ICJ Says Israel Must Comply with Genocide Convention, but Stops Short of Halting Military Op in Gaza

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In provisional measures, the International Court of Justice ruled with a majority of 15 to 2. India’s Dalveer Bhandari voted in favour of the order.

New Delhi: The International Court of Justice, the UN’s highest judicial organ, has directed Israel to promptly “take all measures within its powers” to ensure there is no violation of the Genocide Convention and to increase the flow of aid into Gaza, but stopped short of ordering Tel Aviv to immediately cease its military operations.

With a majority of 15 to 2, the ICJ ruled that Israel must “take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention”. The court specifically asked Israel to direct its military to ensure that its military doesn’t violate the 1948 treaty.

India’s Dalveer Bhandari voted in favour of all the provisional measures. The dissenters were Israel’s ad-hoc Judge Aharon Barak and Uganda’s Julia Sebutinde. Both South Africa and Israel had appointed a judge each to the ICJ’s usual panel of 15 judges.

The Court issued a total of six provisional measures, but none of them explicitly called on Israel to cease military operations in Gaza.

After the order, Israeli Prime Minister Benjamin Netanyahu declared that while Israel had an “unwavering” commitment to international law, it was “equally unwavering” in defending itself.  “The vile attempt to deny Israel this fundamental right is blatant discrimination against the Jewish state, and it was justly rejected,” he said.

In the English language video clip, he also that that Israel “will continue to facilitate humanitarian assistance, and to do our utmost to keep civilians out of harm’s way, even as Hamas uses civilians as human shields”. However, a video statement in Hebrew released by Netanyahu’s office did not mention humanitarian aid.

Earlier this month, Netanyahu had claimed that Israel’s military action will not be stopped by the ICJ. “No one will stop us, not The Hague, not the axis of evil and no one else.” The reference to the “axis of resistance” groups are organisations aligned or backed by Iran in Yemen, Iraq, Syria and Lebanon.

Speaking to reporters outside the Peace Palace in Hague, South African foreign minister Naledi Pandor said that there was “no way that I am going to say I am disappointed” that the ICJ did not explicitly call for a ceasefire but admitted that she had hoped for it.

Pandor claimed that the implementation of the judgment would require Israel to stop its military operations.  “But the fact of delivering humanitarian aid, the fact of being taking measures that reduce the level of harm against persons who have no role against Israel is combating for me requires a ceasefire,” she said.

Pandor, however, did not believe that Israel will implement the ICJ’s interim measures. “I have never been hopeful about Israel, but Israel has many powerful friends that we hope should advise Israel,” she stated.

In Johannesburg, South African President Cyril Ramaphosa, who watched the judgment live at his party headquarters, welcomed the order as a vindication of his government’s effort to take Israel before the court.

Commending the order, Palestinian foreign minister Riyad Al-Maliki said that the ruling was “in favour of humanity and international law”. “The ICJ order is an important reminder that no state is above the law. It should serve as a wake-up call for Israel and actors who enabled its entrenched impunity,” he said.

A senior official of the Palestinian Islamist group Hamas Sami Abu Zuhri told Reuters that the ICJ order will contribute to “isolating Israel”.

The World Court ruled that it has prima facie jurisdiction in the case and rejected Israel’s demand for removing it from the general list. It also said that South Africa has “standing” to bring Israel before the ICJ for alleged violations under the Genocide Convention.

The ICJ also called on Israel to “prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip”. In its order, it had noted several public statements made by senior Israeli officials, including Israeli President Isaac Herzog and Israeli Defence Minister Yoav Gallant, in the context of “dehumanizing language” used against Palestinians.

After the order, Gallant criticised the ICJ for not throwing out South Africa’s “antisemitic” case. National Security Minister Itamar Ben Gvir, who is a member of a far-right party, said that the decision shows that the “court does not seek justice, but rather the persecution of Jewish people”.

Israel was also asked to take “immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip”.

The Court also asked Israel to preserve evidence related to allegations of actions which fall under the Genocide Convention. The ICJ also ruled that Israel must submit a report on implementation within one month.

While asserting that South Africa had not demonstrated the genocidal intent behind its military operations, Israel’s ad-hoc Judge also voted in favour with the majority on two of the provisional measures that call for punishing inflammatory remarks by Israeli officials and calling for humanitarian access into Gaza.

