The International Court of Justice’s decision on Israel’s conduct in Gaza stops short of calling for a ceasefire—but casts a pall on Holocaust remembrance ceremonies

The International Court of Justice stopped short of ordering a ceasefire in the ongoing war between Hamas and Israel, but ordered Israel to take steps during fighting to prevent genocide, in a decision released in The Hague on Jan. 26.

The court also ordered Israel “to prevent and punish” incitement to genocide against Palestinians.

The charge that Israel was committing genocide had been brought by South Africa. Israel had strenuously argued that it had a right to defend itself and that it was targeting Hamas terrorists and not Palestinian civilians.

The court also ordered that more humanitarian aid be allowed into Gaza and called for the Israeli hostages still being held in Gaza to be released.

The case before the ICJ stems from an attack on Israel launched by Hamas terrorists on Oct. 7, that left 1,200 Israelis dead and saw about 250 people taken as hostages. About 135 hostages are still believed to still be in Gaza.

Israel launched a full-scale assault on Gaza, with the largest call-up of military reserves in its history. The Gaza Health Authority, which is controlled by Hamas, estimates that over 25,000 Gazans have been killed. Israel has said it has killed 9,000 combatants.

Israel is to report to the court in a month on what it is doing to respect the decision.

While the decision carries symbolic and political weight, the court has no enforcement mechanism. The decision is a provisional ruling and it may be years before a final decision is issued.

The Canadian government, unlike other Western governments, had refused to comment on the merits of the case, before it was heard. In a statement issued by Global Affairs Canada on Friday, after the decision was issued, Canada continued to take a non-committal position.

“Canada supports the ICJ’s critical role in the peaceful settlement of disputes and its work in upholding the international rules-based order,” the statement read.

“Our support for the ICJ does not mean that we accept the premise of the case brought by South Africa. It is for the ICJ to make a final decision on the case, which it has not done today. We continue to follow the case very closely.

“Canada will continue to support Israel’s right to exist and defend itself, in accordance with international law. Nothing can justify Hamas’ brutal attacks on Oct. 7, including the appalling loss of life, and the heinous acts of violence perpetrated in those attacks, including sexual violence.

“Canada remains deeply concerned about the scale of the humanitarian crisis in Gaza and the ongoing and serious impacts on Palestinian civilians. Canada continues to support urgent international efforts towards a sustainable ceasefire. This cannot be one-sided. Hamas must release all hostages, stop using Palestinian civilians as human shields, and lay down its arms.”

The decision, which was released on the day that International Holocaust Remembrance Day was observed around the world, was harshly criticized by the Jewish community.

Mark Freiman, a former Ontario deputy attorney general and the co-chair of Centre for Israel and Jewish Affairs (CIJA)’s Legal Task Force Rapid Response Team, pointed out two basic points of agreement are that Palestinian civilians living in Gaza deserve to be protected, and that the hostages should be released immediately.

But while the toll of the war has been overwhelming, it is not necessarily genocide, he said in an interview with The CJN.

“The genocide convention was the wrong instrument to attempt to apply, and the court has not given any backing to that approach to protecting the safety of civilians.

“There’s a distressing tendency to turn genocide as a concept into the equivalent of many deaths,” he said.

“So anytime there’s many deaths, we think of it as a genocide, and that’s not what genocide means. Genocide is very specific. It means a deliberate plan to wipe out a given group of people, in whole or in part, and the in whole or in part is there only because it’s so very difficult to successfully wipe a group of people off the face of the earth.”

Freiman listed the Holocaust and the Armenian and Rwandan genocides as examples where the genocide convention is applicable.

“Those were deliberate, conscious efforts to eliminate a group of people. It doesn’t apply just because there are mass deaths in a given situation of armed conflict, and it cheapens the concept of genocide when one tries to apply it in a concept of armed conflict where there are mass deaths. That disturbs me a great deal.”

The court deferred a close analysis of what is involved in genocide and what isn’t, which Freiman said he found disappointing.

“Instead [the court] contented itself in saying ‘well, it’s possible that this could fit under a definition of genocide’ rather than confronting [it with] close analysis, which I think is absolutely necessary.”

“It hasn’t found that Israel is committing genocide, has committed genocide, or is likely to commit genocide. It’s unfortunate, because a sloppy reading could lead to the impression that the court has given credence to the concept that Israel has, is, or may be likely to be committing genocide, which is not what the judgement says.”

Freiman points out that while those supporting the case against Israel may spin the decision as a win, South Africa didn’t achieve any of its goals.

“[The ruling] explicitly states there’s no decision on the merits, and postpones the decision on the merits to some future date. The interim decision is simply to say that Israel has an obligation not to violate the genocide convention [as does every state].”

The decision is binding though not enforceable. Freiman says that if Israel chooses to report back to the court in one month as ordered, that would present an opportunity to continue its defence.

“Israel went a long way in its defence to demonstrate that it had no genocidal intent … that it had enacted specific provisions within the military to prevent the kinds of military actions and behaviours that would amount to the kinds of things that might be described as genocidal actions.”

“If [Israel] chooses to prepare a report, it could go into the kinds of things that [it’s] highlighted in its own defence, and it could go even further.”

The Oct. 7 attacks and the ICJ decision cast a dark shadow on the commemoration of International Holocaust Remembrance Day, marked in Ottawa on Friday.

“The International Court of Justice was recently presented with a blood libel against Israel, solely in an effort to tie its hands in defending its innocent citizens against pure evil,” Iddo Moed, Israel’s Ambassador to Canada said in his remarks at the ceremony held in the rain at the national Holocaust memorial.

“This (case) is not just bad for Israel and the Jews but it has the potential of diminishing the credibility of the international rule-based system that has contributed greatly to the security and prosperity of Canadians and of all people. Israel calls on all those genuinely committed to the solemn promise of never again, enshrined in the genocide convention, to reject the unconscionable efforts to destroy the truth in support of a genocidal terrorist organization.”

The J7, an organization of major Jewish organizations in the world’s largest Diaspora communities including Canada formed to fight antisemitism, said the court’s provisional measures will be misconstrued by some who will assume that Israel is committing acts of genocide.

Rather than recognizing Israeli efforts to minimize civilian casualties—as per its obligations under international humanitarian law, by which it fully abides, the ICJ has sent a confusing and convoluted message that grants legitimacy to Hamas, an actual genocidal group, whose founding charter calls for anti-Jewish violence and other forms of antisemitism and extremism,” the group said in a statement.

“Opponents of Israel are shamelessly politicizing the Genocide Convention, making a mockery of actual genocides, past, present and future. It is part of a broader, morally obscene anti-Israel campaign, led by South Africa, with the backing of the Iranian regime and other governments hostile to the Jewish state,” the group said.

B’nai Brith Canada said in a statement that the provisional decision could have “negative ramifications” for Canadian Jewry.

“Today’s ruling, which brings into question the legitimacy of Israel’s present actions in Gaza, will only intensify the anti-Israel demonstrations routinely occurring across the country,” Richard Robertson, B’nai Brith Canada’s director of research and advocacy said in a statement. “That is why this is a nightmare scenario for Canadian Jews, as past protests have led to increased incitement against the Jewish community.”