International Court of Justice Rules Forcefully Against Israel in Landmark Genocide Ruling, Including Restricting Military Action

One of the advantages of being a pessimist is that being wrong is a positive event. Like Norman Finkelstein, I had worried that there was still enough fear of crossing the US that the International Court of Justice jurists would use shortcomings in how South Africa had teed up its case procedurally to demur, at least until South Africa tried again. The other end of the spectrum that yours truly had anticipated was that the Court would rule significantly for South Africa by supporting its provisional measures calling for humanitarian relief, provision of medical services, and similar requirements, as well as less controversial but important steps like the preservation of evidence but not constrain the Israeli army, as South Africa had also sought via asking for a ceasefire.

I am basing this post on notes taken from the live presentation, where President Joan Donaghue read most of the ruling verbatim. We have embedded the video below and [in a 9 AM EST update] have added the text of the order.

Of critical importance, and a huge smackdown to Israel, is the Court came as close as it reasonably could to calling for a ceasefire in ruling for the provisional measure (which it devised itself) for Israel to cease military action against Palestinians as members of a protected group under the Genocide Convention.1 I had opined that the Court could not call for a ceasefire since it could not bind Hamas to comply. It would not be sound or shrewd to give Israel an easy pretext for defying the court by saying that a one-sided ceasefire would leave it defenseless. But impressively, the court went as far as it could, and way way further than I expected, in constraining Israel military operations against the Palestinian population.

Experts will soon opine but I assume this would still allow Israel to pursue Hamas members if it could do so without violating the Genocide Convention. This was 15 to 2, with the only dissents Uganda and the ad hoc judge from Israel.

The Court also implemented a measure which sounded like, and may have indeed been, the third requested by South Africa<,3 which I thought the Court would likely not implement as pretty much amounting to a reiteration of Israel’s existing obligations under the Genocide Convention. Including them came off as an additional rebuke as well as serving for further grounds for ruling against Israel in the upcoming trial if they continued to act wantonly against Palestinians.

It was not all that far into President Donaghue’s reading of the ruling that it was clear the Court had not even slightly bought what Israel was selling. I was surprised to see the Court rely on an Israel FAQ from its Foreign Ministry as the basis for Israel having responded to South Africa. As we pointed out earlier, these sort of media communications are normally not considered to be formal responses. But perhaps in this era of intense narrative management, those boundaries may have shifted somewhat. But the noteworthy part was not the Court’s conclusion here but that it didn’t deign to dignify Israel’s attempt to dispute the dispute by mentioning its arguments,

Instead, the Court spent a great deal of time on facts and Israel’s unabashed conduct. It was very far into the recitation that the ruling stooped to address one of Israel’s lame defenses, that they had provided humanitarian aid and the Attorney General, very late in the game, fingerwagged officially about not trash talking Palestinians. The text barely politely brushed that aside, saying that was inadequate.

I would need to read the ruling against earlier material (and remember each side did submit further backup) but the Court clearly went beyond what both sides provided. For instance, the ruling referencing findings from UN officials and agencies after January 12, when Israel made its oral argument. The Court appeared to give very heavy weight to the many dehumanizing statements made by Israel official (and again, my impression was the judges went beyond the ones provided by South Africa) and the findings of UN officials and agencies on the horrific conditions in Gaza.

In addition to requiring Israel to provide aid and services, stop dehumanizing Palestinians, and quit destroying infrastructure, the provisional measures included the preservation of evidence and requiring Israel to make a written report to the Court in a month on what it was doing to comply with the provisional measures, with South Africa then having the opportunity to comment on the report.

We’ll post the actual order shortly after it is up on the Court’s website. I may also add some hot takes from the Twitterverse. It will be interesting to see how the MSM organs like The Economist, which had vigorously defended Israel, and even more so Tony Blinken and Biden, try to ‘splain this outcome. It will be even more reveling to see how Israeli politicians and its press try to rationalize this ruling when the vote on every count were so lopsided, and even the US jurist and expected stalwarts like Australia did not side with Israel on any of the provisional measures.

Update 9;00 AM EST: Here it is, over an hour since the ICJ presentation, and I have yet to see a newsflash in my e-mail inbox from The Hill, the New York Times. or other usual suspects. It appears porcine maquillage is in short supply.


1 From the South Africa’s December 29 application:

(1) The State of Israel shall immediately suspend its military operations in and against Gaza.

(2) The State of Israel shall ensure that any military or irregular armed units which may be
directed, supported or influenced by it, as well as any organisations and persons which may be
subject to its control, direction or influence, take no steps in furtherance of the military
operations referred to point (1) above.

2 From South Africa’s December 29 application:

3) The Republic of South Africa and the State of Israel shall each, in accordance with their
obligations under the Convention on the Prevention and Punishment of the Crime of Genocide,
in relation to the Palestinian people, take all reasonable measures within their power to prevent


00 Order of 26 January 2024 - 192-20240126-ord-01-00-en
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  1. Joe Well

    Headline and lede in the NYTimes:

    U.N. Court Demands Israel Prevent Genocide but Doesn’t Call for Cease-Fire

    The International Court of Justice ruled that Israel must avert any genocidal acts by its forces, and must let more aid in to Gaza.


    Are they missing the point here or actually misrepresenting the decision?

    1. Yves Smith Post author

      They are doing their best to find a glass half full. As indicated in the post, South Africa had asked for a ceasefire, but no way, no how could the court credibly grant that. It would not just invite Israel defiance but correctly open the court up to criticism. They came up with the best functional equivalent they could with the requirement that Israel stop military action against Palestinians, as in the people

      I noticed the initial BBC headline made the ruling sound like big blow to Israel but they quickly revised it to something more anodyne.

