The ICJ Ruling’s Hidden Diplomacy

By David Kaye

With one eye on the law and the other on its power, the International Court of Justice at The Hague has issued a preliminary ruling in favor of South Africa’s claim that Israel’s military assault on Gaza may plausibly be characterized as genocide. In a nearly unanimous vote, the court’s international panel of 17 judges ordered that Israel must do everything it can to prevent acts of genocide, clamp down on domestic incitement to genocide, and ensure immediate and effective humanitarian aid for Palestinians in Gaza.

Some may read the ICJ’s order as a limited legal intervention that refuses South Africa’s principal request for a ruling that would end Israel’s devastating campaign. The judges even offered an olive branch to the Israeli government, pointedly emphasizing that all parties to the conflict in Gaza “are bound by international humanitarian law” and calling for the “immediate and unconditional release” of the more than 100 Israeli hostages that remain in the custody of Hamas and other groups in Gaza. 

But the court’s ruling also contains a hidden ambition: it challenges all states—and especially the United States—to take international law seriously at a time of increasing violence and conflict and decreasing respect for the authority of international legal institutions. Indeed, at a time when the Biden administration’s efforts to limit the war’s harm to civilians seem to be flailing, the court threw it a lifeline, a path to a new policy toward the conflict that is rooted in international norms. The White House should embrace the court’s ruling, deploying it as a new diplomatic tool to end Israel’s military operation and force Hamas to release the hostages it still cruelly and unconscionably holds in Gaza. 

A MOMENTOUS MIDDLE GROUND

The January 26 ruling marks only the beginning of the ICJ case. South Africa’s claim against Israel will likely involve years of litigation over jurisdiction and the ultimate merits of the claim of genocide—litigation that the court has now authorized to go forward. In the meantime, how the United States and Europe respond to the court’s ruling is more important than the decision itself. If Washington and other Western powers simply circle around the Israeli flag, they risk doing further damage to international law and the so-called rules-based international order that they have embraced in previous ICJ cases, such as Ukraine’s 2022 claim against Russia’s aggression and the Gambia’s 2019 genocide claim against Myanmar for its treatment of the Rohingya. They also risk further alienating a large number of governments around the world, including much of the global South, that have supported the court in the past and that broadly back the South African case. Indeed, a rhetorical attack on the court’s ruling would have domestic political consequences for U.S. President Joe Biden as he begins a difficult election campaign, given the widespread disillusionment of the Arab-American community that has already resulted from the administration’s seemingly unconditional embrace of Israel since Hamas’s October 7 attack. 

The stakes are particularly high considering the relative restraint of the ICJ ruling and the middle ground it takes. A more aggressive order would have badly complicated a U.S. response. For instance, had the court acceded to South Africa’s request that it order an end to Israel’s military operation, Israel and the United States would have almost certainly dismissed the court and the measures it adopted. Although ICJ President Joan Donoghue’s careful reading of the judgment reflected the gravity of the situation in Gaza, she did so in tempered language, avoiding some of the vivid evocation of destruction and death that South Africa employed in its 84-page claim and in its three hours of oral argument before the court in mid-January. Alternatively, the court could have dismissed South Africa’s claim and adopted Israel’s moral outrage that it even had to answer to the claim of genocidal intent following Hamas’s atrocities—an approach that would have flown in the face of overwhelming world concern for the extraordinary loss of life in Gaza. 

Instead, as most close observers expected, the court rested its order on the cold black letters of its own law. It carefully located its own jurisprudence in the context of recent ICJ cases dealing with claims of genocide and issued six so-called preliminary measures—the courts version of injunctive relief—that broke no new legal ground and, in effect, restated Israel’s obligations under international law. On each of the major threshold questions the court followed its own rules closely. Drawing on the template of similar past cases, the judges agreed that South Africa had met the low burden of showing that the court would likely have jurisdiction to entertain a genocide claim against Israel while emphasizing that this finding did not mean that the court has established that any violations of the Genocide Convention have in fact occurred. 

