OPINION - World’s highest judicial authority acknowledged there is risk of genocide being committed in Gaza

- Court did not specifically order immediate cease-fire, but unexpectedly it did request Israel report back within a month on steps it is taking to implement order

- The author is a South African lawyer. She is writing in her personal capacity.

ISTANBUL

2023 has been the deadliest year on record for Palestinians in Gaza, the West Bank, and the rest of the occupied Palestinian territory, with violent attacks by Israeli settlers and the Israeli army. At least 26,000 people have been killed and 63,740 wounded in Israeli attacks on Gaza since Oct. 7. Israel’s military campaign in Gaza is likely the most destructive in recent history. Under international humanitarian law and human rights law, Israel, as the occupying power, has an obligation to ensure the safety and protection of the population of the occupied Palestinian territory. Moreover, under human rights law, including under the International Covenant on Civil and Political Rights, [1] Israel has an obligation to protect the population in the occupied Palestinian territory against human rights violations, including their rights to life and security of person.

It is important to bear in mind that South Africa’s case is not about the longstanding Israel-Palestine conflict but rather about the duty of a state party to the Genocide Convention to prevent genocide. Both Israel and South Africa are parties to the convention, and this obligation is on both states to prevent genocide. South Africa’s application is very clear in how it describes Israel’s brutal military campaign and alleges that Israel’s actions are genocidal. Both Israel’s actions and omissions to act to prevent genocide form the basis for the request for provisional measures.

The International Court of Justice (ICJ), in setting out its findings, summarily dismissed various aspects of Israel’s defense including issues around jurisdiction, South Africa’s standing to bring the case, and the issue of whether a dispute has been established. The court acknowledged ongoing indiscriminate bombardment and attacks against the people in Gaza and the occupied Palestinian territory. Most significantly the court agreed with South Africa that irreparable prejudice will be caused before the court issues its final decision in the case concluding that the conditions for provisional measures have been met. It is significant that the court noted and set out in some detail the human rights and humanitarian situation in Gaza, even quoting various UN and other humanitarian agencies and officials, including Martin Griffiths, the UN under secretary-general for humanitarian affairs and emergency relief coordinator, who said: “Gaza has become a place of death and despair.”

ICJ orders

The ICJ on Jan. 26 made the following orders, and even though these were not in line with those requested by South Africa, they nevertheless constitute robust orders that seek to prevent the risk of genocide in Gaza.

Israel must in accordance with its obligations under the Genocide Convention, in relation to Palestinians in Gaza, take all measures within its power to prevent the:

(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 court appeared to make these orders in line with Israel’s obligations under the Genocide Convention. The court did not specifically order an immediate cease-fire and an end to Israel’s military campaign. It was however unexpected for the court to request that Israel report back within a month on the steps it is taking to implement the order. Israeli Prime Minister Benjamin Netanyahu stated after the decision was handed down yesterday that Israel’s commitment to international law was unwavering, but so was its commitment to defend itself. The court likely requested Israel submit this monitoring report to put pressure on the state to ensure that they actively take steps to implement the order. A refusal by Netanyahu to abide by the ICJ’s orders could lead to Israel’s isolation globally.

Could the ICJ orders be effective?

The world has seen numerous armed conflicts and violations of human rights arising from conflicts. Since its inception, the ICJ has disappointingly not played as a strong role as it could have in resolving wars, and conflicts and protecting human rights. Politics and political considerations affect the outcomes of this court, and this is a major shortcoming. The other stumbling block is that the court has no enforcement mechanism. The UN Security Council can enforce decisions of the court, but states holding veto powers may block this enforcement. The court took cognizance of these challenges when it requested a monitoring report from Israel.

Israel’s response to the preliminary measures is not unsurprising. Netanyahu stated after the ICJ hearing on Jan. 11-12: “No one will stop us, not The Hague, not the axis of evil and not anyone else.” He also said: “The Hague cannot stop the war in Gaza until total victory.” The malevolent reference to “total victory” could point to Israel’s intentions including a potential genocidal intent towards Palestinian occupants in the occupied Palestinian territory. Netanyahu’s statement that the state of Israel will ignore any orders is a serious concern. This case and these measures could mark a turning point for states that are supporting it. It is worth recalling that any member of the United Nations which has persistently violated the principles of the UN Charter may be expelled by the General Assembly on the recommendation of the Security Council. This action is unlikely, but states like the US and the UK, which have pledged support for Israel over the last four months, will be under immense pressure to review their positions and show support for the ICJ decision. The court’s decision is legally binding on all members of the Genocide Convention. Third states must now enact these orders, including arms and diplomatic embargoes and triggering national jurisdictions, to prevent a potential genocide.

[1] https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights

*Opinions expressed in this article are the author's own and do not necessarily reflect the editorial policy of Anadolu