      1. JohnA

        The mainstream media in England are far more interested in the news, approximately simultaneous to the ICJ ruling, that the Liverpool football club coach has announced he will quit at the end of the season. That makes both the front and back page headlines.

        1. Yves Smith Post author

          The “analysis” in BBC’s livestream seems very similar to what Joe Well saw at the NYT:

          Court stops short of requesting immediate ceasefire

          The court did not agree to South Africa’s request for an immediate ceasefire in Gaza – something that will disappoint the South Africans and Palestinians alike.

          But by large majorities the court’s 17 judges ruled, among other measures, that Israel should do everything in its power to avoid killing Palestinians, causing them serious bodily or mental harm or imposing measures intended to prevent Palestinian women from giving birth.

      2. .Tom

        Al Jazeera English had the same kind of headline as NYT, that it’s good news but unfortunately no mention of ceasefire. I guess a lot of people were waiting for news on exactly that.

        1. Expat2uruguay

          Well, I would say that that is what the narrative wants us to believe. The fact is the court could have punted the whole thing. Their actual ruling is a big deal, so in order to minimize the impact on the American people they are making the spin that we were really expecting a ceasefire, so this ruling is a disappointment.

      3. David

        Craig Mokhiber pointed out on a livestream with Norman Finkelstein and Katie Halper that a ceasefire is normally called between two warring parties, but here the ICJ was not adjudicating a war, but a genocide of civilians. Hence they called for cessation of harm to the civilian population and allow for humanitarian aid. While not by name, in practice it also amounts to a call for a ceasefire.

        I don’t know if there are precedents for this legal reasoning, but on its own it makes sense to me

      1. hk

        Interesting how headlines in some major Western news outlets are almost exactly the opposite of what transpired. I wonder how long the charade can be kept up. (I suspect it could be a long while.., followed by an outrage at how the RoW is “suddenly changing the narrative”.)

      2. Don

        And, while the Globe and Mail’s actual coverage is pretty reasonable, and clearly acknowledges that this is a huge rebuke to Israel, the rabid comments section almost entirely consists of crowing about this somehow being a victory for Israel while at the same time condemning the court for siding with evil, Russia-loving South Africa — and Hamas. (There is clearly a racist subtext here.)

        But great, and surprising, news!

        1. divadab

          Yes the Globe and Mail comment section is infested with pro-Israel and Pro-Ukraine (probably paid) commenters. And it is a censored comment section. A lot of comments which are acceptable here, for example, would be deleted on the G&M.

    2. Samuel Conner

      > Demands Israel Prevent

      the thought occurs that “Desist From” would have been more accurate, in terms of attribution of agency. “Prevent” kind of, to my ear, implies “3rd party” status of the recipient of the order, as if its status were similar to that of other less- or un-involved nations.

      Perhaps this is a bit of porcine maquillange.

      1. Yves Smith Post author

        Israel was pretty insistent in its oral argument not to use the word “desist” in any of the provisional measures if they were approved because it would be prejudicial.

        1. Ben Joseph

          Genocide determination would make it post-judicial rather than prejudicial. So I don’t understand why the court would yield to that request. A small caving, but weak nonetheless.

          1. Expat2uruguay

            This court was not ruling on whether or not the Israelis were committing genocide. They were ruling on whether or not there was enough suspicion of a genocide taking place that the causal parties should be warned. The actual determination of genocide will take place at a later date, because that process takes a long time.

    3. TimmyB

      The WSJ headline is “World Court Rejects Demand for Gaza Cease-Fire”. The ruling is being spun as a victory for Israel because it didn’t order a ceasefire.

  2. The Rev Kev

    Earlier today Hamas said it will abide by any ICJ ceasefire order if Israel reciprocates thus automatically hitting the ball into Israel’s court-

    The good news is that as all sorts of people and organizations will scream and shout about this decision in the coming hours, then you will get to see who actually supports genocide. Should lay on a bet now for how long it takes for somebody to use the term ‘blood libel.’

    1. Yves Smith Post author

      The Court could not consider such an offer even if Hamas made it earlier. Hamas is not subject to the jurisdiction of the Court. But agreed we can expect to see some heads issue rants before exploding.

    2. nippersdad

      I just really do not get the idea that accusations of a genocide against the Palestinians could be considered a “blood libel” even by those who have propagated the idea.

      “Blood libel
      : the false and maliciously perpetuated accusation that Jews have murdered non-Jews (such as Christian children) in order to use their blood in rituals.”

      To my knowledge no one has ever claimed that Israelis are eating Palestinians. Harvesting their organs, perhaps*, but not eating them. It just looks to me like the-Zionists-that-be ran out of more directly applicable ancient Jewish tropes to trot out for this particular occasion. Which, however gross the topic, it is nice to see that there are actual limits to the number and scope of them.


      1. Michael Mck

        I think the fake beheaded babies story encouraged by the Israeli leadership crossed the line to blood libel.

      2. Greg

        I believe it’s less about the specifics of the “blood libel” accusation and more about the context of the original blood libel accusations. Jew’s were persecuted widely because of the myth of baby eating.

        I see it as a sort of jew-specific calling something “a witch hunt”, where the original witch hunts largely caught up innocent people and burnt them alive.

        I’m probably massively misunderstanding something though.

      3. The Rev Kev

        A few days ago a small group of Palestinians were slowly approaching the IDF carrying a white flag when a sniper shot the guy with the white flag dead. When the Israelis were called out on this they were absolutely outraged about that accusation, even though they video showed precisely that. They did not use the phrase blood libel but they sure came close to it in their outrage.

    3. Don

      From the Globe and Mail coverage:

      Israel’s security minister, Itamar Ben-Gvir, said his government should ignore the ruling by the “antisemitic court.” He said the court “does not seek justice, but rather the persecution of the Jewish people.”

