States must act now to stop Israel's genocidal war on Gaza

Here we share the reaction of the crowd on the day the ruling was delivered, as well as the opportunities and challenges it presents for the Palestinian people and the global Palestine solidarity movement.

At 1pm on 26 January the ICJ’s team of judges entered the courtroom and took their seats. The atmosphere on the street outside was extremely tense. People were nervous. The crowd drew a deep breath and fell silent. For the next 40 minutes we hung onto every single word. At times we hung on to each other.

ICJ President, Judge Donoghue, opened by noting that the Court was ‘acutely aware of the extent of the human tragedy that is unfolding ... and is deeply concerned about the continuing loss of life and human suffering’. The tension eased slightly. The suffering of the Palestinian people had been seen by the court.

President Donoghue continued reading. We concentrated hard to understand what the legal jargon meant in plain English. Ten minutes into the proceedings the Court announced that South Africa’s case was ‘sufficient at this stage to establish prima facie the existence of a dispute between the Parties’. We cheered and chanted before focusing and falling silent again.

The Court then considered whether the dispute fell within the provisions of the 1948 Genocide Convention. We drew our breaths, the tension rose. After a long passage the President finally declared that ‘at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention’. We erupted in emotional applause and an outpouring of relief.

Silence again. The President continued. South Africa had standing. More applause, nervous excitement – three wins for South Africa, none for Israel.

President Donoghue dealt with the substance of the Genocide Convention. After an extended passage on scope and application, the Court declared that ‘Palestinians in the Gaza Strip form a substantial part of the protected group’ and that ‘the military operation being conducted by Israel ... has resulted in a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure.’ The President then read statements from UN officials detailing the extent of the horror in Gaza, as well as statements by Israeli political and military leaders submitted by South Africa as evidence of genocidal intent, declaring that ‘the facts and circumstances ... are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible’. This was significant: Israel was on trial for genocide. Cheering, applause, emotional outbursts, hugging, chanting, tears.

The President continued. The crowd fell silent. The Court established that ‘there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible’. Relief, applause, silence. The President began reading the order, which creates legal obligations and is binding. You could cut the tension with a knife.

Israel must:

1. take all measures within its power to prevent genocide,
2. ensure with immediate effect that its military forces do not commit genocide,    
3. take all measures within its power to prevent and punish the direct and public incitement to commit genocide,             
4. take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in Gaza,   
5. take effective measures to prevent the destruction and ensure the preservation of evidence
6. submit  a report to the Court on all measures taken

No ceasefire? The question ran through the crowd. The live stream had stalled a few times, maybe we had missed it? People became uneasy, frustrated, confused. Submit a report? No withdrawal of troops? The President read the provisional measures, six in total, with a significant majority (15 and at times 16 in favour), an almost unanimous vote. Who was Judge Sebutinde? It was all over. Israel was on trial for genocide, but there was no order for a ceasefire. Anger. Smoke flares were lit. We erupted in a call from the bottom of our bellies for a ‘ceasefire NOW’, the hairs stood on the backs of our necks, incredulous that the court had not called for one despite recognising that the suffering of the people of Gaza plausibly met the threshold for genocide. Ceasefire NOW, Ceasefire NOW. Ceasefire NOW. We shouted and shouted as though our lives depended on it. They didn’t, but the lives of the 2.3 million people in Gaza did.

Though there was disappointment and a sense of betrayal in the immediate aftermath of the delivery, particularly for Palestinians who, against the gravity of the horror in Gaza, had run out of patience with the international system tiptoeing around and appeasing Israel, there was also relief that all was not lost. The ruling was a defeat for Israel’s genocidal regime and there was determination and resolve to use it to bring pressure to bear in isolating it in the global sphere. On the steps outside the courthouse South Africa’s foreign minister, Nadeli Pandor, interpreted the ruling as ordering a ceasefire in all but name because ‘in exercising the order there would have to be a ceasefire, without it the order doesn’t actually work’. 

