In a historic ruling, the International Court of Justice (ICJ) on Friday ordered Israel to take measures to prevent acts of genocide in Gaza, but stopped short of calling for an immediate ceasefire as requested by South Africa.
Judge Joan Donoghue, the President of the Court, said that Israel must “take all measures within its power” to prevent acts that fall within the scope of the Genocide Convention and must ensure “with immediate effect” that its forces do not commit any such acts either.
The Court did not deliver a final ruling on the core aspect of South Africa’s case — whether genocide has occurred in Gaza— but an overwhelming majority of its judges ruled in favour of emergency measures, including the entry of basic services and humanitarian assistance into the Palestinian enclave.
A final verdict can only be pronounced after hearings on jurisdictional challenges and the merits of the claim are concluded, which will likely take several years. However, Friday’s ruling strongly indicates that the judges believe that there is a “plausible” genocidal risk to Palestinians, thereby clinching an undeniable victory for South Africa.
It also puts other states showing solidarity with Israel on notice. Speaking to the media following the verdict, South African Minister of International Relations and Cooperation Naledi Pandor said that should the Court find that there has been a commission of genocide, the states that have aided and abetted it would be impleaded in the proceedings.
As established in the Court’s LaGrand judgment in 2001, such provisional rulings are binding, and non-compliance certainly entails the breach of an international legal obligation. However, whether Israel will choose to abide by the ruling is debatable since the ICJ does not have an enforcement mechanism of its own. Although the UN Charter authorises the UN Security Council (UNSC) to enforce the Court’s decisions, their compliance is often at the mercy of the power politics of its permanent members.
For instance, in March 2022, the ICJ ordered Russia to halt its offensive in Ukraine. Although the order was legally binding, Moscow decided to ignore it, resulting in the continuation of hostilities. Similarly, Friday’s ruling is likely to be vetoed by Israel’s strongest ally, the U.S.
Israeli Prime Minister Benjamin Netanyahu slammed the ICJ ruling as “outrageous” while underscoring that Israel is fighting a “just war like no other.” He reiterated the claim that Israel is defending itself and its citizens against Hamas and that it would continue to do so while adhering to international law.
But as experts have told The Hindu previously, this interim ruling as well as future proceedings in the case could significantly sway international public opinion and mount pressure upon Israel to ensure compliance. This is all the more likely since Israel has been ordered to report to the Court within a month on steps taken to give effect to the verdict.
Prima facie jurisidiction
At the very outset, the Court acknowledged that it is acutely aware of the extent of human tragedy unfolding in the Gaza Strip and is “deeply concerned about the continuing loss of life and human suffering.” It noted that following Hamas’ attack on October 7, 2023, Israel launched a large-scale military operation causing massive civilian casualties, extensive destruction of civilian infrastructure and the displacement of an overwhelming majority of Gaza’s population.
The Court’s jurisdiction was opposed by Israel on the ground that there exists “no dispute” between the parties since South Africa failed to provide “a reasonable opportunity to respond” before instituting the claim, as is required by the Court’s own rules. It also said that in the absence of any specific genocidal intent (dolus specialis), Israel’s military operations constitute an “act of self-defence” against Hamas.
Also Read: The issue of genocide and the world court
However, after perusing various statements issued by the two nations in several multilateral and bilateral forums, the Court concluded that “clearly opposite views” existed regarding Israel’s alleged violation of the Convention, which merits the prima facie existence of a “dispute.” It also pointed out that South Africa had made a complaint to the Israeli embassy in Pretoria, to which Israel had clearly responded.
Considering the low evidentiary threshold at this stage of the proceedings, it ruled that “at least some of the acts and omissions” alleged by South Africa against Israel are capable of falling within the provisions of the Convention thereby fortifying its jurisdiction to entertain the claim. This is entirely consistent with prior precedents, and in particular with the Ukraine v. Russia provisional measures order.
South Africa’s locus standi
The Genocide Convention has been ratified by an overwhelming number of states, including South Africa (1998) and Israel (1950). Article IX allows any state party to institute a case against another in the ICJ, even if it is not directly involved in the conflict. This is because the prohibition of genocide is considered a peremptory norm of international law (jus cogens) from which no derogation is permissible. This is the basis on which South Africa, a party that is technically unrelated to the conflict, instituted the ongoing proceedings. There exists a precedent for this — in December 2022, the Court ruled that Gambia could bring a genocide claim against Myanmar for its treatment of the ethnic Rohingya population.
