International Court of Justice Orders Israel to Prevent Acts of Genocide in Gaza War

Interview with Robert L. Herbst, civil rights lawyer in New York, conducted by Scott Harris

History was made on Jan. 26 when the International Court of Justice issued an interim ruling on South Africa’s charge that Israel had violated the Genocide Convention in its war in Gaza, that has thus far killed more than 26,000 Palestinians, destroyed most of the territory’s civilian infrastructure and displaced 75 percent of Gaza’s 2.3 million residents.  This is only the fourth time that a country has brought a genocide case before the court.

In its ruling, the ICJ declared it had jurisdiction to rule in the case, rejecting Israel’s call for the charge to be thrown out, although the justices did not order a ceasefire that South Africa had demanded. The court ordered six provisional measures, including for Israel to take action to prevent genocidal acts, prevent and punish the direct and public incitement to genocide, and take immediate and effective steps to ensure the provision of humanitarian assistance to civilians in Gaza.

On the same day as the ICJ issued its ruling, Israel publicly alleged that 13 employees of the United Nations’ main relief agency in Gaza, UNRWA were associated with Hamas’ Oct. 7 terrorist attack on Israel that killed 1,200 Israelis and captured 240 hostages. In response, UNRWA fired those employees and the U.S. and some allies suspended funding to the agency. Between The Lines’ Scott Harris spoke with Robert L. Herbst, a civil rights lawyer in New York, who served as a federal prosecutor in Chicago and Philadelphia. Herbst is co-chair of the U.S. chapter of the Israeli Committee Against House Demolitions, a former coordinator of the Westchester New York Chapter of Jewish Voice for Peace, and served as an independent investigator and prosecutor for the International Criminal Tribunals for Rwanda and Sierra Leone. Here he looks at the ICJ’s interim ruling on Israel, and considers how the court’s orders could be enforced.

ROBERT HERBST: Israel was ordered to take all measures to ensure that acts deemed genocidal under the Genocide Convention do not take place in Gaza. Secondly, to ensure that its military, the Israeli military does not commit genocidal acts.

Third, to prevent and punish incitement to genocide. Fourth, to enable and facilitate the provision of basic services and humanitarian assistance for the people of Gaza.

Fifth, prevent destruction of and preserve evidence of genocide in its military operations. And last, but not least, a report to the court within one month about its compliance with the first five provisional measures.

It is a historic ruling by the United Nation’s highest court. As a result of it, all state parties of the Genocide Convention, including Israel and the United States now have a binding legal obligation to make sure that any genocidal acts come to an immediate halt.

It is the huge moment for the International Court of Justice and a huge victory for the rule of law. It could have gone the other way. It didn’t.

SCOTT HARRIS: Robert, what do you make of Israel and the U.S. response to the International Court of Justice ruling here? Previously, the Biden administration has said that the case was meritless and without any factual basis. And, of course, as you’d expect, Prime Minister Netanyahu of Israel has basically claimed the court’s ruling was outrageous and rejects all the provisions that were made in the finding of the court.

ROBERT HERBST: Well, I think we got to watch what Biden and Netanyahu and the United States and Israel does, not so much what they say. I think this is a huge political and public relations defeat for Israel, which now stands in the international dock of shame, the world’s highest court having found that its credibly been accused of genocide.

And look what has happened.

The New York Times reported that the parties seem to be closing in on a deal for a two-month truce, a full cessation of hostilities, which would not just permit the joint release of hostages and political prisoners from both Gaza and Israel. But it would permit the aid to come in. And there is as, The Times reported an anticipation or an expectation that the two-month cessation of hostilities be extended and become essentially permanent.

Now, I don’t know if that deal will go through, but the fact that knowledgeable people are reporting that in the wake of the court’s decision, the deal is close, I think is a better indication of the impact of the court’s decision than what the parties are saying.

And in fact, Algeria, which is a nonpermanent member of the Security Council, you know, they serve two-year terms as they’re not a permanent member, has exercised its right to call for a meeting of the Security Council to discuss how to enforce the provisional measures that the court has imposed on Israel.

And I think, you know, that’s keeping the pressure on Israel and the United States. And it raises the question whether the U.S. is going to veto a Security Council resolution designed to enforce the provisional measures of the world’s highest court.

It may, the United States may do it, but I’m not fully convinced that Biden will feel comfortable going down in history as the U.S. president, who defied a court order from the highest court in the world and permitted genocide to continue. You know, it’s hard. It’s hard to say, but I think the decision is having an important impact.

And I will just add that on the same day it was issued, it was cited by the federal judge in California hearing the case against Biden, Blinken and Austin for facilitating and being complicit in Israel’s genocide. He held a three-hour hearing and he ended it by saying the most difficult decision he has to make in 20 years on the bench.

So, again, no one knows how it’s going to come out. But the fact that he cited the International Court of Justice decision and seemed to give it significant weight, I think is an indication that this is not just a hill of beans or, you know, the paper that it’s printed on, but that it’s a very, very meaningful event.

Listen to Scott Harris’ in-depth interview with Robert Herbst (25:55) and see more articles and opinion pieces in the Related Links section of this page.

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