More explosively, and yet equally rooted in ICJ jurisprudence, the court walked through a series of UN findings about the devastation in Gaza after more than three months of Israel’s campaign, finding that the “rights claimed by South Africa, and for which it is seeking protection, are plausible”—the low bar South Africa had to cross for the court to issue provisional measures. In reading the judgment, Donoghue also noted statements by “senior Israeli officials”—including Israeli Defense Minister Yoav Gallant and Israeli President Isaac Herzog—that South Africa and others characterized as dehumanizing if not genocidal. The court responded to South Africa’s claim of urgency, another threshold requirement in the jurisprudence, with perhaps its most serious statement: “In these circumstances, the court considers that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the court renders its final judgment.”  

The court’s order is, despite its apparent moderation, damning. It has allowed litigation to move forward on South Africa’s claim that Israel is committing genocide in Gaza, placing a virtual sword of Damocles over not only Israel in its future conduct in Gaza, but also those, such as the United States, that have given it such strong support. It has found plausible South Africa’s assertion that Palestinian rights must be protected against genocidal acts. Even Israel's appointee to the court, Judge Aharon Barak, joined the demands that Israel must prevent public and direct incitement to genocide and take “immediate and effective measures” to enable humanitarian assistance. These are very serious outcomes that reflect global legal concern about the humanitarian situation in Gaza. 

At the same time, the power of the court’s ruling lies in the judges’ careful efforts to isolate it from the language of politics or advocacy and anchor it in legal precedent. And the court’s substantive decision not to seek what it genuinely has no power to enforce without UN Security Council backing—an end to Israel’s military operation—gives the measures it has called for all the more importance. The orders are binding on the parties, as the court notes. But what the court is demanding, in effect, is for Israel to uphold what many already recognize as its existing obligations under the Genocide Convention. 

WHAT WASHINGTON MUST DO

In the weeks before the court’s January 26 ruling, the United States joined Israel in characterizing the South African case as without merit. The United States could make that argument in court, if it so decides, as an intervenor in the case as it moves forward. But the issue raised by the ICJ’s preliminary ruling is different. The Biden administration now faces an acute dilemma that cannot be resolved with superficial statements about the need for humanitarian access to Gaza. The court’s challenge to the United States is that geopolitics alone cannot be the means by which the conflict is wound down. International law must play a crucial role, and legal obligations have meaning. Failure by the United States to uphold these almost universally acknowledged legal standards, moreover, would seriously undercut its own legitimacy as a leader of the rules-based global order. 

The court has given the United States and Europe a new tool to demand that Israel change its approach in Gaza. The ruling offers the Biden administration an opportunity to emphasize its strong displeasure, backed by international law, with the dehumanizing rhetoric that has come from members of Israel’s right-wing cabinet. And it provides Washington with an opportunity to press Prime Minister Benjamin Netanyahu to do more than merely restate Israel’s aims to “eradicate” Hamas and to hold accountable those in his coalition and in the military who use the language of destruction of Gaza and its Palestinian population.

But more than that, the United States should respond to the decision by acknowledging the foundational point that Israel has an obligation to prevent acts that can be characterized as genocidal. The administration need not share South Africa’s view that Israeli acts are in fact genocidal—a view that the ICJ itself has not and ultimately may not uphold. But it does need to wrestle with the fact that the court, in a ruling backed by an overwhelming majority, has expressed serious legal concern with Israeli actions. Even as it supports Israel’s right to self-defense, the United States can bolster the court’s demands for concrete Israeli steps to prevent and punish violence against civilians in Gaza and the rampant destruction of the infrastructure that makes Gaza livable. 

The United States is no mere bystander, either to Israeli military action or to the enforcement of international law. Indeed, Washington has deployed the power of the ICJ’s authority in the past, launching the modern era’s use of the court for real-time international justice when it brought an ICJ claim against Iran in 1979, demanding that it release the American hostages held at the U.S. embassy in Tehran. The court has given the United States an opportunity to reaffirm that historic commitment, and the Biden administration should take it.