Underling that all parties to the Gaza conflict were bound by international humanitarian law, the ICJ said that it was “gravely concerned” about the fate of the hostages abducted by Hamas on Oct 7 and called for “their immediate and unconditional release”.

During the hearing of the case between South Africa vs Israel at the International Court of Justice at The Hague. Photo: X (Twitter)/@CIJ_ICJ

Judge Sebutinde, who is the first African woman to be elected to the ICJ, was the only one to dissent on all the provisional measures. In her dissenting opinion, she asserted that the dispute was essentially a “political one” and would require a negotiated settlement.

Specifically, she argued that the ICJ’s first two provisional measures that call on Israel to ensure compliance with the Genocide Convention would mean that Tel Aviv had to “unilaterally cease hostilities, a prospect I consider unrealistic”.

With Sebutinde’s dissent widely noted on social media, Uganda’s top diplomat to the United Nations had to clarify on X, previously known as Twitter, that her position doesn’t represent the stance of the Ugandan government that has consistently supported Palestine.

Three other ICJ judges also issued separate declarations to explain their votes with the majority. In his two-page note appended to the order, Justice Bhandari highlighted the fact that the ICJ had not made a final determination on the matter of genocidal “intent”. But he also called for an in immediate ceasefire and for a release of all hostages.

Germany’s Georg Nolte wrote that South Africa had not shown plausibly that Israel’s military operation was being conducted with genocidal intent, but said that he voted in favour of the measures since certain statements made by Israeli state officials give rise to “a real and imminent risk of irreparable prejudice to the rights of Palestinians under the Genocide Convention”.

China’s Judge Hanqin Xue, who had dissented in another ICJ case on The Gambia bringing Myanmar to task for its  ‘genocidal’ killing of Rohingyas, voted in favour on Friday and also issued a separate declaration in which he said “this is the very type of case where the Court should recognize the legal standing of a State party to the Genocide Convention to institute proceedings … to invoke the responsibility of another State party for the breach of its obligations under the Genocide Convention.”

On December 29, South Africa dragged Israel before the ICJ claiming that the latter had violated the 1948 Genocide Convention during its military operations in Gaza. Both Israel and South Africa are signatories to the Genocide Convention.

Israel had begun an aerial bombardment, followed by ground intervention in the Gaza strip, after Hamas launched an attack which killed around 1200 people, mostly civilians, and took around 240 others hostage.

In the Israeli retaliation, the death toll is currently at more than 25,000 people as per local health authorities, with the UN stating that more than 70% of the dead are women or children.

In its observations, the Court said that it was “acutely aware of the extent of the human tragedy that is unfolding in the region and is deeply concerned about the continuing loss of life and human suffering”. It cited several statements from UN official and UN bodies about the extent of the humanitarian crisis facing civilians, especially women and children, in Gaza.

While the final ruling on whether Israel had violated the Genocide Convention will take years, South Africa had requested the court to issue “provisional measures” aimed at preventing the escalation of the conflict. The first among the nine provisional measures sought by South Africa was for the Court to instruct Israel to “immediately suspend its military operations in and against Gaza”.

The presentations by South Africa and Israel regarding the provisional measures were held on Jan 11 and 12.

South Africa’s lawyers argued, with the help of videos, that Israeli ministers and politicians had publicly made statements that indicated the intent to commit genocide in violation of the Convention.

Denying South Africa’s claims, Israel’s delegation told the ICJ that they had sent thousands of phone calls and messages to Gaza resident prior to bombarding to invading the northern part of the territory. It had also argued that South Africa did not have the right to bring the case before ICJ as it had not sufficient notice to Israel that there was a dispute.

South Africa claimed that it had the right to come before the ICJ despite not being directly impacted as all countries are obligated to prevent violation of the Genocide Convention. This argument was used and upheld when The Gambia approached the ICJ to file a case against Myanmar over the alleged genocide against the Rohingyas.

On the statements by Israeli politicians, Israel asserted that the official directives to the military overrode such inflammatory public remarks. A day before the interim order was to be announced by ICJ, Israel declassified more than 30 official orders which it said rebutted any claims of genocide by showing that it sought to limit harm to civilians.

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