Upholding South Africa’s standing to sue, the Court noted that “all States parties to the Convention have a common interest to ensure the prevention, suppression, and punishment of genocide” and thus any of them can seek compliance of such erga omnes obligations (obligations towards the international community as a whole) in any given case.
Threshold for an interim ruling
The Court ascertained that the standard to order provisional measures had been met, that there is a “plausible” link between the rights sought to be protected by South Africa (the rights of Palestinians to be free from genocidal attacks) and the measures it requests as well as a risk of irreparable harm and genuine urgency. This was an unsurprising declaration given the relatively low threshold — the Court did not have to determine that genocidal acts in Gaza had in fact occurred.
Relying on various statements from UN officials, special rapporteurs, and other international bodies regarding the catastrophic situation in Gaza, it observed that “the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.”
“The Court considers that the civilian population in the Gaza Strip remains extremely vulnerable. It recalls that the military operation conducted by Israel after 7 October 2023 has resulted, inter alia, in tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities, and other vital infrastructure, as well as displacement on a massive scale (see paragraph 46 above). The Court notes that the operation is ongoing and that the Prime Minister of Israel announced on 18 January 2024 that the war “will take many more long months”. At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating.”ICJ’s order in South Africa v. Israel
Notably, the Court took note of genocidal rhetoric from several senior Israeli officials to arrive at its conclusion. In particular, it referred to a statement by Defence Minister of Israel Yoav Gallant calling for a “complete siege” of Gaza and indicating to the troops that they were “fighting against human animals.” Reference was also made to President of Israel Isaac Herzog’s remark that there were no innocent civilians in Gaza since “the entire nation” was responsible.
The cognisance of such statements is significant as they could establish the “genocidal intent” required to arrive at a definite finding on the commission of the crime.
Highlighting the need for emergency measures, the Court observed that “the catastrophic humanitarian situation in the Gaza Strip is at a serious risk of deteriorating further” before it can render a final judgment.
Provisional measures
No immediate ceasefire
Declining South Africa’s request, the Court refused to issue an immediate ceasefire order as it had done previously in the Ukraine v. Russia case. Notably, Ukraine’s situation is factually and legally distinguishable from Gaza. In the case instituted by Ukraine against Russia, both parties were also the two involved in the conflict, while Hamas, as a non-state actor, is not a party to the ongoing proceedings.
Even though it is debatable whether Israel has the right to self-defence under international law in the context of Gaza, a ceasefire order would arguably have prevented it from participating in defensive military operations. As experts have pointed out, such a unilateral injunction was unlikely in this case.
Prevent all genocidal acts
The Court ruled that Israel must, in accordance with its obligation under the Convention, take all measures within its power to prevent the commission of all genocidal acts against Palestinians in Gaza,such as causing serious bodily or mental harm, killing civilians, and imposing measures intended to prevent births, among others.
[The measure was approved by a vote of 15-2. Dissenting judges: Judge Julia Sebutinde of Uganda and the Israeli representative, Judge Aharon Barak.]
Immediately restrain the military from performing genocidal acts
During the proceedings, South Africa accused Israel of furthering genocide through its state organs including the military. It pointed out that high-level Israeli politicians made genocidal statements, which were then echoed by soldiers on the ground in Gaza while making TikTok reels.
Addressing such concerns, the Court directed Israel to ensure “with immediate effect” that its military does not commit any genocidal acts either.
[The measure was approved by a vote of 15-2. Dissenting judges: Judge Sebutinde of Uganda and the Israeli representative, Judge Barak.]
Prevent incitement to commit genocide
Israel was ordered to take all measures within its power to prevent and punish “the direct and public incitement to commit genocide” against Palestinians in Gaza. This could have a direct bearing on the alleged incendiary rhetoric of high ranking Israeli officials.
[The measure was approved by a vote of 16-1. Dissenting judge: Judge Sebutinde of Uganda.]
