The International Court of Justice has delivered its decision on South Africa’s accusation of Israel for committing genocide in Gaza. The Court has ordered Israel to take all steps to prevent genocide and improve the humanitarian situation in the Palestinian Gaza Strip through provisional measures. Israel has a month to inform the Court of its compliance with the order. The Court emphasized the serious risk of the deteriorating situation in Gaza, necessitating immediate action.
Decades of Conflict: Israeli-Palestinian Violence Rages On
The South Africa vs. Israel case at the International Court of Justice (ICJ) [1] is closely tied to the enduring Israeli-Palestinian conflict. This conflict has a long history, marked by the Israeli occupation of the West Bank and Gaza Strip, disputes over Jerusalem's status, settlements, borders, and issues related to Palestinian freedom of movement and the right of return. The current phase of the war began with the attack on 7 October 2023 carried out by the Muslim Hamas movement on Israeli territory and the subsequent Israeli retaliation.
The relentless bombing campaign in Gaza has inflicted devastating consequences, with the current death toll surpassing alarming numbers. Civilians, including women and children, bear the brunt of the violence, as residential buildings, schools, and hospitals become targets in the conflict. The escalating humanitarian crisis exacerbates the already dire living conditions in the densely populated enclave. According to information from the Ministry of Health from January 2024, the number of victims has passed 22,000 dead.
South Africa, drawing on its historical commitments to human rights and its experience in the struggle against apartheid, has accused Israel of actions akin to genocide [2] in the Gaza Strip. This accusation hinges on the assertion that Israel's policies in the region pose a grave risk of genocide, a serious charge with profound implications.
Legal Verdict Shines Spotlight on Israel's Actions and Responsibilities in Gaza
After a thorough examination of the evidence and legal arguments presented by both parties, the ICJ rendered its judgement on 26 January 2024. It ruled that Israel must take immediate action to prevent the risk of genocide in Gaza. “The catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further,” said Joan Donoghue, President of the International Court of Justice.
South Africa argues that Israel's policies and practices in Gaza violate international law and protocols. The country accused Israel of intentionally targeting civilians, causing extensive loss of life and property. Moreover, South Africa contended that Israel's blockade of Gaza had severely restricted access to essential resources, hampering the overall well-being of the Palestinian population.
The ICJ's ruling was based on its interpretation of the Convention on the Prevention and Punishment of the Crime of Genocide and the broader principles of international humanitarian law. The Court's assessment considered the gravity of the situation in Gaza, the indiscriminate use of force, and allegations of extrajudicial killings. It underscored the need for Israel to exercise utmost caution to prevent the loss of innocent lives.
The ICJ issued six provisional measures regarding the Israel-Palestine conflict. Firstly, Israel is mandated to prevent acts constituting genocide against Palestinians in Gaza, emphasizing the dire humanitarian situation. Secondly, the Court ordered Israel to ensure its military refrains from acts of genocide. Thirdly, the ICJ directed Israel to prevent and penalize public incitement to commit genocide, citing statements from Israeli officials. The fourth measure urges Israel to facilitate the provision of basic services and humanitarian aid to address the challenging living conditions of Palestinians in Gaza.
Additionally, the ICJ called for the preservation of evidence and mandated Israel to report back on measures taken, setting a one-month deadline (to 26 February 2024). These orders, encompassing immediate and extensive actions, pose a challenge not only to Israel but also to other states, particularly those providing military support, which raises questions about potential liability for complicity in genocide.
ICJ Decision Crystallizes World Opinion Against Israel's Gaza Campaign
“No one will stop us, not The Hague, not the axis of evil and not anyone else,” said Israel’s Prime Minister Benjamin Netanyahu in expressing that the Court's decision would not halt Israel's ongoing war efforts. Despite this, Israel demonstrated condordance to the legal proceedings by assembling a robust legal team and providing classified Cabinet documents to the Court for the defence against the genocide allegation.
On the other hand, in addition to South Africa, the ruling has been welcomed by international human rights organisations, such as Human Rights Watch. Associate International Justice Director Balkees Jarrah stated that “the World Court’s landmark decision puts Israel and its allies on notice that immediate action is needed to prevent genocide and further atrocities against Palestinians in Gaza.”
The ICJ's order has crystallized world opinion on the Israel-Palestine conflict, leaving the U.S. and a few Western states increasingly isolated. “Individual member states (of the UN, editor's note), especially in the west and Australia is no exception, are on the margins, muttering inaudible words of condemnation for Israel’s excesses at best – or staying silent in fear of restraining Israel’s self-proclaimed right to self-defence, whatever it means,” says UN expert Francesca Albanese. The U.S. is confronted with accusations of double standards, given its past efforts to rally global opposition against Russian operations in Ukraine.
Geopolitical Challenges in Enforcing ICJ's Gaza Ruling
While there is no direct appeal, either party can use facts on the ground to justify returning to the Court. Parties can use new facts or changes in the situation to justify a retrial. At the same time, the decision creates international pressure and draws attention to the seriousness of the situation. Most significant is the one-month time frame for Israel to report to the ICJ on its implementation of the order. The order's transition from the judicial sphere to geopolitics introduces uncertainties regarding enforcement actions at the international level.
Any efforts in the direction of pressuring Israel to keep its commitments would likely involve the UN Security Council, where a potential use of veto power by the U.S. to protect Israel's interests, complicates the situation. However, other Security Council members may push for compliance with the ICJ's provisional measures through a straightforward resolution urging compliance with the provisional measures outlined by the ICJ. Such resolution would aim to encourage all involved parties to adhere to the ICJ's directives regarding the Gaza conflict.
Notes
[1] The International Court of Justice (ICJ) is the principal judicial organ of the United Nations, established to settle legal disputes between states and provide advisory opinions on legal questions referred by the General Assembly, Security Council, or other specialized agencies and bodies of the UN.
[2] Genocide, as defined by the United Nations, refers to acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. These acts include killing members of the group, causing serious bodily or mental harm, deliberately inflicting conditions of life to bring about its physical destruction, imposing measures to prevent births within the group, or forcibly transferring children of the group to another group. This definition is outlined in the UN's "Convention on the Prevention and Punishment of the Crime of Genocide," adopted in 1948.
Sources
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Photograph
Protest sign at the Free Palestine National March. Protest sign at the Free Palestine National March on Washington November 4, 2023 Cease Civilian Death sign, author: Kiraface, 4 November 2023, source: Wikimedia Commons, CC BY-SA 4.0 DEED.
