Two preliminaries: First, I know virtually nothing about either the Court of International Justice, or about the Genocide Convention. Secondly, I know that I said something of this yesterday on a Facebook post, but…..so be it.

In its preliminary decision yesterday, the Court said the following: ”The court ……. is gravely concerned about the fate of the hostages abducted during the attack in Israel on October 7, 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release.”

Why isn’t anyone talking about this as the one clear, precise act that the Court is ordering in its ruling. Other than that, it simply tells Israel that it is a party to the Genocide Convention and therefore has to abide by it. Sure, it didn’t dismiss the case outright, and didn’t tell South Africa that it had no standing, but that wasn’t surprising to me for any number of reasons. And it said that it would have to undertake a much more definitive study of the matter before concluding that Israel was in violation of the treaty, but on a preliminary basis said that the allegations made by South Africa, and the facts as they are known today, make it possible that the treaty is being violated, and that is why further study is being undertaken.

And it made some preliminary orders. First, that Israel not violate the treaty (duh). Second, that Israel report to the Court if the government concludes that the treaty has been violated. Three, that Israeli officials not issue statements calling for violating the treaty. Presumably these orders (not very burdensome) are “binding” on Israel, since it is a party both to the Court and the Genocide Convention, although there is no way for the Court to enforce its ruling.

But what about the “call” for the immediate release of the hostages? Is that also an “order” of the Court, or is a “call” something different? And if it is something deemed less serious, is that because Hamas and the “other armed groups” are not party to the case, or that they have not ratified the Treaty or placed themselves under the jurisdiction of the Court, or because they don’t even constitute a “government” and Gaza does not even constitute a “state”? I have no idea.

So, to me, either side can declare a moderate victory here. Neither side was asked to stop fighting, Israel was not declared in violation of the Genocide convention, but Israel was put on notice as to what types of actions could lead to a treaty violation.

But that is not what is happening. Hamas and all of its allies are declaring victory, saying in effect that Israel has been found guilty, and that the only way Israel can avoid treaty violations it to stop fighting. This of course (I think, of course) is faulty logic, because the items that constitute genocide must be put together as a whole to determine if genocide is being committed. Each of the individual items is something that takes place in every war.

On the other hand, Israel is not declaring any sort of victory (although they could have been determined to be in treaty violation and could have been ordered to stop fighting immediately), but it outraged that the case hasn’t been immediately dropped. And for some reason, Israel and its allies are not focusing on the “call” to release the hostages.

One other matter: South Africa is obviously not a party to the war. So how can they bring this case, and why (it appears) did Israel not raise the question of standing? It’s because the Court concludes that it is in the interest of every party to the treaty to make sure that genocide doesn’t occur, and therefore any state would have standing to sue. I don’t think this is a new interpretation, but it does lead to the question of why state after state does not bring case after case to countries which could equally be accused of genocide (Myanmar and the Rohingyas, for example, or China and the Uyghurs, not to mention all of the Islamist attacks around the world). Seems like something that should be done, no?

The next question is: what will this mean on the ground. Will it be Hague, Schmague, as one Knesset member put it, or will there be any changes? Will right wing Israelis tone down their rhetoric? Will a reasonable post-war plan for Gaza be developed? And how does the turmoil within UNRWA (12 now fired staffers accused of collaborating with Hamas) fit into the picture? It has long been time that UNRWA should disappear. But now maybe some new rebuilding organization will need to step in.

It’s Holocaust Remembrance Day today. What is the opposite of serendipity?