February 26, 2024

Friday, the International Court of Justice, in The Hague—one of the six principal parts of the United Nations—found that Israel must take action to prevent genocidal violence by its armed forces;“prevent and punish” the incitement to genocide; and insure that humanitarian aid to Gaza is increased. South Africa had accused Israel of committing genocide against Palestinians in Gaza during the war that began in response to Hamas’s October 7th terrorist attack. (Twelve hundred people were killed in that attack; more than twenty-five thousand Palestinians have been killed in Israel’s bombardment.) The ruling of the I.C.J.—which is distinct from the International Criminal Court—fell short of finding Israel guilty of having committed genocide, but such a decision could take years; South Africa had also urged the court to order an immediate ceasefire, which it did not do. (The court does not have an enforcement mechanism.) But the I.C.J. still found cause for great concern about Israel’s military actions, and also the statements of its leaders. “At least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza,” the court found, “appear to be capable of falling within the provisions of the [Genocide] Convention.” I recently spoke by phone with Oona Hathaway, a professor at Yale Law School and the director of the school’s Center for Global Legal Challenges. She is also a nonresident scholar at the Carnegie Endowment for International Peace. During our conversation, which has been edited for length and clarity, we discussed the likely impact of the ruling, why the court was not going to make a definitive ruling on genocide so quickly, and why the court’s judgment should be considered surprising. How do you understand what this decision is saying? I think what this decision is saying is that Israel has engaged in acts that could plausibly constitute violations of the Genocide Convention—both genocidal acts and perhaps incitement to genocide—and that there’s enough here that’s been alleged, that those allegations are plausible. So they haven’t found that genocide has necessarily taken place, but the situation is dire enough that it is necessary for the court to issue these provisional measures. So it’s a pretty big blockbuster, I think, because the court is finding that Israel, which of course is a state that was created after World War Two, for the protection of those who had been subject to the horrors of the Holocaust, is the subject of plausible claims that it is in violation of the Genocide Convention, which was a convention that, in large part, was created for the purposes of condemning and attempting to prevent genocides like the Holocaust from ever happening again. So this is a momentous decision. There has been disappointment from some Palestinians, and from some supporters of the Palestinian cause, that this was not labelled genocide right now. Is that something that should have been seen as a realistic possibility? That was never on the table. What South Africa was asking here is for provisional measures, and when the court is making a decision on provisional measures, it’s not making a decision on whether the merits demonstrate the claims that are made by the applicant have been proved, because it doesn’t have any of the evidence in front of it. It just has arguments of the two sides in front of it. All that it is being asked to do is determine whether the allegations that are being made could plausibly constitute a violation of the Genocide Convention and, moreover, that the situation is dire enough that the court should act to preserve its capacity to actually render a decision on the merits, because that’s necessary in order to prevent … (Length: 4051 characters)