KOCHI: The International Court of Justice (ICJ) on Friday directed Israel to prevent genocide in Gaza but stopped short of asking it to suspend its war against Hamas, which has so far killed some 25,000 Palestinians, maimed 60,000, and displaced 2 million people.
“The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group,” the ICJ said in its interim order.
The United Nation’s top court at The Hague, Netherlands found 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” and urged Israel to act in accordance with its obligations under the 1948 pact.
The ICJ also ordered Israel to prevent and punish any incitement to commit genocide in Gaza and take urgent measures to provide basic services and humanitarian assistance to Palestinians in Gaza. It gave Israel one month to report back on compliance. The interim order also directs that Israel shall preserve the plausible evidence related to allegations of violation of the 1948 Convention.
Import of the interim ruling
While giving the interim ruling on South Africa’s application to initiate proceedings against Israel for violating the Genocide Convention of 1948, the ICJ held that there is a ‘plausible’ risk of genocide in Gaza because of the ongoing conflict. The order, however, does not indicate that the court believes genocide is actively taking place. The court did not explicitly order Tel Aviv to suspend the war, as sought by South Africa, as an emergency measure. The judges also did not accept Israel’s demand to throw out the plea, holding that Palestinians as a group are protected under the 1948 Convention and that there is a case to be heard whether their rights were denied during the war in Gaza. The merits of the main question about whether Israel committed war will be decided later, as ICJ’s lengthy process takes years to conclude.
“This is the case with respect to the right of Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article 3 of the Genocide Convention, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the convention,” presiding judge Joan E Donoghue said. After reading out the order, she also issued a statement calling for the “immediate and unconditional” release of the hostages held by Hamas.
The middle path adopted by the judges leaves the interim decision open to interpretation. Both sides can claim their arguments are valid and have been accepted by the court. In his first reaction, Israeli Prime Minister Benjamin Netanyahu said the court’s decision not to order an immediate ceasefire meant it had rejected South Africa’s primary claim. South Africa, on the other hand, termed the ruling “a decisive victory for international rule of law” and a step closer to justice for Palestinian people.
The case
After South Africa dragged Israel to the ICJ on December 29, 2023, the court held hearings in the case on January 11 and 12. In its application, South Africa accused Israel of violating the Genocide Convention of 1948 during its military operations in Gaza, citing the number of civilian casualties and damage to civilian infrastructure. It alleged that Israel was trying to annihilate the Palestinian national, racial and ethnic group in the Gaza Strip, which would be a clear violation of the 1948 Convention.
South Africa pointed out five ‘genocidal acts’ committed by Israel against Palestinians in Gaza — i) the mass killing of Palestinians; ii) the infliction of serious mental and bodily harm; iii) expulsion and forced displacement; iv) assault on Gaza’s healthcare system, which renders life unsustainable; and (v) the imposition of measures intended to prevent births within the group. “The conduct of Israel — through its state organs, state agents, and other persons and entities acting on its instructions or under its direction, control or influence — in relation to Palestinians in Gaza, is in violation of its obligations under the genocide convention,” it said.
South Africa also raked up the speeches by Israel's military and political leaders including Netanyahu, who alluded to the biblical destruction of enemies of ancient Israel. The military commanders’ reference to Palestinians as “human animals” that need to be eliminated was also cited as evidence of incitement to genocide.
Given that the ICJ’s final ruling is many years away, South Africa requested the court to issue some provisional measures, including an order asking Israel to immediately suspend its military operations in Gaza to mitigate the risk of genocide.
During its argument in the ICJ on January 12, Israel rejected all allegations of genocidal intent and presented evidence to the contrary, showing it was delivering food, water, medical supplies and fuel to Gaza. It also argued that the deaths and injuries to the residents of an active combat area can’t be deemed genocidal. Rather, they are a natural corollary of military action, it argued. Israel said it has the right to defend its citizens under international law in response to Hamas’s terror attacks on October 7, 2023, which left over 1,200 Israelis dead. Israel claimed its strikes are against Hamas, the terror outfit, and not the civilian population in Gaza.
ICJ’s mandate
The ICJ is the principal judicial organ of the United Nations that settles disputes between states and gives opinions on legal questions referred to it by authorised UN organs and specialised agencies. The court has 15 judges, who are elected for nine years by the United Nations General Assembly and the Security Council. Its official languages are English and French.