      1. nippersdad

        The court specifically mentioned four ministers who had made genocidal statements, I wonder if he was one of them. That argument is not going to go far if he has already been outed as a person who was quoted as pushing genocide. It is going to look a lot more like covering his butt prior to a date with the ICC.

        1. Piotr Berman

          By the size of his mouth, and pertinent jurisdiction (including police actions in East Jerusalem and West Bank), Ben-Gwir should be on a short list of inciting ministers.

        2. jrkrideau

          No, I could only find three but the quotes are interesting:

          Ministers mentioned
          Mr Isaac Herzog, President of Israel
          “We are working, operating militarily according to rules of international law.
          Unequivocally. It is an entire nation out there that is responsible. It is not true this
          rhetoric about civilians not aware, not involved. It is absolutely not true. They could
          have risen up. They could have fought against that evil regime which took over Gaza in
          a coup d’état. But we are at war. We are at war. We are at war. We are defending our homes. We are protecting our homes. That’s the truth. And when a nation protects its
          home, it fights. And we will fight until we’ll break their backbone.”

          Mr Yoav Gallant, Defence Minister of Israel
          On 9 October 2023, Mr Yoav Gallant, Defence Minister of Israel, announced that he had
          ordered a “complete siege” of Gaza City and that there would be “no electricity, no food, no fuel”
          and that “everything [was] closed”. On the following day, Minister Gallant stated, speaking to Israeli
          troops on the Gaza border:
          “I have released all restraints . . . You saw what we are fighting against. We are
          fighting human animals. This is the ISIS of Gaza. This is what we are fighting
          against . . . Gaza won’t return to what it was before. There will be no Hamas. We will
          eliminate everything. If it doesn’t take one day, it will take a week, it will take weeks or
          even months, we will reach all places.”

          On 13 October 2023, Mr Israel Katz, then Minister of Energy and Infrastructure of Israel, stated on X
          (formerly Twitter):
          “We will fight the terrorist organization Hamas and destroy it. All the civilian population in [G]aza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.”

          1. Yves Smith Post author

            The first two are particularly important because, in its oral argument, Israel tried claiming that the statements South Africans presented in their case (IIRC only 2) could be dismissed. Netanyahu’s “Amalek” statement was argued to be taken out of context (a following remark could be taken as limiting it to combatant) and a second was by a minister (interior? communications?) who was not on either of the bodies prosecuting the Gaza campaign. There is no question the first two here were.

  3. i just don't like the gravy

    I am concerned that Israel and the delusional United States will keep at it regardless.

    I hope I am wrong, because if not this will escalate very quickly…

  4. vao

    Here are the main points in the first article by French newspaper of record Le Monde regarding the ICJ ruling (my translation):

    War between Israel and Hamas: the ICJ orders Israel to give humanitarian relief access to Gaza, and asks it to prevent possible acts of “genocide”.

    On Friday the 26th of January, the International Court of Justice (ICJ) declared itself competent to judge the dispute between South Africa and Israel.


    The ICJ, whose seat is in The Hague, does not address the question of whether Israel is effectively committing a genocide or not. It ruled on emergency provisions before examining the merits of the case, a process that may take years.

    The court declared that Israel must take “all measures within its power to prevent and punish direct and public incitement to commit genocide”. It also ordered Israel to grant access to Gaza for humanitarian aid. Israel must take “immediate and efficacious measures to allow the provision of basic services and of humanitarian aid that is urgently needed by Palestinians to deal with the unfavourable life conditions which they are facing.”

    The fact that the people “directly and publicly inciting genocide” are the members of the Israeli government is entirely ignored. The article concludes with:

    War started on the 7th of October with the unprecedented attack launched by Hamas on Israeli territory, which caused the death of over 1140 people, mostly civilians, according to tally of the Agence France Press based on official data.

    Not a single word about Palestinian deads and wounded — which was the whole point of the South African complaint at the ICJ.

    This is very much in line with the recent unabashedly one-sided pro-Israel statements made by members of the French government.

    1. Yves Smith Post author

      If you watch the video the hearing, or read the text of the order, you will see the Court banged on about that: death counts, wounded, residence destruction, 1.7 million displaced, very high levels of hunger and malnutrition, disease, and even UN officials warning of societal collapse. So the Court very much papered the record about Palestinian suffering.

      1. CA

        Arnaud Bertrand @RnaudBertrand

        Wow, this is a very important article. Israeli journalist @yuval_abraham discovered that the IDF “relies almost exclusively” on the Gaza Health Ministry data to estimate how many civilians it has killed, and they internally find the data “reliable”.

        הצבא בדק ומצא שדיווחי ההרוגים במשרד הבריאות בעזה – מהימנים *

        Yes, the very same data Israel – and President Biden himself – have always been telling you is NOT reliable. Biden’s exact quote was “I have no confidence in the number that the Palestinians are using.” And the same data most Western media feel compelled to remind you comes from the Hamas-run Health Ministry in Gaza…

        In fact, as the article reveals, Israel doesn’t do bomb damage assessment (BDA) for its strikes, meaning there is no check on who and how many civilians were killed. This routine post-strike check was skipped to ‘save time’ and instead they rely on the Health Ministry to find out the outcome… An Israeli intelligence source disclosed to the journalist that the numbers of the Ministry of Health in Gaza are now displayed at meetings and briefings in the army on a regular basis after they were found “reliable” in an inspection. “In every situation, when everyone updates each other on what is happening, there is a slide that shows the current number of civilians killed in Gaza. And by and large, it is based exclusively on the Hamas Health Ministry,” he said.

