Gil Lewinsky

Implications of ICJ’s Genocide Case Preliminary Ruling

The day half of Israel has feared had arrived. The International Court of Justice (ICJ) convened to order provisional measures against Israel. While the court ruling is worrying, it also failed to call for a halt to the war, declaring a ceasefire, or withdrawal from Gaza.

Negative implications – Soft Power Against Israel

First the negative part. The court ruled that it did have Prima Facie jurisdiction to hear the case. This means that enough evidence of genocide appears to exist to require the ICJ to rule on the matter. This is a defeat for Israel and also in its fight in the world of public opinion. There is enough evidence to rule, the court said, and listed many examples that seem to show support to rule on the case.

Additionally, despite the activities happening in Gaza, part of the “Palestinian Territories” and “State of Palestine” according to the United Nations, it is not a party to this dispute. Palestine is a member of the Genocide Convention yet it is South Africa that is hauling Israel before the court over actions happening in the area of a third entity. As such, the case echoes of an international based blood libel against the Jewish state and will be on Israel to demonstrate otherwise. During the proceedings Hamas was minimally mentioned despite being the elephant in the room. The whole war wouldnt have happened if it wasnt for its genocidal policy against Israel.

Additionally, Hamas itself has committed atrocities against the people of Gaza including using civilian areas as military bases, and civilians as human shields. This was wholesale ignored by the court despite the conflict happening in the territory of a third entity that is also a party to the Convention.

The case gives additional merit to Palestinians as a distinct ethnic group and also to allegations that Israel commits genocidal acts. As such, the case gives Hamas and Gaza some cover and will fuel civil society and especially BDS around the world against Israel. Where there is smoke there is fire…and the court ruled that there is smoke.

Releasing the Israeli hostages unconditionally was mentioned once and demanded from Hamas but as the case is not about Hamas no legal weight can be attached to the statement. Additionally, it seems Hamas’s incitement to genocide against Israel, which is well documented, is permitted to occur as only Israel itself is bound to the case.

Note for now this is almost all rhetorical.

Practically,  A Sigh of Relief for Israel

The better news is beyond rhetoric of protecting Gaza’s population, the court did not impose on Israel, like it did against Russia, an injunction to end the war (which was ignored at the time. The court has no way to enforce its injunctions). Likewise, there was no request that Israel withdraw from Gaza. What the judges, in a very lopsided manner decided, was to ask Israel to desist from any action that can be viewed as genocidal, in whole or in part. The implications on this is that Hamas may be permitted to continue fighting in ways that are clearly contrary to International Humanitarian Law while Israel’s actions will be thoroughly analyzed and documented. We must fight with our hands behind our back. 

However, despite all, the war continues. There was no call to stop the war. There was no injunction that requires urgent United Nations Security Council (UNSC) intervention and therefore a need for an American veto. We don’t need to now be at American mercy for an imminent UNSC resolution that requires a veto. Additionally, there is no urgent injunction that will force allies to reconsider support for us. This gives us time.

Now despite an anticipated civil society backlash, this issue will die down for a few years until a final ruling is issued. By then, lets hope we have won the war and are facing a different reality.

About the Author
Born in Israel but raised in Canada, Gil Lewinsky worked as a journalist in Jewish newspapers including the Jerusalem Post after completing a Masters degree at the Munk School of Global Affairs from the University of Toronto. He also has a LLM in International Law from Lancaster University in the UK. His past topics include a book written about the Status of Gaza under International Law soon after its conquest by Hamas in 2007. He is perhaps best known as one of two people that brought a flock of Jacob Sheep from Canada to Israel in 2016, making history. He currently works as a teacher and English public relations professional in Israel.
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