J Street Responds to Provisional Measures Ordered by the International Court of Justice in South Africa Petition Against Israel

January 26, 2024

The International Court of Justice today delivered a ruling on interim, provisional measures in the case initiated by South Africa alleging Israel has breached parts of the Convention on the Prevention and Punishment of the Crime of Genocide.

In today’s ruling, the ICJ makes clear that its decisions and orders in no way constitute a final judgment. As J Street has previously stated, we reject the allegation of genocide in this case. We share the opinion of Israel’s former Supreme Court Justice Aharon Barak – appointed by Israel to serve as an ad hoc judge in this case – that South Africa had other options other than to bring this case under the Genocide Convention and his view that many of the measures ordered by the Court simply restate Israel’s pre-existing obligations under other provisions of international humanitarian law.

At the same time, we recognize that the Genocide Convention and the International Court of Justice are core elements of the rules-based international order that arose in the aftermath of World War II – all the more important to the Jewish people as they emerged from the Holocaust.

In today’s judgment, the ICJ rightly recognized the horrific scale of the October 7 attack in Israel, called on all parties to abide by international law, and noted it was “gravely concerned” for the fate of hostages still held in Gaza, calling for their “immediate and unconditional release.” It is important to note that the Court has no jurisdiction over Hamas, as a non-state actor, and that the accountability for the ongoing violations of international law by Hamas is unaddressed within this specific case.

The court also noted the devastating impact of the Israeli government’s military response in Gaza, including catastrophic levels of death, destruction and displacement and an ongoing humanitarian disaster.

In its ruling, the ICJ underscored a number of concerns raised previously by both J Street and the Biden Administration. Significantly, the court did not support South Africa’s request for the court to order Israel to “immediately suspend its military operations in and against Gaza.” Specifically, the court ordered the Israeli government to:

  • Ensure the Israeli military does not commit breaches of the Convention, and that Israel acts to prevent breaches of the Convention, by protecting civilians in Gaza;
  • Prevent and punish extremist, dehumanizing language which may be considered “direct and public incitement” to commit genocide;
  • Take “immediate and effective” steps to facilitate the urgent delivery of basic services and aid to address the catastrophic humanitarian situation in Gaza;
  • Preserve any evidence of potential violations of the Convention; and
  • Submit a report on actions it has taken to uphold these orders within one month.

The judgment was supported by an overwhelming majority of the court’s 17 judges and was led by ICJ President Judge Joan Donoghue, former State Department Principal Deputy Legal Adviser under Presidents George W. Bush and Barack Obama. Importantly, Judge Aharon Barak supported orders related to delivery of humanitarian aid and the prevention of incitement.

Orders from the ICJ are binding under international law. In light of today’s ruling, we call on the Israeli government to comply in full with the letter and spirit of the ICJ’s ruling. We continue to note Hamas’ blatant, ongoing violations of international law – including hostage taking and indiscriminate rocket fire – and urge the international community to continue efforts to pursue justice and accountability.

As J Street has previously stated, the United States must press the Israeli government for an immediate and significant shift in military strategy and tactics in Gaza to ensure the safety of hostages and civilians. We continue to press both the US and Israeli governments to work urgently to reach a long-term halt to hostilities to secure the freedom of hostages and an end to the devastating violence in Gaza.

We also call on the Biden Administration to show leadership at the United Nations, and consistency in US support for international law and institutions, and urge it not to block efforts in the UN Security Council to ensure this ruling’s enforcement.