ICJ's rulings are final and there is no appeal. Theoretically, the court’s orders and binding but in practice, they are unenforceable. For example, in 2022, the ICJ had ordered Russia to "immediately suspend military operations" in Ukraine. The order was ignored. Earlier, in 1986, the ICJ ruled that US support to the contras in Nicaragua was illegal and that Washington must pay reparations to the Sandinistas. The US had initially said it would respect the decision, but when the adversarial order came, it rejected it.
South Africa’s role
Why has South Africa chosen to drag Israel to the ICJ when its orders are not enforceable? More so, when the country is not involved in any or directly harmed by the war in Gaza? Such an intervention by a third party is rare but not without precedent. In 2019, Gambia took Myanmar to the ICJ accusing it of genocide against the ethnic Rohingya people. When the question came up about the African nation’s locus standi, the judges ruled that Gambia had the right to file the case because the Convention obligates every individual state to prevent genocide.
As for South Africa, its intentions could be more than just altruistic. The ruling African National Congress is bracing for its toughest election this year since coming to power in 1994. President Cyril Ramaphosa is seeking a second term amid widespread criticism of his government’s failure to fulfil poll promises. There are allegations that the government has failed to provide basic services to millions of the country’s poor Black majority. With the economy in shambles, the unemployment rate is hovering around 32%. Also, surveys say a raft of corruption charges involving top leaders could make it even harder for the ruling ANC to win over a disillusioned electorate. In such a scenario, the optics of the ANC standing up against one of the world’s most influential countries, may ratchet up its electoral fortunes.
Way forward
Israel, backed by the US and its powerful Western allies, has repeated rejected allegations of genocide. At the same time, it has also been pushing back against demands — including from the US — to scale down its military operations in Gaza. It is not clear if Israel will accept the ICJ’s interim order. However, the somewhat nuanced ruling — without a clear order for an immediate ceasefire — has made it easier for Tel Aviv to consider toning down its offensive. Also, undermining the ICJ ruling carries the risk of reputational harm and loss of influence on the global scene.
The main case could drag on for at least four years, given the way the ICJ works. The negotiations involve long, detailed written applications, which are usually followed by arguments and counterarguments from legal representatives of each country. The judges will then decide on a final verdict. Whatever the outcome, and regardless of whether the verdict is accepted, it will have brought the Genocide Convention to the fore, making it difficult for warring parties to ignore it with impunity in future conflicts. The wheels of justice turn slowly, but grind extremely fine.
Definition of genocide
The dictionary meaning of genocide is “the deliberate killing of a large number of people from a particular nation or ethnic group with the aim of destroying that nation or group”. The entire case in ICJ hinges on the definition of genocide under international law and whether the judges find Israel’s actions in the Gaza Strip come within its ambit
The Genocide Convention of 1948 is the first human rights treaty adopted by the UN General Assembly on 9 December 1948 in the aftermath of the atrocities committed during the Second World War. According to the Convention, genocide is a crime that can take place both in times of war as well as peace. Article II of the Convention says “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group.”
The Convention makes it obligatory for state parties to take measures to prevent genocide, by enacting relevant legislation and punishing perpetrators, “whether they are constitutionally responsible rulers, public officials or private individuals”
Gambia vs Myanmar
In November 2019, Gambia became the first country to invoke its jurisdiction to seek redress for alleged genocidal acts committed against the citizens of another state. Gambia alleged that Myanmar’s military committed acts of genocide by systemically destroying — through mass murder, rape, and other kinds of sexual violence — villages of the Rohingya in Rakhine province
Opposing the application, Myanmar argued that Gambia, being a third party not in any way connected to the issue, did not have the legal rights and that it was acting at the behest of the Organisation of Islamic Cooperation (IOC). The African country was abusing the process of law, which should not be allowed, it contended, adding that there were no existing issues between Gambia and Myanmar. The legal team of the junta said it wouldn’t have opposed it if Bangladesh moved the application, because the country was affected by the influx of a huge number of the Rohingya from Myanmar
For its part, Gambia did not deny OIC’s support but argued that it did not take away its rights and obligations to prevent genocide
On July 22, 2022, the ICJ decided that it has jurisdiction under the Genocide Convention to hear the application filed by Gambia against Myanmar. It also clarified that the intent of the petitioner, political or otherwise, is immaterial as the court is only looking at the issue through the prism of law