        Worse, the source revealed that “the army not only trusts the numbers of the Ministry of Health in Gaza, but agrees that they are an ‘underestimation’, and that the real number of civilians killed in Gaza is greater”. The Ministry of Health in Gaza bases its data on counts in the hospitals. According to the source’s estimate, at least 8,000 people were killed without their bodies reaching a hospital. So the actual number of violent deaths in Gaza is probably way north of 30,000 (and immensely more if one takes into account the deaths from diseases and various health complications linked to the conflict).


        10:21 AM · Jan 24, 2024

      2. .Tom

        The IJC says to allow aid at the about the same time that Russia and the Houthi leaders propose to call off the blockade of Red Sea shipping if Israel calls off the blockade of Gaza (if I read today’s news right). The pressure is growing.

        1. Samuel Conner

          This thought occurs that the ICJ finding of its own jurisdiction in this matter, correlated with the duty of all nations to prevent genocide, could be regarded to validate or justify the measures the Houthis have been taking to pressure Israel to de-escalate, and perhaps even to criminalize the measures US is taking against the Houthis and more generally in aid of Israel’s operations in Gaza.

          Pressure is indeed growing.

          Who is the “evil empire” now?

    2. johnnyme

      The Associated Press story that appeared in my local paper does a better job:

      South Africa alleged that Israel’s campaign in the tiny coastal enclave amounted to genocide in the case, which goes to the core of one of the world’s most intractable conflicts, and had asked the court to order Israel to halt the operation.

      While the ruling stopped short of that, it nonetheless constituted an overwhelming rebuke of Israel’s wartime conduct and adds to mounting international pressure to halt the offensive that has killed more than 26,000 Palestinians, decimated vast swaths Gaza, and driven nearly 85% of its 2.3 million people from their homes.

      In the highly anticipated decision made by a panel of 17 judges, the International Court of Justice decided not to throw out the case — and ordered six so-called provisional measures to protect Palestinians in Gaza.

      Many of the measures were approved by an overwhelming majority of the judges. An Israeli judge voted in favor of two of the six.

        1. Lambert Strether

          On the contrary, inferring “centralized control” is a dangerous habit of mind and should be resisted at all times. (There’s always question-begging on the nature of “centralized,” and also “control”).

            1. Uncle Doug

              Nailed it, Yves. This is exactly what most of the stenographers of the Western MSM do when reporting stories implicating the international policies of the hegemon and its minions and sidekicks. For some of them, it is probably unconscious, but only for some.

    3. nippersdad

      A question of fact:

      “War started on the 7th of October with the unprecedented attack launched by Hamas on Israeli territory,…”

      Not that this would have been mentioned in the article, but when Hamas went over the wall did they ever actually make it into internationally accepted Israeli territory or did they just get into yet more Israeli occupied territory outside of the Gaza compound? Seems like this is something that would be within the courts’ jurisdiction, as occupied peoples have the legal right to an offense within occupied territories under international law.

      My understanding is that they never got outside of occupied territory, so that should make a difference in the way the court views this.

  5. hemeantwell

    Great coverage, Yves, and thanks to the commentariat for reporting reactions. Saw this at MoA, and note the last paragraph, which suggests the Israeli opposition to Bibi and his bandits have scored:

    As Heidi Matthew, an assistant professor of law at Harvard remarks:

    The ICJ’s written order and separate opinions will be released shortly. But my first reaction is that this is a big win for Palestinian advocates. Some will be disappointed that the Court stopped short of ordering a ceasefire. But…
    … the fact that the Court ordered the measures it DID, including directing Israel not to commit or incite genocide, indicates it has concluded that it is (a) plausible for Palestinians in Gaza to claim protection from genocide, and (b) that the need for protection is urgent.
    I think we can infer from this that *at a minimum* there is a serious risk that Israel will commit genocide. This is important because it puts *all states* on formal notice of the serious risk of genocide, which triggers states’ duty to take concrete steps to prevent genocide.
    Among other things, this means that in order for states to fulfill their international obligations under the Genocide Convention they must *do something*. For e.g., states exporting arms or military technology to Israel must stop.

    The short story: this order on provisional measures will have an important and immediate impact on how states are required to act under international law. It will also radically shift the global conversation about what is happening in Gaza.

    Another related point: I need to read the separate opinions, but my intuition is that it’s a massive win that Israeli ad hoc judge Barak sided with the majority in ordering many of the provisional measures. He may have judged his own legacy as more important than Netanyahu’s.

    1. Yves Smith Post author

      Yes, I was remiss in not calling out that Barak more often than not voted for the provisional measures. IIRC he issued a separate opinion. Only the judge from Uganda voted every time against the provisional measures. She also wrote a dissent.

  6. Alice X

    My tears fill the gutter and flood the sea, but I fear the crocodiles will continue to do what is in their nature. Even though it was 15 to 2, which is something! Will Biden suspend arms shipments?

    1. nippersdad

      There is a Gaza genocide case against the Biden Administration in which a public hearing will be held today in California.

      It will likely be thrown out on national security grounds, as they usually are, but if not that would be a bad look in an election year. Trump may not be the only one going in front of a judge during the primaries and election season. So that is something to look forward to.

      1. Alice X

        Thank you! I did know of that case. The timing is completely fortuitous. It is way over my pay-grade to parse exactly, but it seems to me that Biden must tread very carefully henceforth.

        1. Samuel Conner

          The anti-JRB political adverts practically write themselves: “Four More … Years of War! Biden 2024!”

            1. orlbucfan

              Screw that one. Redneck stupidity is just one example of the massive U.S. dumbing down, and maggotbrained tRump and Braindead Byedone make me sick and angry. I am fed up with being ashamed to be an intelligent American!

        2. nippersdad

          I wonder to what degree the ICJ decision will factor into the California judges decision. It could be viewed as notice that Biden is complicit with a genocide, and in federal courts the Genocide treaty has the force of Constitutional law. What federal judge would want to be on the wrong side of that?

