on the steps it has taken to comply with these orders, by late February. The case will continue in The Hague for several years before the Court reaches a final decision on whether Israel has committed genocide in Gaza.
To understand the full significance of the ruling, Democracy in Exile reached out to a wide range of experts and scholars of international law, human rights and genocide studies, including many of DAWN's non-resident fellows. We asked what they considered to be the most important aspect of the ICJ's decision and what impact it could have around the world.
The ICJ case is being offhandedly dismissed by the Biden administration in its public statements, but behind the scenes, its impact is already being felt.
- Josh Paul
Behind-the-Scenes Impact in Washington
No one goes to work for the U.S. government in order to be complicit in a genocide. While there will be a range of views within government when it comes to the International Court of Justice's application of provisional measures and finding of the plausibility of the charges brought by South Africa, the ICJ's initial response, and its reflection in a recent U.S. federal court ruling, will be echoing across the bureaucracy.
Within the U.S. government there is, of course, a vein of skepticism concerning international law, as well as a general sense that its reach is limited when it comes to actions taken by Americans in their official capacity. However, in my time in government, I saw this shield pierced on a couple of occasions—first in the 2015 arrest in Portugal of a former CIA officer on Italian charges related to an extraordinary rendition, and then during the height of the Saudi-led coalition's conflict with Yemen's Houthi movement. During the latter, as civilian casualties resulting from U.S.-origin munitions mounted, I saw officials increasingly refuse to sign off on arms transfers, preferring to escalate the approval process to more senior Senate-confirmed political appointees rather than, as some put it, risk arrest under a warrant from the International Criminal Court during some future European vacation.
In the context of the current genocide case against Israel at the ICJ, and informed of course by what everyone can see is unfolding in Gaza, I understand that American officials are once again recusing themselves from the decision-making process on arms transfers, this time for Israel. The reluctance of the civil service to sign off on these transfers increases pressure on political appointees, and will certainly be driving both further policy discussions as well as some deep soul-searching late at night. It is also likely that department lawyers at both the State Department and the Defense Department will be examining the ICJ's interim ruling to inform their own assessments of the legal exposure to those involved in the arms transfer process. The ICJ case is being offhandedly dismissed by the Biden administration in its public statements, but behind the scenes, its impact is already being felt.
—Josh Paul, a former director in the Bureau of Political-Military Affairs at the State Department, is a non-resident fellow at DAWN.
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The Start of Holding Israel Accountable
When the ICJ delivered its ruling ordering Israel to take all measures to prevent genocide in Gaza, many overlooked the significance of this ruling, due to the absence of the term "cease-fire" in the outlined provisional measures. Of course, for those in Gaza, in the center of the inferno, they were hoping to hear that the fire would be extinguished immediately. But for those of us on the outside, not trying to survive Israel's genocide, it is easier to see that this ruling is the start of holding Israel—and its genocide-enablers—accountable.
In 2004, the ICJ issued its advisory opinion regarding the illegality of Israel's separation wall. In that ruling, the Court highlighted that all states were under an obligation to ensure that Israel complies with international humanitarian law. The advisory opinion was non-binding, but, in its aftermath, it sparked the growth of the Boycott, Divestment and Sanctions movement—launched exactly one year after the ICJ ruling.
For this ICJ ruling, the impact is greater. Israel is now in the same category of other genocidal states, such as former Yugoslavia, Rwanda, Myanmar and, of course, Nazi Germany. And, unlike the 2004 ruling, this ruling binds all states, due to the fact that genocide is the most heinous of crimes. With Israel in this same category, the BDS movement is now strengthened. Whereas in the past, BDS was ignored by many countries, now it becomes policy—unless states want to be seen as supporting this genocide. This means pushing for arms embargoes against Israel, pushing for a cut in economic agreements with Israel, particularly in Europe, pushing for Israel's expulsion from sports and cultural events, and most importantly pushing for sanctions on Israel.
Law will never replace political action; there will never be a legal "knock out." But we can use law and legal systems to push for accountability and for justice.
—Diana Buttu is a Palestinian lawyer, writer and analyst. A Palestinian citizen of Israel based in Haifa, she is a former adviser to the negotiating team of the Palestine Liberation Organization and a non-resident fellow at DAWN.
