What did ICJ say on the genocide in Gaza? Will Israel obey?

The argument over whether Israel is committing genocide against Palestinians in the midst of the ongoing conflict in Gaza, which was brought up by South Africa, was heard earlier this month by a panel of 17 judges at the International Court of Justice (ICJ), the highest court of the United Nations. On Friday (26 January), the world court instructed Israel to “take all measures within its power” to prevent acts of genocide, however, stopped short of calling for a full ceasefire. Rejecting Israel’s argument that the court lacked jurisdiction to order interim measures, it reiterated the binding nature of its rulings. Notably, the rulings come at a time when international calls for a ceasefire have been growing, putting pressure on Israel and its American backers in recent weeks. Let’s take a closer look at the case. What was South Africa’s case against Israel? South Africa told the world court during a two-day hearing on 11 and 12 January, that Israel’s actions in the Gaza Strip were in violation of the 1948 Genocide Convention, to which Israel is a party, according to TIME magazine. Israeli leaders, according to government lawyers in South Africa, intended to “create conditions of death” for Palestinians living in Gaza. Video and public statements by Israeli officials were presented in court, among them Defence Minister Yoav Gallant’s October statement that Israel would impose a complete siege to the region since it was engaged in combat with “human animals.” [caption id=“attachment_13659772” align=“alignnone” width=“640”] South African president Cyril Ramaphosa, first row left, listens in Johannesburg, on 26 January, to the ruling from the top UN court that harshly criticized Israel’s war against Hamas. AP[/caption] The accusation of genocide has been flatly refuted by Israeli lawyers, who claim that the country’s military gave civilians enough notice to evacuate before the invasion in late October. They added that Israel had opened up aid distribution after it had been shut down at the beginning of the conflict. To demonstrate its attempts to prevent injury to civilians, Israel released over 30 secret orders issued by military and government officials as part of its defence. The court had to decide if Israel’s alleged acts were under the Genocide Convention and whether the proposed restrictions were actually necessary to protect the rights of Palestinians in Gaza before deciding whether to apply all or any of the emergency measures that South Africa had requested. What did the ICJ say? In a ruling that will keep Israel under the legal lens for years to come, the court offered little other comfort to Israeli leaders in a genocide case brought by South Africa that goes to the core of one of the world’s most intractable conflicts, according to The Associated Press. The court’s half-dozen orders will be difficult to achieve without some sort of cease-fire or pause in the fighting. “The court is 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,” court President Joan E. Donoghue said before acknowledging that both parties have “clearly opposite views” on the matter. [caption id=“attachment_13659762” align=“alignnone” width=“640”] Presiding judge Joan Donoghue, centre, speaks during session at the International Court of Justice, or World Court, in The Hague, Netherlands. AP[/caption] The ruling amounted to an overwhelming rebuke of Israel’s wartime conduct and added to mounting international pressure to halt the nearly 4-month-old offensive that has killed more than 26,000 Palestinians, decimated vast swaths of Gaza and driven nearly 85 per cent of its 2.3 million people from their homes. In the court’s view, however, “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 (Genocide) Convention,” Justice Donoghue said. Although the court failed to order Israel to stop its bombardment, it asked that the Israeli military abide by the Genocide Convention by stopping and punishing incitement to genocide and by providing Gaza basic aid. According to Al Jazeera, the international court has ordered that Israel prevent destruction of evidence of war crimes committed in Gaza and allow access to fact-finding missions. The court further ordered that Hamas release the hostages who are still detained. The panel told Israel to submit a report on steps taken within a month. South Africa will have the chance to respond to this report, as per the report. As per AP, Friday’s decision was an interim ruling. It could take years for the court to consider all aspects of South Africa’s genocide allegations. The UN Security Council scheduled a meeting for Wednesday to follow up on the ruling. The South African government said the ruling determined that “Israel’s actions in Gaza are plausibly genocidal.” “There is no credible basis for Israel to continue to claim that its military actions are in full compliance with international law,” the government said in a statement. Is the interim ruling binding? South Africa and Israel cannot appeal a court decision because they are both United Nations members and are therefore bound by its rulings. Nevertheless, the ICJ lacks any means of enforcing its orders. Another option is for South Africa or other countries to write to the UN Security Council (UNSC), whose members would be urged to cast votes requiring Israel to follow the ICJ’s emergency measures. Since the