          As you say, they are treading on very thin ice.

        1. Alice X

          Wow, the judge’s opening remarks are clearly slamming the administration. BUT, now he is questioning the court’s province in handling the case.

          1. nippersdad

            If you could please give us updates, or a precis after it is done, I would appreciate it. Apparently I need all kinds of “updates” to log on.


            1. Alice X

              57 minutes in and the judge now mentions today’s ICJ finding. He is now hearing how the Genocide Convention can be enforced. The defense is bringing up the security council. Basically is saying the court has no jurisdiction. Plaintiffs counsels change places to answer the enforcement question.

              1. nippersdad

                Thank you! Jurisdiction, however pro-forma, is going to be a non-starter, but standing will be interesting. I look forward to hearing what they do after the break.

                1. Alice X

                  10:40 PDT – they have resumed with witnesses for the plaintiffs. First was a doctor in Raffah (via Zoom), then a lawyer with a human rights organization. Questions by the plaintiffs lawyers, no questions from the government. Now a Gazan family woman, an author, living in Maryland.

                2. Alice X

                  12:08 PDT – another break for maybe 15 minutes – they have had four (I think) individual witnesses and one organizational witness, all questions from the plaintiffs’ counsels, none from the defendants. Plaintiffs’ council says they have three more witnesses that may take an hour. I don’t know if I can stay with it. But the world is watching, I suspect, and I also suspect the people in the courtroom know it.

                3. Alice X

                  15:24 – they are resuming. The judge has had a troubled expression since the start. Maybe that is normal for him, but I can’t know that.

                4. Alice X

                  16:40 They have concluded. There were additional individual witnesses on conditions in Gaza and a final expert witness on genocides in general and Gaza in particular. The government made numerous objections regarding the last witness, which were all over ruled. The government asked its only questions of the day of the final witness, but were limited to his lack of credentials for those areas in which he was not an expert. In summing up the plaintiffs counsel stressed the facts on the ground and the government said the court didn’t have authority. The judge concluded that it was the most difficult case he had ever heard. The ICJ case was mentioned several times.

                  1. nippersdad

                    Thank you very much! I hope that makes it to YT so that I can see it as well, but it sounds pretty much as one would have expected.

                    They must have been arguing about jurisdiction a lot, but where else would one take such a case than federal court? They always do that, but from your reporting it sounds like the court isn’t having it. You didn’t say much about standing, which is what I was worried about. Hopefully that will be mooted as well.

                    If defense is down to pounding the table then they must not have much of a legal leg to stand on. Yours is the only coverage I have seen today! That, in itself, is telling.

                  2. nippersdad

                    More on the case from Al Jazeera:

                    In response, the lawyers for the Biden administration “are focusing on a very narrow legal argument”, he said.

                    “They are saying the court does not have the authority to rule on this. They’re citing what is called the political doctrine, and it has to do with the separation of powers in the United States,” Reynolds said.

                    He explained that lawyers are arguing that the conduct of foreign policy, diplomacy, military activities and the relations between allies are in the “political purview of the executive branch, in other words, the president and the cabinet” and, therefore, not amenable to judicial action by other branches of power that make up the US government.


                    So, an imperial presidency defense! I wonder how this will fly this time? Joe Biden is no George Bush, and the times have changed.

                  3. nippersdad

                    From the Intercept:


                    “This case does not present the court with a political question,” she added. “These are not questions of policy. These are questions of law.”

                    vs. defense

                    Justice Department attorney Jean Lin, for her part, referenced a legal concept known as the “political question doctrine” to argue the court has no authority over foreign policy matters. “It’s a long-standing doctrine that the court has no jurisdiction to enjoin the president in his exercise of official duties,” she said.

                    “This court is not the proper forum,” she said in her closing remarks.”


                    OK, so they are making this a question of presidential prerogatives vs. the law as it stands. The problem is that no mere policy or tradition can be viewed as being higher in stature than the Constitution. The Genocide Convention is a treaty ratified by the Senate (that also has a domestic law component), and as such is a part of the preeminent law of the land. I believe this case was brought on such things as the Leahy Law, which prevents the US from funding or arming countries that are in abrogation of international human rights laws, but that does not mean that the other applicable laws could not be considered (as evidenced by reference to them in the arguments made before the judge).

                    So this is going to be a test of how powerful the Biden Administration is vs, how much exposure the judge wants to expose himself to at the Hague. It will prolly get kicked upstairs for that kind of determination at the Supreme Court for a final review, but it is not over by a long shot.

                    1. Will

                      Article IV of the Genocide Convention deals specifically with this issue:

                      Persons committing genocide or any of the other acts enumerated in article III [such as conspiracy and complicity] shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

                      Article V requires parties to enact all domestic legislation necessary to give effect to the Convention.

                      Does this help make the case against Biden?

                    2. nippersdad

                      Will, I would say that it absolutely does. The president of this republic, anyway, does not get to unilaterally decide what is or is not Constitutional for him to do, that is the function of the federal judiciary as a coequal branch of the government. Checks and balances still apply.

                      However they want to dance around it, the imperial presidency concept is not within the enumerated powers of the presidency.


                      Bush and Cheney got away with it to a degree, but they had to be immunized by Congress/subsequent presidents and can’t leave the country. At the height of his GWOT GWB had eighty plus percent approval ratings and the complicity of Congress, when Obama followed his lead he was pretty unassailable as well, but Biden does not have that to protect him.

                      This is going to be fun to watch!

        1. nippersdad

          Prior cases would be things like GWB ignoring the Geneva Conventions, and how they handled that was by claiming an imperial presidency above such considerations. They still cannot go abroad, as there are no statutes of limitations and they could get caught up by the ICC on an arrest warrant. Hence the Hague Invasion Act.

