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.
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. [Continue reading…]