Like all courts, it is impossible to disentangle the ICJ’s legal function from its role in political affairs. In reaching this ruling the judges likely balanced the use of a strongly worded order explicitly calling for a ceasefire and troop withdrawal, which would run the risk of getting less support from the Court’s 15 permanent and two ad hoc judges, against using more watered down language while garnering almost unanimous support. The Court opted for the latter in a legally and politically astute move that almost unanimously places Israel on trial for genocide and rebuts its claim of a right to self-defence, while not alienating Western states and putting them on notice that continued support to Israel may render them complicit in genocide. 

Since its creation, Israel, as a settler-colonial apartheid state, has enjoyed total impunity for its crimes against the Palestinian people. This exceptional status, which was embedded in the international legal system after World War II, was challenged in South Africa’s submission, which situated the events since 7 October within their historical context. Following the ICJ’s interim ruling, Israel is now formally on trial at the world’s top court for the crime of crimes – genocide. Though the court order is imperfect, it signals a new point of departure in the application of international law with regard to Palestine. For decades the crimes perpetrated by Israel have been framed within the constraints of bodies of law, such as International Humanitarian Law (IHL),  which themselves originate from and continue to embody a colonialist approach. The deafening silence of the International Criminal Court in issuing arrest warrants against Benjamin Nethanyahu and his war cabinet is a case in point.

This provisional ruling moves things along and breaks new ground legally and politically - Israel’s actions are now being framed against a historical backdrop of 75 years of oppression and occupation and are being examined, not as individual incidents, but collectively for their cumulative effect of contributing to the ethnic cleansing and extermination of the Palestinian people.

Crucially, the ‘right to self-defence’, which has repeatedly been invoked by Israel and parroted by its Western  allies to greenlight the illegal occupation and dispossession of Palestinian land, was firmly rejected by the court. This mirrors and reinforces a conclusion reached by the ICJ two decades ago in an advisory opinion regarding the apartheid wall. It bears repeating again and again: There is no right of self-defence on occupied land. Plain and simple. Israel’s actions in Gaza are wholly indefensible.

It may seem nonsensical to place a legal duty on a state like Israel and expect that it will comply in good faith when it has violated international law virtually every single day since its creation. This is where external political pressure and people-power comes in. 

As well as imposing legal obligations on a state accused of genocide, the 1948 Convention also places a duty on states parties to prevent, as well as to punish, genocide, while also establishing that complicity in genocide is a crime. As a result of this ruling, all states, not just Israel, are now formally on notice of the Court’s provisional finding that genocide is plausible and are therefore legally bound to take all steps within their power to prevent it.

A significant shortcoming of the international legal system is that it lacks teeth to enforce a ruling and therefore enforcement mechanisms are only as strong as the political will that exists to implement them. Considering that four months into Israel’s genocidal war the international system has thus far failed to intervene in a meaningful way, doing so now, though strengthened by this ruling, still presents huge challenges. In view of the impending ground invasion of Rafah city however, states must urgently act to implement this ruling. History will not forgive them for failing to do so. 

A final decision in this case may not be reached for many years but the provisional ruling is, without doubt, a significant political blow to Israel and its propaganda machine. Predictably, Israel criticised the court ruling as being (surprise surprise) anti-Semitic and has thus far refused to obey it. Israeli occupation forces killed hundreds more Palestinians in Gaza in the days immediately following the delivery of the order and have continued to kill thousands more since.

The zionist propaganda machine kicked into gear on the evening of the ruling and Israel in a bizarre, though not unsurprising twist to divert attention, announced that it had ‘credible evidence’ to indicate that staff from the UN Relief and Works Agency (UNRWA) had participated in the 7 October Hamas attack. Despite the fact that Israel is not a credible actor and has been exposed time and again for spreading baseless lies, with even the ICJ rejecting all of its defence arguments, in an astounding display of group-think many western powers began pulling the plug on funding to the only lifeline for the people of Gaza as they endure starvation, disease and unrelenting bombardment. UNWRA has warned that its lifesaving aid may dry up by the end of February unless the decision is reversed, which in effect amounts to collective punishment and expedites the genocide. Moreover, beyond UNWRA’s humanitarian role, the Agency plays an important political function in the implementation of UN resolution 194, which grants refugee status to Palestinians and recognises and protects their right to return to their homeland. A move to dissolve UNWRA would therefore be tantamount to an administrative genocide. 