          This case is not being brought on the Genocide Convention, though, but instead on unrelated domestic laws. I don’t know how the convention will not be brought into the mix at some point because it is also controlling Constitutional law. They prolly expect it to be brought up on appeal.

          But no one can say now that the US government was not “notified” of a potential breach of the Convention. This is going to be a tar baby, and anyone touching it will be subject allegations of being collaborators if they sweep it under the rug. We will just have to see how brave they all are.

        2. Alice X

          Well, one would think that the law is clear, but the government today is arguing against its enforceability by the Northern District Court of California.

    2. CA

      My tears fill the gutter and flood the sea, but I fear the crocodiles will continue to do what is in their nature…

      [ A remarkable plea. ]

  7. Iris

    What differentiates the International Court of Justice from the International Criminal Court and the ad hoc international criminal tribunals?

    The International Court of Justice has no jurisdiction to try individuals accused of war crimes or crimes against humanity. As it is not a criminal court, it does not have a prosecutor able to initiate proceedings.

    1. Will

      Under the Genocide Convention, states are required to prevent genocide by enacting laws to criminalize genocidal acts by people. Therefore, the primary responsibility for criminal trials rests with domestic courts.

      The ICC is a complement to domestic courts. It undertakes criminal trials if a domestic court is unable or unwilling to proceed. Further, it will only take cases for states that are a party to the Rome Statute. Israel is not a party to the Rome Statute.

      The ICC was created because ad hoc international criminal tribunals were seen as inadequate. If there is not enough international support, then an ad hoc tribunal is never created and crimes most likely go unpunished.

      The ICJ was created under the auspices of the UN to adjudicate disputes between states. It’s in many ways a successor to the Permanent Court of International Justice, which served a similar function under the League of Nations. While the ICJ does not have automatic jurisdiction over any states or treaties, it’s hoped that creating a permanent forum for adjudication will encourage states to seek peacefully means of resolving differences.

      The present case is made possible by Article IX of the Genocide Convention, which allows states to take any disputes to the ICJ. And the dispute? South Africa believes Israel is not living up to its obligation to prevent genocidal acts being committed by people within Israel.

      Please note that in order to reach a final decision, the ICJ will have to consider the question of whether genocidal acts were committed by individuals. It is necessary to do so in order to determine whether the state of Israel failed in its duty under the Genocide Convention to prevent genocidal acts.

      The ICJ can also conclude that the state of Israel has committed genocide because of the theory of state responsibility. This is akin to the principle of employer responsibility (respondeat superior). Serbia was held to be responsible by the ICJ on this basis for the Srebrenica Genocide.

    2. Yves Smith Post author

      We have repeatedly described the differences in our coverage of this case. South Africa made a series of referrals to the ICC for various war crimes, and finally for genocide, but as far as I could tell, did not name individuals. The ICJ has jurisdiction over international agreements and certain other matters. It however cannot hear cases on garden variety war crimes because unlike genocide, they are not part of any international convention Only genocide is. So the only move open to South Africa when its ICC referrals went nowhere was to go to the ICJ with an application for provisional measures v. genocide.

      Many UN member states have taken advantage of a UN provision that allows them to opt out of ICC jurisdiction, including the US, China, and Russia.

  8. Will

    Kudos to the South Africans for doing the right thing and bringing this case to the ICJ.

    Now the question turns to what the US and other Israeli allies will do in response, especially if Bibi follows through with his earlier threat to ignore any adverse ICJ ruling. For instance, would the US then allow the UN Security Council to authorize peace keeping operations in Gaza to stop the fighting?

    Very strong case now that all countries are required under the Genocide Convention to act and prevent the genocide from continuing.

    1. Feral Finster

      “Very strong case now that all countries are required under the Genocide Convention to act and prevent the genocide from continuing.”

      They will not do so, and the US will twist arms as necessary to ensure that other countries ignore their own laws, unless they are made to do so.

      “Don’t quote laws to us. We carry swords.” – Gnaeus Pompeius

  9. Carolinian

    Great news and thanks for the coverage. We may be about to see the limits of Hasbara, aka they pretend to tell the truth and we pretend to believe them. I’d say one reason for the remarkable explosion of Zionist criticism here and elsewhere is that anyone who cares to know the truth about the ME situation has long had the means to do so even as the “respectable” media spin and spin some more.

    Meanwhile the court has arguably had some effect already with the talk of a two month ceasefire. An international condemnation of the Gaza attack could turn that into a longer lasting stand down that Hamas could accept.

  10. Aurelien

    What’s really interesting here is the almost contemptuous dismissal of the Israeli argument that there was no “dispute” between Israel and South Africa. Had the judges agreed with Israel then the case would have fallen at the first hurdle. I still think that case could be argued either way, but the judges gave a ringing endorsement of the SA argument, which suggests that, whilst this ruling is very limited in scope, it is also perhaps a coded signal that the Court does not feel shy about getting further into the merits of the case itself as we go. Watch this space.

    1. Es s Ce tera

      The Israeli legal team was sending their own coded signals, I think, and the justices (and probably the whole legal world) were picking up on it loud and clear. Why didn’t the Israeli team argue on facts, pick apart each and every one of the SA claims? They didn’t precisely because they couldn’t, the facts were against them, indisputable. So theirs was the only defense they could muster, misdirection, which in itself speaks volumes. Therefore, the same will hold true when the court judges on the merits, the justices have been given a bit of a preview as to what is coming, which probably explains why they aren’t shy.

  11. Tom Doak

    I still have my AOL mail account, and of the top 59 headlines from AOL News, there is nothing yet on the ICJ ruling. They are obviously still awaiting their phone call to be told what to say.

