Whatever we call it, it needs to stop now.

The ICJ interim decision adds little to what we already knew.

I sometimes sing “Blowin in the Wind” to my kids. One of Dylan’s lines is:

How many deaths will it take ‘til he knows that too many people have died?

I don’t know what the number is, but I do know that we’re well past it in Gaza.

In its interim decision today, the International Court of Justice recapped the destruction at paragraph 46:

While figures relating to the Gaza Strip cannot be independently verified, recent information indicates that 25,700 Palestinians have been killed, over 63,000 injuries have been reported, over 360,000 housing units have been destroyed or partially damaged and approximately 1.7 million persons have been internally displaced.

ICJ ad hoc Justice Barak notes at para 36 of his separate decision that the figures come from the Ministry of Health of Gaza, which is controlled by Hamas, and he further notes that they do not distinguish between civilians and combatants or between military objectives and civilian objects. In his words, “it is difficult to draw any conclusion from them.”

While IDF sources have called the numbers “fairly accurate” it’s still difficult to draw any conclusions from them as it relates to genocide. After all, as Justice Barak reminds us (at para 27), the drafters of the Genocide Convention clarified that “[t]he infliction of losses, even heavy losses, on the civilian population in the course of operations of war, does not as a rule constitute genocide.”

Whatever we call it, there’s no disputing the tremendous and tragic scale of death and destruction, including an overwhelming impact on innocent civilians.

In the introduction to its decision, the ICJ describes: “…massive civilian casualties, extensive destruction of civilian infrastructure and the displacement of the overwhelming majority of the population in Gaza.”

The ICJ ultimately concludes that, on a preliminary basis, there is a plausible basis for the case proceeding. And the impact of its interim orders seems non-controversial:

• In a vote of 15-2 (Justice Barak and Justice Sebutinde dissenting), the Court ordered Israel to adhere to its pre-existing obligation to prevent genocide (including a specific reference to its military), preserve any evidence related to these allegations, and report back in one month on compliance measures.

• In a vote of 16-1 (only Justice Sebutinde dissenting), the Court ordered Israel to prevent and punish genocidal incitement against Palestinians and to ensure the immediate and effective provision of humanitarian assistance.

I’ve done a deep dive on other occasions on questions of genocide, including with respect to the atrocities of ISIS, China’s treatment of the Uyghurs, and the slaughter and displacement of the Rohingya.

In this case, my view is that what we see in Gaza does not amount to genocide, particularly given the insufficient evidence on the question of intent.

As we’ve received a deluge of emails on the ICJ case (over 10,000 at last count), I’ve waited to comment until the ICJ interim decision was released, recognizing that 17 smart judges were dedicated to reviewing the evidentiary record in greater detail. Having reviewed today’s ICJ interim decision, it’s apparent that the evidentiary record remains weak on the question of intent, as even supporting justices issued separate declarations to express doubts about genocidal intent (Justice Nolte) and reiterate that this is a provisional decision that does not decide whether such intent exists or existed (Justice Bhandari).

It isn’t hard to find dehumanizing comments, including some from senior officials. And too many people, including Israel’s President, have been quick to ignore that Palestinians are not Hamas. No, it isn’t an entire nation out there that is responsible.

At the same time, while the security context doesn’t absolve Israel for its indiscriminate and disproportionate bombing campaign, it does provide a rationale for violence that is very different from genocidal intent. In other words, one needs to consider Israel’s response in light of October 7 and Hamas’ threat to “repeat October 7 again and again.”

Scrolling Twitter on the morning of October 7 felt a lot like sitting in my grade 11 science class when we heard about the Twin Towers. Here’s how Justice Barak describes that day, at para 18:

On 7 October 2023, on the day of the Sabbath and the Jewish holiday of “Simchat Torah”, over 3,000 Hamas terrorists, aided by members of the Palestinian Islamic Jihad, invaded Israeli territory by land, air and sea. The assault began in the early morning hours, with a barrage of rockets over the entire country and the infiltration of Hamas into Israeli territory. Alerts sounded all over Israel, civilians and soldiers took shelter, and many were later massacred inside those shelters. In other places, houses were burned down with civilians still in their safe rooms, burning alive or suffocating to death. At the Reim Nova Music Festival, young Israelis were murdered in their sleep or while running for their lives across open fields. Women’s bodies were mutilated, raped, cut up and shot in the worst possible places. Overall, more than 1,200 innocent civilians, including infants and the elderly, were murdered on that day. Two hundred and forty Israelis were kidnapped and taken to the Gaza Strip, and over 12,000 rockets have been fired at Israel since 7 October. These facts have been largely reported and are indisputable.