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Erasing the Distinction Between Genocidal and Military Conduct
The ICJ's decision for provisional measures in the genocide case against Israel brought by South Africa is certainly momentous. The fact alone that Israel is in the dock for what many regard as the "crime of crimes" is a watershed moment, because it is typically countries or officials from the Global South that are hauled before the forums like the ICJ and especially the International Criminal Court. This time the situation is reversed: The West's "villa in the jungle" is being accused of genocide by the successor state of apartheid South Africa.
As might be expected, the Western press spun the Court's decision Israel's way, by saying that South Africa's call for a cease-fire was not granted, and thus that Israel was vindicated—even regarding the judgement's insistence that Israel abide by the U.N.'s Genocide Convention, because Israel claims to do so anyway. Israel's claim, so the argument continues, that the correct frame to adjudicate this conflict is international humanitarian law rather than the Genocide Convention thus stood. On the other side, proponents of South Africa are arguing that the granted provisional measures are tantamount to a cease-fire because there would be no other way to adhere to them under the Genocide Convention.
We will see where the ICJ falls on these questions if and when Israel submits the required report a month after the judgement. In the meantime, we can think historically about the tectonic shift that I see taking place in this moment, namely erasing the strict distinction that international law drew between genocidal and military conduct. Since the Nuremberg Trials and the U.N. General Assembly's vote on the Genocide Convention in the second half of the 1940s, states determined that they had to preserve their sovereign right to confront internal and external enemies by invoking military necessity and self-defense. They did not want an external tribunal, whether ad hoc or permanent, to be empowered to review how they exercised that right in terms of genocide. So military conduct, whether counterinsurgency or conventional warfare, was conceived as aiming to defeat an enemy. It was thereby distinguished from genocide, which aims to destroy a national group "as such," according to the Genocide Convention.
Yet security-related military conduct could have genocidal outcomes, because enemies were conceived as wholes, and the favored mode of warfare, aerial bombing, was so indiscriminate. The conflicts of the postwar period, like the U.S. wars in Korea and Vietnam, which killed millions of civilians, were thus excused as legitimate warfare despite criticisms from the left, which tried in vain to associate them with the Holocaust, genocide's archetype.
The global indignation at the mode of Israeli warfare in Gaza indicates that the ability to control the distinction between military and genocidal conduct is breaking down. I think this should be welcomed. It could lead to the establishment of a new norm, one that was also foreshadowed in The Gambia's action at the ICJ against Myanmar for its murderous expulsion of the ethnic Rohingya population in 2017, also in alleged violation of the Genocide Convention. African states are leading the way in upholding an international rules-based order while Western states disregard the rules when it does not suit them.
Of course, such a norm would apply to all. Turkey, which has criticized Israel's conduct against Palestinians in hard terms, would find its excuses about the Armenian genocide difficult to sustain. Everyone notices inconsistency, as they do in relation to the West's position regarding Ukraine and Israel. African states too, like South Africa, would need to reconsider their position in covering for Sudan's Omar al-Bashir in his indictment by the ICC.
—A. Dirk Moses is the Anne and Bernard Spitzer Professor of International Relations at the City College of New York, the editor of the Journal of Genocide Research, and the author of "The Problems of Genocide: Permanent Security and the Language of Transgression."
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The Middle East's Absent Autocrats
Why didn't any of the 22 members of the Arab League submit an application before the International Court of Justice charging Israel with violating the Genocide Convention? The same question applies to the 57 members of the Organization of Islamic Cooperation. Given their rhetorical statements after Oct. 7 in solidarity with Palestinian suffering in Gaza, why were these words not matched with concrete deeds? The answer is simple. At the core of ICJ ruling is a principle that Arab and Muslim ruling elites abhor: accountability for human rights abuses.
Authoritarianism dominates the political landscape in the Arab-Islamic world. A key characteristic of autocratic rule is preventing accountability for corruption, nepotism, mismanagement and, critically, human rights abuses. On a global scale, some of the most repressive regimes are located in the Middle East and North Africa. Preventing accountability for human rights abuses is a key aspect of regime survival that consumes a significant portion of national budgets.