  12. Altandmain

    I think the ICJ did not have had a choice. They would have totally lost credibility with everyone outside of the West had they ruled in Israel’s favor. The legal team the South Africans used had very solid legal arguments and the Israeli defense was very weak.

    The ICC has lost credibility already and is seen as a Western kangaroo court.

    I’m very reluctant to cite Al Jazeera, as Brian Berletic once noted, their coverage of Gaza is good, but very much Western MSM on China and Russia.

    The ICC loss in credibility is also because of what happened against Russia, where the ICC wrongfully (and quite deliberately) accused Putin of removing children, for whom Russia was trying to protect. Had the ICJ followed the ICC, it would be over for the Western “rules” based order. They can’t even pretend to the Global South anymore.

    If the Western world huffs and puffs in rage, well they are only going to further hurt their credibility among the Global South, which is already being strained.

    It’s a win, but largely a symbolic one. Israel will defy the ICJ, the US will attempt to retaliate against those who ruled against Israel. Meanwhile, the US will provide diplomatic cover through its UN veto pressure other nations to fall in line with the US or risk sanctions, and supply additional weapons to Israel. We may also see this expand into a regional war.

    1. JonnyJames

      I agree, but, despite the spin of the Zionist MassMedia, at least this will be a major PR disaster for Israel and a symbolic victory that may serve as a legal precedent in future. As the power of the US continues to decline, so too will its ability to support and protect Israel. The writing is on the wall…

      1. ChrisFromGA

        It’s a PR disaster for the US, as well. Since they’re providing some of the weapons used to commit genocide and, more importantly, air and sea cover.

        Don’t expect anyone in Congress to make this point, except maybe Rashida Tlaib.

  13. David in Friday Harbor

    Very good analysis!

    It is especially insightful about why the ICJ can’t order a ceasefire. The ICJ does not have jurisdiction over Hamas and a one-sided ceasefire order would be futile and ineffectual. However, the ICJ order is quite clear that the Israelis are to desist from the killing of Palestinians forthwith. This is a close to a ceasefire as the ICJ’s jurisdiction allows.

    My quibble is with the stated October 7 casualty rate. I’m still haunted by the images of a lot full of twisted and burned cars that were evidently blown-up while fleeing the Supernova festival in Re’im — that the Israelis have now conveniently buried. There’s no way that a bunch of militants on motorcycles waving around Kalashnikovs could have blown-up cars that way, even if they were able to throw hand-grenades like Bob Gibson threw baseballs. Those cars look like the images from Iraq of cars after Hellfire missile hits. Only the Israeli Apache helicopters were firing missiles that terrible day.

    The October 7 attack on civilians and taking of hostages was indeed awful, but I’m concerned that its brutality may be overstated — and am still concerned that it may have been allowed to happen in order to create a pretext for genocide.

    1. Mario Golden

      There has been ample, carefully documented reporting (eg, The Electronic Intifada, Grayzone, +972 Magazine) pointing to IDF indiscriminate attacks, commanded at the highest levels per the Hannibal directive, that led to the large scale destruction of homes and vehicles and the killing of Israeli civilians on Oct 7.

  14. ISL

    From a 30,000 ft view, all the US arm twisting came to naught (2 against 15). At the same time, Russia is upgrading its alignment with the Houthis and Iran (and flying the Golan Heights)* against the US/Israel axis. The inability of US behind-the-scene pressure to sway the court is a serious sign of decline.

    It’s as if the Mafia Don, who openly terrorizes the community, suddenly finds no one is listening to pronouncements.

    *Also see Africa shifts with France pushed out and Russia providing military aid and advisors (reconstituted Wagner) against the backdrop of growing Chinese trade (at a significant cost advantage thanks to the Red Sea closure).

    1. isl

      Also, had the ICJ , ruled against SA on procedural aspects, then it would have further cemented the view that western international institutions are “rules based (the rule is whatever we say it is)” and thus likely not to survive the transition to the new world where economic strength is overwhelmingly not in the West (the historical norm of the last few millennia). Its ruling (Israel must follow the genocide conventions it signed) causes problems for (in the case of the US wrt Israel) advancing the rules-based order.

  15. JonnyJames

    Thank you for the painstaking detail and documentation included in this post.

    I’m not sure if pessimist is the right word: maintaining a healthy skepticism, based on facts and past precedent might be more appropriate. I like to consider myself as an optimist that gets bogged down in pesky facts and significant context. The “shoot the messenger” mentality causes others to say “you are arrogant, cynical, pessimistic, overly skeptical”, or something similar. Then when the “pessimistic” prognostication proves true, others are even more pissed off because they don’t want admit “I was told, but I didn’t listen” even if nothing like that is said, the implications are there. That’s why I usually say “I hope I am wrong”

    “porcine maquillage” that’s a diplomatic, Frenchified way of saying it, put a smile on my face, cheers!

      1. JonnyJames

        That’s what I’m talkin bout! You said it much more efficiently than my overly verbose comment.

      2. cousinAdam

        I’d dare say that particular style of lipstick is in shorter supply than 150mm artillery shells these days. ¡Que lastima!

  16. notabanker

    It is not all one sided in the western media:
    AP Headline – Top UN court orders Israel to prevent genocide in Gaza but stops short of ordering cease-fire

    The article goes on to say: “The court’s half-dozen orders will be difficult to achieve without some sort of cease-fire or pause in the fighting.” and that Israel will be under a legal lens for years to come.

    The Guardian: This momentous ICJ ruling may be brushed aside by Israel – but the US and UK can’t afford to ignore it. “The rulings, all passed by either 16-1 or 15-2 – even the appointed Israeli judge, Aharon Barak, sided twice with the majority – are devastating for Israel, though a final judgment is still a long way off. Meanwhile, those governments which argued that South Africa’s case was empty and illegitimate now need to dig themselves out of the hole of their own creation.”

