In a groundbreaking development, the International Court of Justice (ICJ), the primary judicial body of the United Nations, issued its Order on the request for provisional measures submitted by South Africa in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). The ruling, delivered at the Peace Palace in The Hague, marked a pivotal moment in the ongoing legal dispute.
ICJ President Joan Donoghue expressed deep concern over the loss of life in the Gaza Strip, acknowledging the unfolding human tragedy in the region. The court, in its view, found that some of Israel's actions in Gaza, as brought forward by South Africa, fell within the provisions of the UN's Genocide Convention.
The court's decision addressed South Africa's request for nine provisional measures, focusing on the prevention of further harm to the rights of the Palestinian people under the Genocide Convention.
Notably, the ruling refrained from determining the core accusation of Israel committing genocide in the Palestinian enclave, but instead aimed at protecting the vulnerable populace against future harm.
President Donoghue emphasized the gravity of the situation by ordering Israel to take all measures within its power to prevent genocide and the incitement of genocide. The court also mandated Israel to allow the entry of humanitarian assistance and basic services for Palestinians in Gaza.
However, the efficacy of the ICJ's rulings faces scepticism, given the lack of enforcement mechanisms. Past instances, such as the ICJ's order for Russia to halt its offensive in Ukraine, demonstrated the limitations of the court's ability to compel compliance.
During the public hearings, South Africa argued that Israel's military operations in Gaza violated the Genocide Convention, citing statements from Israeli officials and military leaders as evidence of "genocidal intent." Reports from international organisations, including the International Committee of the Red Cross and the World Health Organization, were presented to underscore the indiscriminate killing of civilians and Israel's blockade of humanitarian assistance.
In response, Israel maintained that its military operations were targeted solely at dismantling Hamas and accused South Africa of relying on statistics provided by the militant group.
The ICJ's provisional measures include orders for Israel to prevent genocidal acts, ensure its military does not commit such acts, and prevent and punish any public comments that incite genocide in Gaza. Additionally, Israel is directed to report to the court within a month on the steps taken to comply with these measures.
The court's order also includes the preservation of evidence in Gaza, with a vote of 15 to 2. Israel is obligated to ensure access to this evidence by fact-finding missions and international bodies.
While the ICJ's ruling creates binding international legal obligations for Israel, the real-world impact remains uncertain. The court's decision may influence international public opinion, but its ability to enforce compliance remains a significant challenge. The complex legal battle between South Africa and Israel continues, with the provisional measures serving as an initial step in a potentially lengthy legal process.
The ICJ's ruling in the case brought forward by South Africa against Israel represents a significant acknowledgement of the merit in South Africa's arguments; a nuanced perspective, however, emerges in the final operative paragraph. The judges concurred on crucial points, affirming jurisdiction, standing, and the alignment of certain allegations with the Genocide Convention.
The divergence arises in the specific provisional measures ordered by the court, deviating from South Africa's requests. Notably, the court directed Israel to enhance humanitarian aid and mandated a return appearance with a comprehensive report within a month. Concerns over the lack of emphasis placed on a direct ceasefire have stirred a new wave of protests by the crowd outside the court.
The ruling underscores Israel's obligation to take every measure within its power to prevent actions that could lead to genocide, raising complex legal questions for scholars to dissect, particularly concerning the protection of individuals within the defined "protected group."
What was the case?
In recent days, the International Court of Justice (ICJ) has become the stage for a contentious legal battle between South Africa and Israel. As the Israeli siege on Gaza remains ongoing for over 100 days claiming the lives of more than 26,000 individuals, legal proceedings at the ICJ delve into the details of the conflict. Following airstrikes conducted by the Palestinian militant group Hamas, Israel’s retaliations evolved into an ongoing siege with unlimited bombardment of civilian safe zones, hospitals and schools.
Given the overwhelming civilian casualties and weaponisation of aid services, food and medical supplies, South Africa accused Israel of committing open genocide – calling for a trial at the ICJ. Presenting a case teeming with harrowing allegations, South Africa has left no stone unturned to present substantiated evidence against Israel.
South Africa's legal team, led by John Dugard, has charged Israel with committing a number of key genocidal acts in Gaza. These acts include mass killings of Palestinians, infliction of serious physical and mental harm, forced displacement coupled with a food blockade, destruction of the healthcare system, and the prevention of Palestinian births.