Viewed from this perspective, what transpired at the International Court of Justice last month is a nightmare scenario for these Arab and Muslim autocrats. I suspect that privately that many of the leaders of the Arab-Islamic world were hoping the ICJ would side with Israel and against South Africa's application—not because of any inherent sympathy for Israel, but due to their disdain for the idea of moral accountability for rights abuses.
—Nader Hashemi is the director of the Alwaleed Center for Muslim-Christian Understanding and an associate professor of Middle East and Islamic Politics at the Edmund A. Walsh School of Foreign Service at Georgetown University. He is also a non-resident fellow at DAWN.
This ruling is the start of holding Israel—and its genocide-enablers—accountable.
- Diana Buttu
Whose Rules-Based Order?
Although a final ruling by the ICJ will still take time, this initial ruling has political significance that will be felt in several arenas. First, this ruling undermines Israel's global standing, as it will now be associated in the public sphere with acts of genocide, as it has been recently associated with apartheid. These accusations, rulings and subsequent findings—also being led by South Africa—have global significance in the public milieu, although they will not be as deeply felt economically by Israel. In short, though, the international public regard toward the State of Israel has been affected, as seen in the international protest and global cease-fire movement.
Second, the implications for the United States are significant, as it will once again face the choice of protecting Israel politically by casting more vetoes in the U.N. Security Council, which would further isolate Washington. What the past few months have shown—even more acutely than the isolation of the U.S. under the Trump administration—is that much of the international community is willing to move ahead without it. If the U.S. continues to bloc Security Council votes and rulings against Israel, it will be seen as having a double standard against the "rules-based order"—the very accusation the U.S. has been levying at China, Russia and Iran, to name a few.
Third, this ruling may set the U.S. further apart from Europe and may create a split within Europe on the role of international law and institutions in security. A rejection by some European nations of the ICJ's ruling may undermine Europe's security paradigm.
Finally, many of the cases brought before the ICJ have been against poorer and usually African states. The fact that this case was successfully brought by South Africa against Israel—a nuclear power closely allied with the U.S. and Europe—could set the stage for a standoff between the so-called third world and the first world over the "rules-based order" itself. In the end, it may be developing nations of the Global South that push to uphold a liberal rules-based order in spite of the powerful, wealthy countries, like the U.S., that have claimed to defend it.
—Dalia Fahmy, an associate professor of political science at Long Island University and a visiting scholar at the Center for the Study of Genocide and Human Rights at Rutgers University, is a non-resident fellow at DAWN.
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Potentially Radical Political Realignments
The ruling of the International Court of Justice, by the overwhelming votes of 16-1 and 15-2, to order provisional measures against Israel is a landmark decision in international justice and in the quest of Palestinians to reclaim their national rights. While the practical effects of the ICJ decision do not seem apparent, the order's legal effects have the potential to alter radically the political grounds on which the Israel-Palestine conflict is fought.
First, it should be noted that paragraph 45 of the ICJ's ruling expressly found that the Palestinians are a national group and therefore enjoy the protections of the Genocide Convention. This finding is crucial insofar as Israel has consistently denied that the Palestinians are a distinct national group entitled to national rights such as self-determination. This legal conclusion will have collateral consequences for Israel in other pending controversies, such as whether Israel is guilty of the international crime of apartheid.
Second, the ICJ found in paragraph 30 of its opinion that at least some the alleged acts are legally sufficient to fall under the prohibitions of the Genocide Convention, confirming the seriousness of the allegations. Third, the ICJ also found—in paragraphs 61 and 74—it plausible that the Palestinians in Gaza were facing a "real and imminent" risk of genocide occurring before the Court could conclude its proceedings. Accordingly, the factual predicate required for the Court it to issue provisional measures—"urgency"—had been satisfied. Fourth, because of the erga omnes nature of the obligations arising under the Genocide Convention, all states are under a legal obligation to prevent the genocide that Israel is threatening the Palestinians with.