  17. Carolinian

    So far this considerably less optimistic Joe Lauria is the only other article i’ve seen on this.

    He doesn’t get into whether the attack on Gaza is a “war” as Israelis describe it and therefore a ceasefire would be interfering. Meanwhile defenders of the decision say the demand for aid implies a ceasefire for the aid to be supplied. Netanyahu is spinning it as a victory for Israel.

    But then Nikki Haley–ardent Zionist–is spinning New Hampshire as a victory for her. Less than great minds think alike.

    1. Es s Ce tera

      This is an important point because the South African oral arguments started with, repeated numerous times throughout, and concluded with, the fact that this did not start on October 7th but has been going on for 70+ years. When it comes time to weigh on the merits, the facts in evidence will include 70+ years worth of Israeli words and deeds, what the Israelis lovingly call “facts on the ground”, the changing of which has been their entire strategy for 70 years, will now come to haunt them.

  18. kemerd

    What is more remarkable is even Israeli judge did not buy what Israel was selling.

    Of course, Israel already declared the court anti-semitic. Now it seems that sort of attack lost its power for a long time.

  19. none

    What is up with Uganda? Was Israel trying to resettle the Gazans there and does that create a political alliance? I have lost track. I remember something about Rishi Rish trying to move UK migrants to Rwanda which is sort of the same idea though.

  20. Tom Stone

    Of all the horrors the USA has committed during my 70 years enabling this slaughter of the innocents has hit me emotionally harder than any other crime committed by my Country.
    Perhaps because there is no fig leaf, not even a lame excuse, and perhaps because it is the stupidest of the many atrocities the USA has committed during those decades.


    1. ChrisRUEcon

      I’ll try to find the Tok, but a young South African woman made one recently where she was explaining that ZA (Zuid Afrikka) was “playing a game”. The “game”, she suggested, was to use the ICJ to expose the West’s hypocrisy. The real cost is this further lifting of the veil. It will give more impetus for the emerging dipole of the bipolar world to gather up more partners from the global south. ZA is crucial to the emerging bipolar order. The next thing I’d like to see rendered irrelevant is the UN itself. I want to see a new league of nations evolve and I want its headquarters in South Africa!

  21. Carolinian

    Moon says the court did order Israel to cease firing.


    Indicates the following provisional measures:

    (1) By fifteen votes to two,

    The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:

    (a) killing members of the group;

    (b) causing serious bodily or mental harm to members of the group;

    The court clearly orders Israel to take all(!) measure to prevent the killing or wounding of Palestinians.

    1. Yves Smith Post author

      Sorry, that is a misreading by Moon.

      The Genocide Convention bars actions to harm or destroy (broadly defined, such as impeding birth and creating conditions hostile to life) for the members of a protected group for being part of that group. There is no prohibition against killing Palestinians for being Hamas members.

  22. Joe Well

    Jeremy Scahill in the Intercept:

    “The bottom line is that the court has ruled that Israel should stand trial on charges of genocide in Gaza and ordered it to stop killing Palestinians in Gaza. But the U.S. and Israel clearly believe the court’s ruling contains a significant loophole that Israel can exploit to continue its war against Gaza.”

    In other words, for the moment, nothing will change, because the US and Israel are rogue states that will just spin up an alternate reality. But the legal case has been laid to get a lot of people in Washington and Tel Aviv in a lot of trouble in the future.

  23. john r fiore

    I know lawyers who are already preparing civil suits against the weapons makers for complicity in genocide….trust me…thanx to the ruling, the floodgates have been opened and no spin, however cleverly configured, can stop it….ever…

  24. Rubicon

    It’s a well know fact that the US has never and WILL never recognize that Court. Per usual, w/ that court’s ruling, the US & poodle vessels, immediately exacted revenge on it. See that news on Twitter.

  25. maray

    Within a day of the court ruling, the Israelis attack UNRWA,with no proof and the west immediately block aid to Palestine again. Israel has accused UNRWA of being involved in terrorism but this is because Israel calls all Palestinians terrorists.
    With Holocaust memorial day, the Holocaust publicity mentioned Jews killed during WW2 but did not mention any other group (Jews are No8 on the IMB database that the Nazis used), they mention Rwanda and Cambodia but not the US atrocities nor any of the Israeli massacres of Palestinians
    sabra shatila yarmouk deiryassin gaza jenin tanura
    The west will ignore the court and it will continue to support the lies and abuses of Israel, public protests are essential, particularly now that the US is moving nuclear weapons back to Europe and is planning for a major war with Russia within 6 years

  26. John Jones

    It might be a great outcome but for whom?

    It’s not apparent what the ICJ’s enforcement capability is. Great, we have global law’s but we can’t stop the perpetrators.

    It’s seems that Israel isn’t too worried about its international reputation ( save for the US).

    Plus, the very concept of ‘international law’ seems to be quite nebulous currently ( thinking here Ukraine/Russia which has no meaning in any real sense) .

    What can force Israel to comply with the ICJ?.Pariah status doesn’t cut the mustard.

  27. vidimi

    Craig Murray has a very good take on the ruling. He called the Uganda judge decision too.

    Some voices on twitter were dismayed that the court failed to impose a ceasefire. Understandably, Palestinians are upset as they will keep getting murdered en masse. The court did everything it could, though, and it’s up to the nations of the world now to step up.

    As Arnaud Bertrand commented, this looks to be a collision of the US Rules Based Order with International Law.

    This breakdown is sure to increase conflict with the West on the wrong side of history. The West cannot and will not win, so our choice as citizens will be to either bring down our ruling elites or go down with them.

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