There’s no dispute that Israel has a right to defend itself. That Hamas has embedded itself within civilian infrastructure means any war waged will necessarily make it difficult to minimize deaths of civilians.

And yet, the difficulty of minimizing civilian deaths is not a licence for excessive harm. Even President Biden has called Israel’s bombing campaign “indiscriminate.”

And as Justice Barak reminds us, at para 10, Israel’s Supreme Court has ruled that Israel must act consistently with international humanitarian law and that Israel must refrain from targeting terrorists when excessive harm to civilians is anticipated. At para 26, Justice Barak reiterates that “IHL provides that harm to innocent civilians and civilian infrastructure should not be excessive in comparison to the military advantage from a strike.”

If Israel’s indiscriminate bombing and destruction doesn’t amount to excessive harm to civilians, then what does?

Targeted campaigns against those involved in the October 7 attacks remain justified. Some civilians may well be caught up in those targeted attacks, and they could still be justified.

But we’ve seen no justification for this scale of indiscriminate destruction and death. Given the dehumanizing rhetoric and the histories of the far-right leaders in charge, it is unsurprising that this is where we find ourselves.

In aiming for the elimination of Hamas, Israel has caused a humanitarian disaster for Palestinians.

At para 47, the ICJ quotes a January 5, 2024 statement from the UN Under Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator:

Gaza has become a place of death and despair.

. . . Families are sleeping in the open as temperatures plummet. Areas where civilians were told to relocate for their safety have come under bombardment. Medical facilities are under relentless attack. The few hospitals that are partially functional are overwhelmed with trauma cases, critically short of all supplies, and inundated by desperate people seeking safety.

A public health disaster is unfolding. Infectious diseases are spreading in overcrowded shelters as sewers spill over. Some 180 Palestinian women are giving birth daily amidst this chaos. People are facing the highest levels of food insecurity ever recorded. Famine is around the corner.

For children in particular, the past 12 weeks have been traumatic: No food. No water. No school. Nothing but the terrifying sounds of war, day in and day out.

Gaza has simply become uninhabitable. Its people are witnessing daily threats to their very existence — while the world watches on.

At para 48, the ICJ references a December 21, 2023 World Health Organization report:

An unprecedented 93% of the population in Gaza is facing crisis levels of hunger, with insufficient food and high levels of malnutrition. At least 1 in 4 households are facing ‘catastrophic conditions’: experiencing an extreme lack of food and starvation and having resorted to selling off their possessions and other extreme measures to afford a simple meal. Starvation, destitution and death are evident.

Whatever we call it, it needs to stop now.

Violence radicalizes, as we should know by now. Further violence will only lead us further away from any possible path towards peace.

And yes, it is hard to see that path right now.

Hamas may never be defeated militarily, it is hostile and hateful towards the Jewish people, and it has no place in any future for Palestine. And yet it has greater support in the wake of October 7 and Israel’s response than it had before.

Netanyahu and his far-right ideologues, having presided over an illegal expansion of settlements, remain opposed to a two-state solution. And there is no serious plan for the ‘day after’ that isn’t a security presence in perpetuity. That is, the plan appears to be an occupation. Because that has worked so well before.

The violence needs to end, the hostages need to be freed, we need a two-state solution, and we need an independent accountability mechanism for any breaches of international humanitarian law by actors on both sides. Not an ICJ hearing limited to the very high threshold of genocide, to which Hamas is not a party despite its crimes.

I’m tired of signing letters. I’ve written to Minister Joly, signed a letter with 32 other Canadian MPs for a ceasefire, and signed a more recent letter with dozens of Canadian, US, and German counterparts for a ceasefire.

While Canada has a limited role to play here, all things considered, we do have a strong relationship with the one actor that can make a difference: the United States.

To put it simply, the Biden administration needs to do more to end this war. Its private diplomacy has worked to limit damage at the margins, but it has also enabled the death and destruction to continue for far too long.

And too many people have died.

It may not be genocide, but it is a humanitarian disaster. And it needs to end.