Why International Court of Justice ruling against Israel’s war in Gaza is a game-changer

BY RAZ SEGAL

On Friday, the International Court of Justice issued an interim ruling against Israel and its war in Gaza. In the case, brought by South Africa last month, the court ruled that it is plausible that Israel is perpetrating genocide against Palestinians in Gaza. This ruling marks an end to the era of Israeli impunity in the international legal system.

The judgment pointed to dozens of explicit statements of “intent to destroy” by Israeli state leaders, wartime Cabinet ministers and senior army officers as well as the unprecedented levels of killing and destruction. The court also issued provisional measures, recognizing the dire situation: more than 26,000 Palestinians killed and more than 64,000 wounded in Israel’s bombardment, as well as almost 2 million people forcibly displaced now facing famine and the spread of infectious diseases.

The provisional measures did not include an order for a cease-fire, which South Africa had requested, but they did instruct Israel — by an overwhelming majority vote of the ICJ judges of 15 to 2 — to prevent any acts of genocide in Gaza and ensure that its military does not perpetrate such acts.

As part of the court’s provisional measures, Israel must also prevent and punish incitement to genocide; ensure the provision of urgent aid to Gaza; prevent the destruction of evidence and ensure its preservation; and provide the court with a report on these measures within a month. In effect, these orders do require a cease-fire, for there is no other way to carry them out.

The International Court of Justice ruling stems from the United Nations’ genocide convention, which was created in December 1948 and based on the view that Nazism and what we now call the Holocaust were exceptional.

This served a purpose: It separated the Holocaust from the piles of bodies and destroyed cultures that European imperialism and colonialism — still very much ongoing at the time — had left around the world in the preceding few centuries.

The exceptional status of the Holocaust rendered the new Jewish state that was established in May 1948 also exceptional, especially in view of the many Holocaust survivors who chose to try to rebuild their lives there.

Israel’s exceptional status led to a willful blurring of its foundational crime, the Nakba: the mass expulsion of more than 750,000 Palestinians and the destruction of hundreds of villages and towns in the 1948 war. That Israel could commit any crime under international law immediately became, in this exceptional framework, almost unimaginable. Impunity for Israel was thus baked into the international legal system after World War II. The urgent need to obscure the Nakba also emerged from the broader impetus to deny the nature of the Israeli state as a settler-colonial project. Paradoxically, Israel’s creation reproduced the racism and white supremacy that had targeted Jews for exclusion and, ultimately, destruction in Europe.

Israeli President Isaac Herzog expressed this white supremacy and colonial mind-set quite explicitly in an interview on MSNBC on Dec. 5: “This war is a war that is not only between Israel and Hamas,” he said in response to a question about the mass killing of Palestinians in Israel’s attacks on Gaza. “It’s a war,” he continued, “that is intended, really, truly, to save Western civilization.… We are attacked by a jihadist network, an empire of evil.” This empire, he said, “wants to conquer the entire Middle East, and if it weren’t for us, Europe would be next, and the United States follows.”

The concept of genocide functioned to protect the exceptional status of the Holocaust and Israel in the international legal system and to enable rather than challenge this long-held view. Until now.

With the ICJ ruling that Israel’s attack on Gaza is plausibly genocidal, every university, company and state around the world will now need to consider very carefully its engagement with Israel and its institutions. Such ties may now constitute complicity with genocide.

A few hours after the International Court of Justice ruling, another court heard a related case: In San Francisco, the Center for Constitutional Rights filed a lawsuit in federal court on behalf of Palestinian organizations and individuals, against President Biden and other U.S. officials for failure to abide by U.N. legal obligations to prevent genocide in Gaza and for complicity with genocide, because of the continued U.S. military and diplomatic support to Israel.

One after the other, Palestinian plaintiffs testified Friday about their family histories during the Nakba; their own experiences of Israeli mass violence; relatives they have lost since Oct. 8; neighborhoods in which they grew up that are no more; schools that Israeli bombings and invasion have turned to rubble; and cafes where they will never be able to drink tea again.

As it happens, these accounts came just before the International Holocaust Remembrance Day, which marks Jan. 27, 1945, when Soviet forces liberated the Nazi annihilation camp at Auschwitz.

We are entering a new era of international law. For the first time, we have seen courts consider the crime of genocide as a legal framework to describe what Palestinians are enduring. Through these cases, the voices of Palestinians point to a new era of Holocaust memory, beyond the denial of the Nakba, to a world that will finally put the voices, knowledge, histories and perspectives of all people who face state violence front and center.