onset of the Gaza War, the US has already used its veto power to stop resolutions that demanded a ceasefire and responsibility from its close ally, Israel. [caption id=“attachment_13570622” align=“alignnone” width=“640”] Israeli Prime Minister Benjamin Netanyahu[/caption] However, according to another report by Al Jazeera, experts warn that US President Joe Biden’s demands for others, even rivals like China and Russia, to preserve the global rules-based order might be damaged and undermined by the US’ veto of an ICJ-approved ruling. The UNSC could punish Israel if it adopts a resolution mandating that Israel follow the rulings of the world court. Travel restrictions, arms embargoes, and trade or economic penalties are a few instances of this from the past. The UN charter also gives the Council the authority to intervene forcefully. A prime example of this was the 1991 formation of the US-led military coalition in opposition to Saddam Hussein’s invasion of Kuwait. The US is unlikely to permit the Security Council to adopt any action of this sort against Israel, experts told the news channel. Will Israel follow the directives? Israel’s administration, which was formed as a Jewish state after the Nazi slaughter of six million Jews during World War II, suffered greatly from allowing the accusations to remain unanswered. Such provisional measures issued by the world court are legally binding, but it is not clear if Israel will comply with them. Israeli prime minister Benjamin Netanyahu said the fact that the court was willing to discuss the genocide charges was a “mark of shame that will not be erased for generations.” He vowed to press ahead with the war. “We will continue to do what is necessary to defend our country and defend our people,” said Netanyahu, who pushed back against the ruling in two languages. In a message aimed at his domestic audience, the tone was more defiant in Hebrew, and he stopped short of overtly criticising the court in English. [caption id=“attachment_13494282” align=“alignnone” width=“640”] Israeli students at Tel Aviv University hold Palestinian and Israeli flags while protesting Prime Minister Benjamin Netanyahu’s new government on 16 January 2023. AFP[/caption] The power of the ruling was magnified by its timing, coming on the eve of International Holocaust Remembrance Day. “Those truly needing to stand trial are those that murdered and kidnapped children, women and the elderly,” former Israeli defense minister Benny Gantz said, referring to Hamas militants who stormed through Israeli communities on Oct. 7 in the attack that set off the war. The assault killed some 1,200 people and resulted in another 250 being kidnapped. In Israel, commentators said the decision not to order a cease-fire was received with some relief since it helped Israel avoid a collision with a top UN body. There will be pressure on Israel’s international supporters even if it decides to ignore the ICJ’s directives. “Israeli politicians have already said that they’re going to ignore the ICJ order. It is much harder for, particularly, the US and European states including the UK, to ignore the order because they have a much stronger record of holding or supporting the International Court of Justice,” Mark Lattimer, the executive director of Ceasefire Centre for Civilian Rights, told Al Jazeera. It would undermine the “credibility of the rules-based international order that the US claims to uphold”, Lattimer said, adding that it would also “entrench a growing divide” between the US and Western countries versus states in the Global South which view those claims of “upholding global order” with skepticism. Later Friday, UN Secretary-General Antonio Guterres stressed that the top court’s rulings are legally binding and “trusts” that Israel will comply with its orders, including “to take all measures within its power” to prevent acts that would bring about the destruction of the Palestinian people. Israel often boycotts international tribunals and UN investigations, saying they are unfair and biased. But this time, it took the rare step of sending a high-level legal team — a sign of how seriously it regards the case, as per AP. What happens if Israel doesn’t comply? According to Zaha Hassan, a Middle East Fellow at the Carnegie Endowment for International Peace, told TIME, “Having the world court say to the state of Israel that it is plausible that Israel is committing genocide will be heard by the rest of the international community, even if Netanyahu doesn’t want to hear it.” “Not only will it embolden international civil society in their calls for a ceasefire, it will also put pressure on the US and its President Joe Biden to support a ceasefire or suspend military aid to Israel. “ Zinaida Miller, a professor of law at Northeastern University, told the magazine that if “countries are sending weapons to Israel, or are in any way facilitating the mass atrocities in Gaza, they will have to consider their commitment under the 1948 Genocide Convention to prevent the crime from happening and to avoid complicity in it.” There are more reasons why the ICJ case and yesterday’s ruling are important. “It’s a moment when Palestinians have had a public airing of the structural violence and oppression they have long faced and it holds the prospect of accountability for victims, something that has always eluded Palestinians,” said Hassan. With inputs from agencies