While political officials such as U.S. President Joe Biden have yet to act in conformity with their obligations, it is obvious that courts are taking these obligations seriously. On the same day that the ICJ issued its historic decision, a U.S. federal judge in California, Jeffrey White, held hearings in the case brought by the international NGO Defense for Children International–Palestine and several individual Palestinian-American plaintiffs, seeking an order enjoining President Biden and other senior officials of the executive branch from assisting Israel's genocide. Although the judge, as expected, dismissed the suit under what is known as the political question doctrine—which insists that foreign policy is decided by the executive branch, not the courts—he nevertheless held an evidentiary hearing that lasted the entire day, taking testimony from several Palestinian victims of Israel's genocidal campaign. His order dismissing the suit expressly endorsed the ICJ's findings of Israel's genocidal intent. He noted that "it is every individual's obligation to confront the current siege in Gaza," and he concluded by imploring President Biden and the other defendants "to examine the results of their unflagging support of the military siege against the Palestinians in Gaza."
It is only a matter of time before more courts in different jurisdictions adopt the findings of the ICJ. As they do so, the pressure on elected officials to change course will only get more intense.
—Mohammad Fadel is Full Professor at the University of Toronto Faculty of Law, where was previously the Canada Research Chair for the Law and Economics of Islamic Law. He is also a non-resident fellow at DAWN.
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Putting Israel's Allies on Notice
While efforts to seek accountability for Israel's brutal military assaults on Palestinians have a longer history, last month's ICJ ruling has significantly strengthened not only legal but also political and moral scrutiny of the actions of Israel and its allies. That said, while the ICJ's order of provisional measures requires Israel to prevent and punish acts of genocide against Palestinians in Gaza, it remains to be seen whether Israel will indeed comply. Its actions thus far indicate otherwise.
Of course, the ICJ's order is not only directed at Israel. It effectively puts other states that continue to provide unflinching political and military support to Israel on notice. Israel's most powerful ally, the United States, is no exception.
While moral scrutiny of the actions of Israel and its allies is ultimately impactful for building solidarity and support for an end to the ongoing atrocities in Gaza, legal scrutiny is also crucial for reinforcing this support. This is especially so for those who were previously reluctant to take a stronger stance against Israel. Although these initial provisional measures are interim in nature, the ICJ's involvement and ongoing close watch of Israel's actions further legitimizes existing and future efforts to seek accountability for Israel and its allies' crimes against the Palestinians.
South Africa's case against Israel and the ensuing ICJ ruling projected the plight of Gazans in particular, and of all Palestinians more generally, onto an international stage like never before. The court of public opinion on this issue is no longer solely shaped by skewed media portrayals of the war. An international court of law is now a major actor in potentially galvanizing stronger political support for ending the war on Gaza and for seeking accountability for its atrocities.
Still, much more in the longer term is needed to dismantle the system of dehumanization of Palestinians, particularly in many parts of the West. An ICJ ruling could not, on its own, achieve this. But it certainly could serve as an important step.
—Noha Aboueldahab is an assistant professor at Georgetown University in Qatar where she teaches courses on public international law, transitional justice and the laws of war. She is also a senior non-resident fellow at the Middle East Council on Global Affairs.
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International Accountability, at Last
The most important and historic dimension of the ICJ's genocide decision is that Israel has been formally held accountable before the international rule of law for perhaps the first time in its existence—whether as an independent state since 1948 or as a Zionist movement that sought statehood in Palestine in the half-century before that. Israel faced other similar situations in recent decades, such as the ICJ hearing on the apartheid or separation wall in 2004, and debated resolutions in the U.N. General Assembly and Security Council. But in those situations, it was either politically shielded by the United States—or the United Kingdom, before 1948—or the issue at hand did not generate much global attention.
This hearing in The Hague was different. Israel was on its own, without a major Western power to protect its settler-colonial and apartheid regime. All its policies, values and aims as a state were on display and openly discussed in the U.N.'s highest court. Because the ICJ enjoys impeccable global credentials, Israel had nowhere left to hide, and no one else to blame for its genocidal actions justified as "self-defense."
The Court's finding that Israel plausibly engaged in genocidal acts in Gaza, combined with the massive support for Palestinians around the world from people and governments, marked a historic moment that most Western media and political analysis missed or ignored. This was a landmark phase in the century-old global struggle against Western colonialism. For most people in the Global South and even many in the North, the Palestinian struggle is the world's last anti-colonial struggle.
