UN's ICJ ruling on Gaza 'hard to ignore' for Israel's allies

All eyes were on The Hague as the UN's ICJ ordered Israel to prevent genocidal acts in Gaza but failed to demand a cease-fire. The decision puts Israeli allies in a difficult spot

All eyes were on the ICJ ruling in The Hague on Friday, 26 January. (photo: DW)
All eyes were on the ICJ ruling in The Hague on Friday, 26 January. (photo: DW)
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DW

As 17 judges inside the International Court of Justice (ICJ) prepared to deliver their first ruling in a landmark genocide trial against Israel, some 100 pro-Palestinian protesters were gathered outside the Palace of Peace to watch on a big screen. "No Genocide. No ethnic cleansing. Nowhere," read one banner, emblazoned with the Palestinian flag.

A few hundred meters down the road from the ornate red-brick courthouse in The Hague, Netherlands, a similarly sized cluster of demonstrators waved Israeli and Dutch flags, holding pictures of hostages seized from southern Israel by Hamas militants on October 7.

That deadly terrorist attack triggered a devastating Israeli military offensive in Gaza with the stated aim of wiping out Hamas — the armed Islamist group that controls the densely populated Palestinian enclave and is classified as a terror group by the EU, the US and other governments — in order to defend the Jewish state's population. In the nearly four months since then, Israeli strikes have killed more than 26,000 people according to the Hamas-run Health Ministry in Gaza.

One side, or perhaps even both, of those assembled on this crisp, bright Friday was bound to be disappointed. In the end, a nuanced ruling left both sides with reason for dissatisfaction, though the scales tipped largely against Israel, as many had expected.

Court orders Israel to ease humanitarian blockade

As a signatory to the 1948 UN convention on genocide, Israel was ordered to take a range of steps to prevent genocide and irreparable harm to the Palestinian people in Gaza — including easing a near-total blockade on humanitarian aid. It was not, however, ordered to halt its military campaign outright.

Court President Joan E. Donoghue, who hails from the US, was at pains to stress that the judges were in no way ruling on whether Israel had breached the Genocide Convention or not. That decision could take years. At stake on Friday were a series of emergency injunctions requested by South Africa, which brought the case to the ICJ one month ago on behalf of Palestinians in Gaza.

Nonetheless, with the reported Palestinian death toll now over 26,000 and close to 2 million people internally displaced, the court found the situation grave enough to issue a series of emergency injunctions pending its long-off final verdict.

The decision will put pressure on Israel and its allies, including the United States, who had argued the case had no merit whatsoever.

Israel handed a string of injunctions over Gaza conduct

"The military operation conducted by Israel after 7 October, 2023, has resulted, inter alia, in tens of thousands of deaths and injuries; and the destruction of homes, schools, medical facilities and other vital infrastructure, as well as displacement on a massive scale," said Donoghue.

A clear majority of judges ordered Israel to "take all measures within its power" to prevent the killing of Palestinians as a protected group under the Genocide Convention and to prevent "causing serious bodily or mental harm," Donoghue added.

The government must ensure the Israel Defense Forces (IDF) do not carry out acts that may constitute genocide, and also prevent and punish the incitement of genocide, she continued.


Crucially, officials must "take immediate, effective measures to enable the provision of urgently needed basic services and humanitarian assistance." The World Health Organization (WHO) warned late last month that an unprecedented 93% of Gazans were experiencing crisis levels of hunger, Donoghue noted.

Donoghue took time to read out several statements from top-tier Israeli officials, including President Isaac Herzog and Defense Minister Yoav Gallant, that had been flagged by UN officials as exhibiting "dehumanizing language." The court also instructed Israel to submit a report on how it was complying with ICJ measures within a month.

With an eye to Hamas, which is not involved in proceedings because it is not defined as a state actor, Donoghue made clear that "all parties to the conflict in the Gaza Strip are bound by international humanitarian law."

On behalf of the ICJ, Donoghue also demanded the release of all the remaining hostages taken by Hamas on October 7. Israel believes that of the 253 people originally kidnapped, over 100 are still alive and being held in Gaza.

Israel calls genocide charge 'false and outrageous'

Israel was incensed by Friday's ruling, with the Foreign Ministry calling the "charge of genocide leveled against Israel" at the ICJ "false and outrageous" in a statement.

In the same press release, Foreign Minister Israel Katz said his country's commitment "to international law is unwavering. It exists independently of any ICJ proceedings, as does Israel's inherent right to defend itself against the genocidal terrorists of Hamas."

Two weeks earlier, Israeli lawyers had asked the top UN court to throw out South Africa's case as meritless and "grossly distorted."

The Genocide Convention, they recalled, was drawn up in the wake of the Holocaust, the carefully plotted mass murder of millions of European Jews by the German Nazi regime during World War II.

Speaking to DW in The Hague, Ammar Hijazi, a representative of the Palestinian Authority in the occupied West Bank, welcomed the ruling as a "historic decision."

"Today, for the first time in the history of the Palestinian people and their struggle for independence and freedom, Israel, their oppressor, has been held to account in front of the highest court in the world," he said.

Several supporters of South Africa's case told DW they were mostly happy with the outcome, with many interpreting it as a de facto order for Israel to lay down its weapons. As it was read out, the crowd outside the courthouse occasionally erupted with appreciative shouts.

One person at the pro-Palestinian rally, a man named Mouaan Al-Borsh, told DW that he had lost much of his family in Gaza and was "very sad" about the ICJ decision, saying he had been hoping for a cease-fire order. "This is exactly what America, what Israel wants," he said of the ruling.

ICJ ruling 'hard to ignore' for Israeli allies

Richard Gowan, an analyst at the International Crisis Group, a conflict resolution NGO, did not share that assessment. "A lot of states and legal experts will argue that Israel will have to fundamentally change its tactics or simply end hostilities," Gowan told DW by phone from New York. While Israel was likely expecting such a ruling, Gowan said it would be too much to call the lack of a cease-fire order a victory.

The ICJ ruling puts Israel's allies in a "painful quandary," according to Gowan. "Officials in Washington and London will be saying quietly to the Israelis, you really do have to significantly curb your campaign now because international outrage is continuing to mount," he said.

Unlike a national court, which relies on the police or the prison system, the ICJ has little means to enforce its rulings.


The ball therefore now passes back to the UN, Gowan explained. "A lot of diplomats here in New York expect that Algeria, as the Arab member of the Security Council, might table a resolution next week essentially demanding that Israel abides by the ICJ measures," he said.

The US would find it hard to sign off on anything that gave even mild credence to the notion that Israel was committing genocide, Gowan said. Nonetheless, "Israel and its friends will find [the ICJ ruling] hard to ignore," he argued.

Khaled Elgindy, an analyst from the Middle East Institute, a Washington-based think tank, agreed.

Elgindy said the US, Britain and Germany — who have been "the most full-throated and unconditional in their support for Israel's military campaign" — will find it difficult to "dismiss the court's findings and preliminary measures without undercutting the institution of the ICJ and their own stated commitment to a rules-based order."

"I don't see a way for Israel to continue operating the way it has in Gaza and still be in compliance with the court's ruling," Elgindy told DW from Washington.

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Published: 27 Jan 2024, 8:28 AM
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