Venu Menon
Wellington, January 28, 2024
The International Court of Justice (ICJ) has ordered Israel to prevent genocidal acts but has fallen short of calling for an immediate ceasefire in the embattled Gaza Strip, the epicentre of a raging conflict in the Middle East.
In Wellington, protesters gathered outside Parliament to proclaim the ICJ ruling, holding aloft placards and raising slogans calling for an immediate end to hostilities in Gaza.
The UN’s top court, based in The Hague, issued its January 26 ruling on “provisional measures” in the case South Africa has brought against Israel for violations of the Genocide Convention.
Rejecting Israel’s request for an outright dismissal of the case, a majority of the 17 judges of the ICJ ordered Israel to take steps aimed at limiting harm to Palestinians, to preserve evidence [substantiating the allegation of genocide], and submit a compliance report to the court within a month.
Prima facie grounds
Though its final verdict in the genocide case against Israel is due, the ICJ held that “at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention.”
The court added: “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.”
That means the case can be tried on merits and a possible adverse ruling against Israel could implicate states providing aid to Israel, such as the United States and the United Kingdom.
Provisional measures
For now, the ICJ has focused on the nine provisional measures, which include conforming to Geneva Convention protocols on protection to civilians, humane treatment of prisoners and safeguarding installations such as hospitals.
It is worth noting the ICJ did not call into question Israel’s right to defend itself [after the 7 October 2023 attack on Israel by Hamas militants].
The court also expressed grave concern over the fate of hostages held by Hamas in Gaza and called for their unconditional release.
Reactions to ruling
Israel has denounced the ICJ ruling with Prime Minister Benjamin Netanyahu calling the charge of genocide brought by South Africa against Israel “outrageous.”
Palestinian Foreign Minister Riyad al-Maliki said the ICJ “ruled in favour of humanity and international law,” while a Hamas spokesman observed the ruling left Israel isolated in the international community.
South Africa’s President Cyril Ramaphosa hailed the ICJ ruling and called for Israel to abide by it.
Genocide Convention
The 1948 Genocide Convention defines Genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
It includes, “killing members of the group, causing serious bodily or mental harm to members of the group and deliberately inflicting conditions of life calculated to bring about the destruction of the group in whole or in part.”
Incitement to genocide
The ICJ judges wanted Israel to do more to “prevent and punish” public incitement to genocide, particularly by Israeli politicians.
Humanitarian catastrophe
The ICJ took cognisance of the ordeal faced by Gaza’s 2.3 million population who suffered displacement, lived in “squalid, overcrowded shelters,” with lack of healthcare, sanitation or humanitarian supplies.
Judge Joan Donoghue, ICJ president, noted the plight of children was “especially heartbreaking.”
Enforcing the ruling
Enforcing the ICJ ruling is a challenge. It can be referred to the UN Security Council for implementation, which will be stymied by the US exercising its power of veto. From there, the ruling will be taken up by the UN General Assembly where it will likely receive the backing of a majority of member countries and lead to a Resolution being adopted, which would be non-binding on Israel.
Israel can choose to ignore both the ICJ ruling and any UN General Assembly resolution that is in the offing.
At the ICJ, lawyers argued Israel stood for international law and international humanitarian law, and blamed Hamas for using civilians as human shields which contributed to the death toll in Gaza.
Divided opinion
Experts were divided on the ICJ ruling. Some said it did not go far enough by not ordering a cessation of hostilities in Gaza. Others said a ceasefire was implicit in the measures the court had ordered Israel to carry out.
But until the ICJ delivers its final verdict, Israel faces the odium of a plausible accusation of genocide.
Venu Menon is an Indian Newslink reporter based in Wellington