The Court's ruling has already opened the door to actions by individual states that take seriously their legal obligations under the Genocide Convention to take all necessary actions to prevent genocide, like Spain and other countries that announced they will suspend arms sales to Israel. The ICJ has also triggered a wider global dynamic of individuals or organizations that are raising, in their own national courts, new cases against Israel or other states engaged in suspected genocide. We have no idea if these actions and related ones in the media, education and civil society will succeed. We can be sure, though, that January 2024 was the moment when humanity fired the starter's gun for its final burst to bury forever the dual global scourges of colonialism and genocide. Thank you, South Africa. We owe you.
—Rami G. Khouri is a Distinguished Public Policy Fellow at the American University of Beirut.
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The Global North's Troubling Paradox
In his response on Jan. 26 to the ICJ ruling, Prime Minister Benjamin Netanyahu repeated a common taking point by Israeli political leaders that "Israel's commitment to international law is unwavering." Israeli Foreign Minister Israel Katz made similar remarks that same day. Yet given Israel's extraordinary record of breaching international law and defying United Nations resolutions, and now that a plausible case of genocide has been found by the ICJ, why does this fable continue to have such an unchallenged life among political leaders and the media in the Global North?
What does Israel's record tell us? In 1980, when the occupation of Palestinian territory was only 13 years old, the U.N. Security Council stated that there was an "overwhelming necessity to end the prolonged occupation" and deplored "…the continued refusal of Israel, the occupying power, to comply with the relevant resolutions of the Security Council and General Assembly." That same year, the Security Council had declared Israel's annexation of East Jerusalem to be "null and void."
More recently, the Security Council said in 2016 that the 300 Israeli settlements in East Jerusalem and the West Bank constitute a "flagrant violation under international law" and are, according to the United Nations High Commissioner for Human Rights, a war crime. The International Court of Justice ruled in 2004 that the Palestinian people have a right to self-determination, and Israel's obstruction of the right is a fundamental breach of an erga omnes principle of international law. The Palestinian refugees from the 1948 and 1967 wars have the right to choose to return to their homeland. Gaza is an integral part of Palestine, it remains occupied, and the Israeli blockade is a prohibited form of collective punishment. Israel's practice of apartheid, a serious violation of international law, has now been well documented by a number of blue-chip human rights organizations, including Amnesty International and Human Rights Watch.
The Global North's remarkable tolerance for Israeli exceptionalism in its conduct of the occupation has allowed realpolitik to trump rights, power to supplant justice and impunity to undercut accountability. This has been the conspicuous thread throughout the Madrid and Oslo peace process, which began in 1991. Israel, with little resistance from major international actors, has been able to successfully insist that negotiations with the Palestinians are to be conducted outside of the framework of applicable international law and the prevailing international consensus, notwithstanding the imperatives of the international rules-based order.
For the Global North, this has created a troubling paradox. There is no conflict zone in the world where the United Nations has pronounced with as much frequency and detail on the framework for conflict resolution as Israel and Palestine. Yet this framework has rarely informed the various Oslo-related peace processes that have successively collapsed in the absence of any sturdy legal scaffolding and political will to sustain a rights-based resolution.
—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.
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A Resounding Message From South Africa, and the Global South
South Africa's bold initiative of approaching the International Court of Justice, charging Israel with violations of the Genocide Convention, and the subsequent ruling in its favor for provisional measures is significant for many reasons. But it is arguably most significant as an assertion of South Africa's leading position within the Global South and the message of universality inherent in the application to the ICJ. The fact that South Africa's case was supported by more than a dozen other countries in the Global South indicates solidarity not only with the people of Gaza but also with the message that the plight of the Palestinians is universal. This message of solidarity found further dramatic expression in the massive pro-Palestinian protests worldwide since October calling for a cease-fire. That solidarity is also expressed in the diverse composition of the protesters around of the world. It is no coincidence that the near-unanimous decision in The Hague emanated from an international court that is heavily represented by judges from the Global South. The message is one of anti-imperialism and anti-settler colonialism. For many progressive Jews, the message is "not in our name." It is clear that the Global South is rising and cannot be ignored.
—Mia Swart is a visiting professor in the School of Law of the University of the Witwatersrand, South Africa.