Each allegation highlights the grievous nature of the conflict, calling for severe action to be taken to end the conflict and impose consequences on the state of Israel.
As the case made its way through the various stages of the court proceedings, the defence and the prosecution have had opportunities to argue their stand. As the primary prosecutor, South Africa has detailed several allegations presented against Israel and calls for an immediate ceasefire as well as specific documentation and reports on their actions in Gaza and their claimed attempts to maintain international order.
South Africa’s case against Israel
The first of the allegations addresses the mass killing of Palestinian civilians. The numbers presented were over 23,000 people killed at the time of the first hearing, including nearly 10,000 children, according to Gaza's health ministry.
Adila Hassim, one of the advocates representing South Africa, painted a grim picture of mass graves, often holding unidentified bodies, and the deployment of highly destructive bombs in supposedly safe areas, resulting in the loss of numerous families.
The allegations were further elaborated by addressing the excessive bombardment of schools and hospitals, exacerbating the crisis with limited shelter and medical aid. Coupled with the restriction of trucks carrying vital life-saving supplies into the besieged region, prosecutors emphasised the targeting of safe zones prescribed by Israeli authorities themselves, leaving no place for Palestinians to protect themselves. The latest death toll released suggests the number of casualties surpassing 26,000 in Gaza alone. More than 64,000 thousand have been injured.
Building off of this, South Africa has also emphasised the intentional physical and psychological harm the violence is leaving on the Palestinian populations. Adila Hassim highlighted the nature and scope of the damage and suffering imposed on the people of Gaza.
Supporting her claims with visual evidence including photographs, videos and testimonials taken from the war zone, Hassim elaborated on the meticulously planned destruction of livelihoods in the region, describing it to be an “unprecedented killing of civilians”. The collapsing health system in Gaza merely intensified the suffering, electricity, fuel and supply shortages in hospitals.
Additionally, Hassim further asserted that forced displacement and food blockades have been a deliberate attempt by the Israeli forces to impose hardship and harm the Palestinian population.
Another genocidal action identified by South Africa is Israel's assault on Gaza's healthcare system. Years of Israeli attacks had already crippled the healthcare infrastructure, and now it struggles to cope with the influx of injured individuals in need of life-saving treatment.
As a result of the lack of essential services, a subsequent genocidal act outlined by South Africa is Israel's obstruction of life-saving treatments needed for delivering babies. This, according to Hassim, amounts to preventing births in Gaza, qualifying as an act of genocide.
The intentional denial of essential resources, including shelter, clean water, and medical care, has led to rising disease cases, further worsening the humanitarian crisis. By bombing hospitals with premature babies, to blatantly killing young children and expecting mothers, the intentional harm caused indicates an intent to prevent the expansion of the Palestinian population.
Courtroom proceedings
As the ICJ proceedings unfold, South Africa's legal team is pushing for an emergency order against the ongoing killings and destruction in Gaza. The urgency is evident, given the severe humanitarian crisis and the potential for an interim sentence to be issued in weeks.
However, legal experts anticipate that the full judgment on whether Israel has committed genocide may take years to materialize. South Africa has focused its case on the allegation that Israel has violated the Genocide Convention of 1948, which the state had ratified in 1949. The Convention is a testament to the obligation of preventing and punishing the act of genocide while taking all necessary measures to protect those suffering.
Israel’s defence
In response to South Africa's accusations, Israel has explicitly rejected the charges of genocide. Israeli legal representatives argue that there is a lack of evidence demonstrating genocidal intent in Israel's actions. Christopher Staker, representing Israel, contends that the inevitable fatalities and human suffering in a conflict do not constitute a pattern of conduct indicating genocidal intent.
Malcolm Shaw, a professor of international law representing Israel, emphasises the right to self-defence following attacks by Hamas on October 7. Shaw argues that if the charge of genocide, a crime he describes as the "epitome of evil," is levelled incorrectly, it would dilute the essence of the crime.
Moving towards a resolution
The case has sparked international attention and support, with various countries rallying behind either South Africa or Israel. Over 30 countries and international organisations have expressed solidarity with South Africa, while the United States, Israel's primary supporter, stands behind its defence along with the UK and several other Western nations.
The geopolitical dynamics, particularly the influence of the U.S. in the UN Security Council, raise questions about the enforceability of the ICJ's decisions and the potential consequences of a ruling against Israel.