Israel must take ‘all measures’ to prevent genocide, but no order to stop the war
On Friday morning 26th January, throughout the Middle East and across the occupied Palestinian territories, crowds gathered in public squares to watch the delivery of the interim landmark judgement at the International Court of Justice (ICJ) in respect of South Africa’s genocide claim against Israel. The claim lodged on 4th January, alleged that Israel is guilty of genocide in Gaza.
Today’s judgement is meant to be an interim determination on the plausibility of South Africa’s claim, ‘as the court cannot make definitive decisions on the merits of the evidence at this stage’. It could at this point however, yield its power to order the cessation of hostilities in the Gaza strip. In its final determination, described by some as historic, the court accepted that the case brought before them was in fact ‘plausible’ and crucially that South Africa does have the right and meets the conditions to present such a claim for the court’s adjudication.
With 16 of the court's judges present, the head of UN’s most senior judicial authority, Judge Joan Donoghue, delivered a clear rebuttal to Israel’s attempt to have the case thrown out and proceeded to deliver an historic 6 point order of interim measures which Israel and ‘all other parties involved in the conflict in Gaza’ are bound to respect and required to abide by under international law.
In her opening, judge Donoghue announced that the assembled judges had unanimously acknowledged that the Palestinians and the citizens of Gaza, represent a protected group as defined by the Genocide convention and that the scale of the Israeli military operation has resulted in significant numbers of deaths and injuries. She said that the court recognised the sense of urgency in arriving at an interim decision on certain measures as defined in the case brought and requested by South Africa, although she said, they were not bound to adhere to the measures presented South Africa's legal team.
Central to the judgement was that ‘Israel must in accordance with the interim ruling prevent the commission of all acts harming members of the ‘protected’ group’ [the Palestinians and citizens of Gaza] and that it ‘must take Immediate and effective measures’ to relieve the unfolding humanitarian crisis, by allowing/providing humanitarian aid.
The ruling stops short of ordering a ceasefire
What the order does not say is that Israel must stop its military campaign in Gaza. Although the court drew attention to the claims of genocide and the acts listed by the South African (SA) legal team as constituting examples of genocide, it simply directed that Israel must ensure that ‘Its military forces must not commit any of the aforementioned acts’. It is reasonable to surmise that given Israel’s steadfast position that SA’s claims of genocide are without merit and judging from their immediate response post the judgements, the judgements provide only a limited pressure for them to step back from their current offensive. The ICJ order as one Israeli pundit described, is equivalent to a ‘yellow card’, not a red one. There was no requirement for Israel to stop the war. Some Israeli media outlets were describing the judgements as a victory for Israel.
The orders are 'binding on all parties to the conflict'
Political pundits will no doubt ponder on the significance of the words uttered in the judgement, which direct that the ‘orders are binding on all parties to the conflict on the Gaza Strip’ and whether this will place a pressure on international actors providing weapons and resources to Israel, such as the US and the UK.
Judge Donoghue made the point that the interim order in no way prejudges on the merits of the actual case, which she explained will be adjudicated over the coming months and years.
Orders had the support of all the judges except two
The 6 interim orders were passed almost entirely unanimously with two out of 17 exceptions in each and every case. Unsurprisingly, the Israeli appointed judge - Former Israeli Supreme Court President, Aharon Barak continued to vote against every judgement and perhaps a little less surprising, so did the Ugandan appointed Judge, Julia Sebutinde.
Israel 'must take all measures within it's power'
The ICJ orders it can be argued, are sufficiently general in their nature as to be subject to broad interpretation. Indeed, the order required that Israel must ‘take all measures within its power’ to prevent acts which could fall foul of the Genocide convention and must ‘ensure the provision of urgently needed basic services and humanitarian assistance’ in Gaza. It also required that Israel must ‘prevent and punish the direct and public incitement to commit genocide, that it must preserve evidence related to allegations of genocide and submit a report in a month’s time on its compliance with these measures. It must ‘ensure the provision of urgently needed basic services and humanitarian assistance’ in Gaza.
However, it is not difficult to imagine that Israel will suggest that it is already implementing these conditions as part of its rules of engagement.
Israel's Security Minister slams the judgements as anti-Semitic and urges colleagues to disregard them
Israel’s National Security Minister, Itamar Ben Gvir was quick to slam the proceedings at the ICJ, which he described as anti-Semitic and urged that Israel should completely disregard the ICJ’s decisions, which he said threatens Israel’s existence.
Israel's Prime Minister celebrates the judgements as a victory for Israel
Israel’s Prime Minister, Benjamin Netanyahu ordered his cabinet members to refrain from issuing any public statements in respect of the ruling, while publicly celebrating what he referred to as the ICJ having ‘justly rejected’ South Africa’s case’. He said:
‘The vile attempt to deny Israel this fundamental right is blatant discrimination against the Jewish state, and it was justly rejected. The charge of genocide levelled against Israel is not only false, its outrageous and decent people everywhere should reject it’
He went on to say that:
‘Israel’s commitment to international law is unwavering. Equally unwavering is our sacred commitment to continue to defend our country and defend our people… we will continue to facilitate humanitarian assistance and to do our utmost to keep civilians out of harms way, even as Hamas uses civilians as human shields’
The Palestinian Ambassador to the UK, Husam Zomlot responded to the ICJ judgement by saying:
‘Today’s ruling at the ICJ is a historic moment. It is a pivotal moment in the long journey towards justice and accountability, not only for the Palestinian people, but for all humanity, and for everyone striving for justice, rights and equal application of the rule of law. The legal case brought by South Africa has forensically detailed Israel’s actions and its intent to commit genocide against the Palestinian people in Gaza. The court has delivered its verdict to stop Israel from killing Palestinians, end incitement to genocide and allow in the desperately needed humanitarian aid to a displaced population starving and under siege and bombardment. The world must implement the court ruling and enforce an immediate, comprehensive and permanent ceasefire’
It should be interesting to see if the US and the UK agree with His Excellency Husam Zomlot, on the significance of the interim orders. There are many who suspect they will not and that we shall not see any major changes to either the Israeli campaign or the support it receives from its Western allies.
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