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

PDF and Audio Versions of This Article

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.

What the ICJ Ruled—and Why It's Being Misrepresented

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.

Judge Joan Donoghue's Obfuscation of the ICJ's Ruling

When the former president of the ICJ stated on BBC Hardtalk that the Court “didn’t decide that the claim of genocide was plausible”, she was doing the world a disservice by obfuscating instead of clarifying the meaning of the Court’s ruling.

The show’s host, Stephen Sackur, asked,

Would it be fair to say—and I am no lawyer and many people listening will not be lawyers—but would it be fair that the key point that you made your initial order and ruling upon was whether or not there was a plausible case that should be taken on by the Court of genocide in the case of Israel’s actions in Gaza after October 7, and you quite clearly decided that there was a plausible case? Is it right to say that’s at the heart of what you decided?

Anyone can read the documents and see that this is fair and correct, yet Donoghue seemed to suggest that it was not. Without explicitly saying that Sackur was mischaracterizing the case, she replied as follows (emphasis added):

You know, I’m glad I have a chance to address that because the Court’s test for deciding whether to impose [provisional] measures uses the idea of plausibility, but the test is the plausibility of the rights that are asserted by the applicant, in this case South Africa.

So, the Court decided that the Palestinians had a plausible right to be protected from genocide and that South Africa had the right to present that claim in the Court.

It then looked at the facts as well, but it did not decide—and this is something where I’m correcting what’s often said in the media—it didn’t decide that the claim of genocide was plausible.

It did emphasize in the Order that there was a risk of irreparable harm to the Palestinian right to be protected from genocide but the shorthand that often appears, which is that there’s a plausible case of genocide, isn’t what the Court decided.

These statements by Donoghue are correct only in a narrow, technical sense. All she is really saying is that the ICJ didn’t use the language that there was “a plausible case of genocide” but instead that “the Palestinians had a plausible right to be protected from genocide”.

It’s a rhetorical argument that draws a distinction without practical significance. To interpret the Court’s technical language as not meaning that a plausible case had been presented that Israel was violating the Convention is logically incoherent.

If it was Donoghue’s intent to deny a finding of plausible genocide or to characterize the BBC host’s framing as fundamentally incorrect, then she was being extraordinarily disingenuous.

Logically, the fact that the ICJ ruled that “there was a risk of irreparable harm to the Palestinian right to be protected from genocide” necessarily means that the Court viewed South Africa’s case as being plausible.

Conversely, if the ICJ did not view the case as plausible, it would not have perceived a risk of irreparable harm to the Palestinians’ right to be protected from genocide.

The argument by UKLFI and other apologists for Israel’s criminal violence is inherently self-contradictory, representing pure cognitive dissonance.

Logically, it cannot be true that the ICJ perceived the Palestinians’ right under the Genocide Convention to be at risk of irreparable harm but also true that the ICJ did not find South Africa to have presented a plausible case that Israel was violating the Convention.

Logically, had the ICJ not found South Africa’s case to be plausible, there would have been no basis for the Court to issue provisional measures ordering Israel to take concrete steps to demonstrate compliance with the Genocide Convention.

So, the “shorthand” interpretation of the ICJ’s order that a plausible case of genocide had been made needs no correction. It’s not the precise language used by the Court, but it is nevertheless accurate.