ICJ Ruling on Genocide Presents 'Political Dilemma' for Biden

Friday morning’s much-anticipated decision by the International Court of Justice “marks the greatest moment in the history of the [court],” says Richard Falk, a noted international law professor and former United Nations Special Rapporteur on Human Rights in the Occupied Palestinian Territory.

“It strengthens the claims of international law to be respected by all sovereign states — not just some,” Falk says about the ICJ’s ruling that South Africa’s magisterial presentation of evidence “was sufficient to conclude” Israel may be committing, conspiring to commit, or publicly inciting the commission of genocide against Palestinians in Gaza.

The ICJ decision gave new strength to South Africa’s groundbreaking accomplishment — demolishing the taboo against holding Israel accountable for its crimes. As South Africa’s foreign ministry put it, “Today marks a decisive victory for the international rule of law and a significant milestone in the search for justice for the Palestinian people.”

“The decision is a momentous one,” says the foreign ministry, noting how important the determination is for the implementation of the international rule of law. “South Africa thanks the Court for its swift ruling.”

Friday’s decision was a significant victory beyond what most observers hoped for — not only the recognition that Israel’s actions are plausibly genocidal, but because of the imposition of provisional measures based on measures South Africa requested in order to stop Israel’s actions that are continuing to kill and put Palestinians at risk.

The ruling was also particularly important because of the overwhelming majority of judges who supported it, including the sole U.S. judge on the court. When the president of the court, Judge Joan Donoghue, who was a longtime State Department lawyer before being elected to the ICJ, read out the provisional measures, she included the line-up of how judges voted on each one. And she was among the 15 or 16 out of 17 judges who supported every one.

While judges serve as individuals and are not supposed to represent their governments, there is no question that national allegiances and other political considerations often emerge. In this case, only the judge from Uganda opposed all the court’s measures while the temporary Israeli judge opposed four out of six.

It should not have been a surprise that this preliminary finding recognized that Israel’s war against the entire population of Gaza may well constitute genocide. The definition, under the Convention on the Prevention and Punishment of the Crime of Genocide, says that two things are required to fulfill that definition: a specific intent to destroy all or part of a racial, ethnic, religious or other group (in this case the Palestinian population of Gaza), and the commission or attempt to commit any one of five specific acts to realize that intent. South Africa presented evidence that Israel is already committing — and conspiring to commit and inciting commitment — of at least four of those acts: killing, seriously injuring members of the group, creating conditions that make survival of the group impossible, and preventing births within the group. The ICJ decision was not a full determination of the facts and the law — as usual, those issues in international legal venues take years. This kind of initial finding requires a very low bar, only that it is “plausible” that Israel’s military actions, the siege and more could plausibly be found to constitute genocide.

It took the court only two weeks to come to this ruling, though still too long given the numbers of people the Israeli military is killing on a daily basis. But it still represents a hugely important step that will play a major role in strengthening the growing, broadening movement for Palestinian rights that is now playing such an unprecedented role in U.S. and global politics.

And then the ICJ went further, imposing six provisional measures to try and ensure that the rights of Palestinians might be protected from those actions. The measures imposed by the court say Israel “shall take all necessary measures” to prevent the commission of any of the five acts named in the Genocide Convention, that it ensure that its military forces do not commit any of those acts, that it punish any public incitement to those acts, that it take all measures to provide humanitarian assistance, to prevent the destruction of evidence relevant to the charges of genocide, and to report to the court within one month on what Tel Aviv is doing to abide by the court’s ruling.

The first measure was the only one weakened by the court. South Africa had requested the immediate suspension of military operations: a cease-fire. The ICJ language refers only to taking “all necessary measures” to prevent the five genocidal actions, but without demanding an actual end to the military assault. However, the Court’s second measure arguably answers that weaker language by keeping to the South African request that Israel make sure “that the military does not commit” any of the relevant acts — meaning that the IDF should stop killing people and be prevented from doing so. Not just prevented from killing “too many” people, as President Joe Biden’s administration and others have urged, but prevented from killing any people.

In both a national and international context, the Court’s decision poses a huge problem for the Biden administration. White House and State Department officials took the absolute position immediately after South Africa filed their petition to the ICJ that the claim of genocide was “meritless.” But with a close-to-unanimous court ruling that Israel’s assault on Gaza is plausibly genocidal — and with the singular U.S. judge standing with the majority — that dismissive attitude, and related claims that “the UN is biased against Israel” will not get much traction.

Just moments after Judge Donoghue finished reading the court’s ruling, Falk indicated that “this outcome poses the greatest political dilemma for the Biden presidency.”

“I only hope that Biden will, on this occasion,” Falk said, “stand up for justice.”

It is important to remember that while ICJ decisions are binding in international law, there is no appeal, and they are not self-enforcing. The court has no army, not even a police force to send around the world to make sure its orders are being implemented. What it does have, as part of the UN system, is an extraordinary level of credibility. All countries are bound by its decisions.

The Genocide Convention itself, unlike most parts of international law, places specific obligations on every party to the treaty — not only to countries who could be charged with violating its terms. So Friday’s ICJ decision applies to all 153 governments that are party to the Genocide Convention — meaning they have specific obligations to prevent genocide from occurring, to stop it when it does occur, to not be complicit in genocidal actions, and to punish any incitement to genocide that might occur in their own countries.

That means that if this decision goes to the UN Security Council for implementation arrangements, and if, as would be likely, the United States vetoed those efforts, and it then goes to the General Assembly, lots of possibilities arise.

This decision fundamentally, even if preliminary, provides a vital new tool for mobilization and campaigns to force governments to escalate their pressure to stop Israel’s genocide. It’s a tool in the campaigns for cease-fire now underway around the world. In the United States it will likely be a persuasive tool for congresspeople, city councils, universities and other institutions — as well as the Biden administration — to support a cease-fire. Because now it’s not only a question of moral obligation to stop the slaughter of tens of thousands of innocents, it’s also about abiding by the requirements of international law. And for some people, that may make all the difference.

With this new tool in hand, a U.S. shift towards supporting — and demanding — a cease-fire may be possible much sooner.