Entry of humanitarian assistance
The Court ordered Israel to permit the entry of urgently needed basic services and humanitarian assistance into the Palestinian enclave. South Africa had alleged that Israel’s blockade of food, water, medicine, and other essential supplies had pushed Palestinians to the “brink of famine.”
[The measure was approved by a vote of 16-1. Dissenting judge: Judge Sebutinde of Uganda.]
Preservation of evidence
Israel was ordered to preserve evidence relating to the claim. This will ensure that vital evidence is not lost or destroyed before the merits phase of the case, when the Court has to conclusively determine if Israel has committed genocide or not. Such evidence will also be relevant for proceedings before the International Criminal Court (ICC), which is already investigating the possible commission of war crimes and crimes against humanity by both Hamas and Israel.
However, South Africa’s request to permit fact-finding missions, international mandates, and other bodies access to Gaza to assist in the retention of evidence was not entertained by the Court.
[The measure was approved by a vote of 15-2. Dissenting judges: Judge Sebutinde of Uganda and the Israeli representative, Judge Barak.]
Compliance
Israel was directed to submit a report to the Court on all steps undertaken to abide by the measures imposed by the Court within one month of the ruling. South Africa will have a chance to respond to this report. This will also provide an opportunity to present more evidence such as the recently declassified cabinet minutes explaining Israel’s intent behind the hostilities.
[The measure was approved by a vote of 15-2. Dissenting judges: Judge Sebutinde of Uganda and the Israeli representative, Judge Barak.]
Release of hostages held by Hamas
Although no interim order was issued, the Court said that it was gravely concerned about the fate of the hostages abducted during Hamas’ attack on October 7, 2023, and accordingly called for their immediate and unconditional release.
What happens next?
The UN Security Council is set to meet next week to deliberate upon the decision. The meeting, scheduled for Wednesday, has been called by Algeria, whose Ministry of Foreign Affairs said it would give a “binding effect to the pronouncement of the International Court of Justice on the provisional measures imposed on the Israeli occupation.”
The UNSC has long been divided on the conflict, with the U.S. having used its veto power multiple times to shield Israel from demands for a ceasefire. However, experts say that Washington’s veto of an ICJ-approved decision could undermine US President Joe Biden’s calls for others — especially its adversaries Russia and Myanmar — to uphold the Court’s rulings.
Following the verdict, nearly a dozen Western countries including the U.S. have suspended funding for the United Nations’ refugee agency for Palestinians (UNRWA) owing to allegations that its staff were involved in the October 7 Hamas attacks on Israel. Established in 1948, UNRWA provides education, health, and emergency aid services to about two-thirds of Gaza’s 2.3 million population and has played a pivotal role during the war.
Although many have been left disappointed by the Court’s refusal to order a ceasefire, experts say that this was an expected outcome. Thomas Macmanus, a law professor at Queen Mary University in London, told Al Jazeera that he was not surprised that the Court did not ask for a ceasefire because, in a way, it would “render Israel defenceless against an attack, and that’s not really within the purview of the Court in this case.”
According to Tuqa Nusairat, the Director for Strategy, Operations, and Finance at the Atlantic Council’s Middle East Programs in Washington, the ruling should make U.S. rethink any further diplomatic, economic, and military support to Israel.
“The Court’s initial decision puts to rest the Biden administration’s claim that the case is “meritless,” and should force the United States to come to terms with the fact that its support for Israel is not only rejected by much of the international community, but it is now subject to possibly defending itself against accusations of supporting a possible genocide in Gaza. The fifteen-to-two vote by the Court on almost all the provisions speaks to how united much of the world is in its view of how Israel has conducted its military operations in Gaza,” she asserted.
- At the very outset, the Court acknowledged that it is acutely aware of the extent of the human tragedy that is unfolding in the Gaza Strip and is “deeply concerned about the continuing loss of life and human suffering.
- The Genocide Convention has been ratified by an overwhelming number of states, including South Africa (1998) and Israel (1950). Article IX allows any state party to institute a case against another in the ICJ, even if it is not directly involved in the conflict.
- Highlighting the need for the issuance of emergency measures, the Court observed that “the catastrophic humanitarian situation in the Gaza Strip is at a serious risk of deteriorating further” before it can render a final judgment.
Published - January 28, 2024 07:38 pm IST
