The ICJ Did Rule That Israel Has Plausibly Committed Genocide in Gaza

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Key Points

• On January 26, 2024, the International Court of Justice (ICJ) ordered Israel to take provisional measures to demonstrate compliance with the 1948 Genocide Convention—including ceasing indiscriminate attacks on civilians and allowing humanitarian aid into Gaza.
• For the ICJ to issue such measures, it is required by its own legal standard to find that the rights being protected are “at least plausible” and at risk of irreparable harm.
• The ICJ found exactly that: the Palestinians’ right to be protected from genocidal acts was plausible and faced a real and imminent risk of irreparable harm due to Israel’s conduct.
• This is logically equivalent to finding that Israel was plausibly committing genocide. There is no coherent interpretation of the ruling that separates these two conclusions.
• Defenders of Israel’s actions claim the ICJ only found Palestinians to have a “plausible right” to protection—not that the claim of genocide was plausible. They cite former ICJ President Joan Donoghue stating in a 2024 BBC interview that the Court “didn’t decide that the claim of genocide was plausible.”
• Donoghue’s statement is technically accurate regarding the Court’s precise language, which does not change the logical meaning of the ruling. The distinction Israel’s defenders try to draw is self-refuting: a plausible right to protection from genocide cannot be “at risk of irreparable harm” unless genocidal acts are plausibly being committed.
• That it is accurate to say that the Court found Israel to plausibly be violating the Genocide Convention is confirmed by the Gambia v. Myanmar precedent, South Africa’s own legal arguments, the ICJ’s ruling documents, and the responses of numerous UN Special Rapporteurs and international legal scholars.

The Legalistically Obtuse Argument

On December 29, 2023, the government of South Africa filed an application at the  International Court of Justice (ICJ) to institute proceedings against Israel for violating the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).

On January 11, 2024, South Africa requested the ICJ to issue provisional measures to immediately protect the Palestinians in Gaza from irreparable harm. The argument presented was essentially that the Court did not need to determine that genocide was occurring to act; it was sufficient that a plausible case had been made that genocidal acts were occurring.

Two weeks later, on January 26, the ICJ acceded to South Africa’s request and issued provisional measures, ordering Israel to take actions to demonstrate its compliance with the Genocide Convention, including ceasing indiscriminate attacks on civilians and civilian infrastructure and allowing humanitarian aid into Gaza on the scale required to meet the population’s needs.

Thus, the ICJ concurred with South Africa that it needn’t determine that Israel was committing genocide to act to protect the Palestinians; it sufficed that a plausible claim had been made that their right to be protected from genocidal acts under the Convention was at risk of irreparable harm.

To summarize it plainly, the ICJ ruled that Israel was plausibly violating the Genocide Convention. To put it another way, the Court determined that Israel was committing a plausible genocide.

Yet, defenders of Israel’s assault on the civilian population and infrastructure of Gaza claim that the ICJ did not rule that a plausible genocide was occurring.

Their argument is that the Court only determined that the Palestinians have a plausible right to be protected from genocide, not that a plausible case had been made that Israel was violating the Convention.

To support this argument, Israel’s apologists quote from a BBC Hardtalk interview with Judge Joan Donoghue, who was President of the ICJ when it issued the provisional measures order against Israel, and who told the host that the ICJ “didn’t decide that the claim of genocide was plausible.”

The group UK Lawyers for Israel (UKLFI), for instance, asserts that “The  former President of the International Court of Justice (‘ICJ’), has confirmed that the ICJ did not find there was a plausible case of genocide against Israel.”

Instead, “the ICJ’s Order had found that the Palestinians and South Africa have plausible rights under the Genocide Convention, but had not found that there was a plausible risk of genocide.”

However, the claim that the ICJ did not find there to be a plausible risk of genocide is both false and nonsensical.

While the ICJ used technical procedural language describing the plausibility of Palestinians having “rights” under the Genocide Convention, in plain English, it is accurate to say—as numerous UN Special Rapporteurs and other legal scholars have done—that the determination was made that Israel was plausibly committing genocide.

Had that not been the case, logically, there would have been no basis for the ICJ to order the provisional measures.

The fact that the ICJ did determine that a plausible case had been made that Israel was committing genocide is easily demonstrated by simply examining the relevant court documents.

First, though, let’s take a closer look at the statements made by the former ICJ president.