The US responded to the ICJ ruling by saying ‘we continue to believe that allegations of genocide are unfounded and note the court did not make a finding about genocide or call for a ceasefire’ meanwhile the UK claimed that ‘Israel has the right to defend itself against Hamas’. The EU released a four-line statement in which it said it took note of the decision, reaffirmed its support for the ICJ, and the binding nature of its orders. For its part, the European Parliament in its first plenary session since the ICJ ruling voted down a motion to discuss it, centring instead on Russian interference and other issues much less urgent than the ongoing genocide. Irish MEP Clare Daly, one of the few outspoken voices in support of the Palestinian people, had her microphone turned off when she attempted to raise Gaza in the plenary.

In the immediate term the ruling has changed nothing for the people of Gaza who continue to endure bombardment, summary executions, torture, starvation, disease and displacement. Recent efforts to broker a ceasefire failed when Israel, once again, rejected an offer put forward by Hamas. At the time of writing the death toll stood at almost 28,000, Nethanyahu had vowed that the war must go on, and he and his war cabinet were busy advancing plans for what may become the most deadly assault of the genocidal war so far in Rafah.

Israel’s track record of systematically violating international law over decades left no one under any illusion that it would obey the order regardless of the wording. For this reason states can no longer simply call on Israel to do the right thing and shrug their shoulders when it doesn’t. All states must act now by immediately imposing an arms embargo, breaking trade relations and cutting ties with Israel. States, such as the UK, which has flown at least 50 spy missions over Gaza in support of Israel, and the US, which has deployed military hardware to the Eastern Mediterranean and provided billions in US taxpayer dollars for military assistance, must revoke this support. Neighbouring Arab states must close their airspace to Israeli aircraft and cut off fuel supplies flowing to the Israeli market. People power must exert pressure on governments to end their complicity in genocide, in line with the provisions of the Genocide Convention and the ICJ ruling. The Dutch court order in a case taken by various human rights organisations that overturns an early lower court decision and now outlaws the export of F35 fighter jet components is a positive step in the right direction. The same domino effect that saw funding being cut to UNRWA must now be applied to stem arms flows to Israel.

Israel's war machine can only thrive as long as other states tolerate it. If this tolerance continues and tens of thousands more - or worse - are massacred, it will leave a stain on our collective humanity that will never wash away. Future generations will fail to understand how the world allowed this to happen. We cannot deny the reality of what is happening inside Gaza, it has been beamed into our living rooms and on to our phones for the past four months. Moreover, Israel has told us exactly what its intentions are. We cannot say that we did not know. Failing to stop the worst consequences of the final extermination of the Palestinian people and dispossession of their homeland would set a truly terrifying precedent. The boundaries of what is permissible are being redefined and expanded by the world’s most powerful states. We cannot allow genocide to be normalised. 

People power is key. States will not respect human rights of their own accord, they never have, particularly those of black, brown, indigenous, Muslim and Arab peoples. The onus falls on us to exert pressure. The global Palestine solidarity movement must take every opportunity to use the ICJ ruling to raise the stakes to the point where it is no longer tenable for states, institutions, universities, sporting and cultural bodies, and all other entities to continue relations with the genocidal Israeli regime. It must be made a pariah state and isolated on the global sphere through people-led direct and disruptive action, strikes, boycotts, blockades, and protest. 

Globally, international order is evolving from a unipolar to a multi-polar world and the struggle of the Palestinian people has become the pinnacle of a global peoples’ movement against US imperialism and western dominated white supremacist power. Within this reconfiguration, former colonised nations must follow South Africa’s lead and no longer be cowed by Western imperialism. Like all empires, the days of US empire are numbered and it will eventually fall, and with the demise of Israel as an outpost of the US-Euro colonialist project. It won’t happen overnight, this will be a long-haul struggle, but it is gaining momentum. The West has never been so unpopular meanwhile the global Palestine solidarity movement has never been stronger. The genocidal war on Gaza must be the point of no return. There can be no more business as usual until Palestine is free.