The International Court of Justice (ICJ) has granted South Africa’s request for provisional measures in the case of genocide against Israel in the Gaza Strip.
This means Israeli military action will have to stop so that humanitarian aid can reach Gaza’s citizens, but the court stopped short of calling for an immediate ceasefire.
The public sitting on Friday, 26 January 2024, was presided over by Judge Joan E. Donoghue, the President of the Court.
Donoghue also said that South Africa had provided sufficient evidence for a prima facie case of genocide against Israel. This scathing indictment from the world court comes a day before International Holocaust Remembrance Day.
Judge Donoghue also touched on South Africa’s submissions about the ‘dehumanising language’ used by Israeli officials.
The court found that while Israel’s promises to criminal prosecute soldiers and politicians spewing threats of death and destruction to Palestinians, it was not convinced this would remove irreparable prejudice.
The court also expressed concerns for the hostages under Hamas control and called for their immediate release.
An international and constitutional law professor from Tel Aviv University’s Buchmann Faculty of Law, Prof Aeyal Gross, said the court didn’t order Israel to stop the war (as expected).
“The orders are ones Israel can say it abides by anyway – protecting civilians, not targeting them, allowing humanitarian aid. But actually, the claim is that it is NOT abiding by them. And the narrative of the decision is that they are violated probably – the description of the catastrophic humanitarian situation will stick”.
“So while many things can be criticised about the decision (which I am yet to read!) – like not analysing in terms of armed conflict and continued fighting by Hamas even after October 7, I think focusing on the vulnerable victims who need protection is a worthy choice,” Gross added.
South African human rights lawyer Richard Spoor posted on Twitter: “This is not an order that Israel can refuse to comply with. Beautifully finessed, a diplomatic masterpiece. The level of consensus among the judges of the court is extraordinary. A very impressive victory for SA and the international rule of law”.
South Africa’s governing party, the African National Congress, is currently meeting for a National Executive Meeting. But delegates, including President Cyril Ramaphosa, watched proceedings closely.
Ramaphosa is expected to address the nation about the ICJ ruling on Friday afternoon.
Many wonder if this ruling will help change reality on the ground. “The horrible humanitarian situation described must end. And the ICJ seems to aim at that. Israel says it does what it can, but much of the world won’t agree. The reality on the ground will raise doubts for anyone, concluded Gross.
See the full court order here:
Case Background:
Alongside the application, South Africa sought provisional measures to safeguard the rights of the Palestinian people and ensure Israel’s compliance with the Genocide Convention. Public hearings on South Africa’s request were conducted on 11 and 12 January 2024.
South Africa wants the ICJ to issue a court order for provisional measures under Article 41 of the Statute of the Court that will halt the military action and allow aid into Gaza.
Senior Counsel Dr Adila Hassim highlighted that Israel had subjected Gaza to the “heaviest military conventional bombing campaigns in the history of modern warfare”.
“Palestinians in Gaza are being killed by Israeli weaponry and bombs from air, land and sea.”
“They are also at immediate risk of death by starvation, dehydration and disease as a result of the ongoing siege by Israel, the destruction of Palestinian towns, the insufficient aid being allowed through to the Palestinian population, and the impossibility of distributing this limited aid while bombs fall. This conduct renders essentials to life unobtainable,” Hassim told the court.
Genocidal intent
Arguably, the most challenging aspect to prove, South African Senior Council Advocate Tembeka Ngcukaitobi told the court that Israel’s military action is systematic.
Apart from South Africa, 15 United Nations Special Rapporteurs and 21 members of the United Nations Working Groups have warned that what is happening in Gaza reflects “a genocide in the making” and an overt intent to “destroy the Palestinian people under occupation”.
He argued there was an an extraordinary feature in this case: that Israel’s political leaders, military commanders and persons holding official positions have systematically and in explicit terms declared their genocidal intent.
Israel’s rebuttal
Israel’s legal team argued that South Africa has openly associated itself with Hamas, a group that is recognised as terrorists by at least 46 countries.
Malcolm Shaw, KC, Emeritus Sir Robert Jennings Professor of International Law, University of Leicester, and a member of the Bar of England and Wales, presented arguments on jurisdiction on behalf of Israel.
Shaw stressed the acts of genocide committed came from Hammas on 7 October. In response to South Africa’s submission that Israel’s military operations are beyond self-defense, Shaw contended that Israel has a right to defend itself.
“South Africa only tells half the story… this is about 7 October, when Hamas militants and armed rebels stormed into the sovereign territory of Israel and committed acts of atrocities. These events constitute the context for South Africa’s case”.
Shaw also tackled allegations of ‘genocidal’ rhetoric from Israeli politicians, saying South Africa produced a random quote from officials who do not conform to the Israel cabinet on war and security.
The comments South Africa used to paint Israeli officials as egging on mass murder were taken from the Israeli Heritage minister, who is not part of the council’s war committee or state security department. The comments are also not part of the policy on war and were taken down.
Meanwhile, A group of nearly 50 South African lawyers is gearing up to file a lawsuit against the governments of the United States and the United Kingdom, asserting complicity in alleged Israeli war crimes against Palestinians.
The legal team, comprised of lawyers from South Africa and other nations, contends that the United States, the United Kingdom, and other implicated countries should be held accountable for their alleged involvement in crimes against Palestinians.
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