Photo: Davide Longari Agence France-Presse A pro-Palestinian activist waved a Palestinian flag in Johannesburg, South Africa, after the International Court of Justice's ruling on Friday.
Stephanie Marin
January 26, 2024
- Middle East
All eyes were on The Hague, Netherlands, on Friday, where the International Court of Justice delivered a much-anticipated ruling after Israel was accused of committing genocide in Gaza. The president of the highest international court, American judge Joan Donoghue, read the decision and ordered Israel to comply with a series of precautionary measures aimed at avoiding further suffering for Gazans and preventing any acts that could lead to a conviction of genocide. This historic judgment is a rare foray by a court into the heart of an ongoing armed conflict, and it divides citizens around the world.
What was ordered to Israel ?
The court ordered six interim measures to protect Palestinians in Gaza. Basically, Israel was required to “take all measures in its power” to prevent any act prohibited by the Convention on the Prevention and Punishment of the Crime of Genocide, notably the murder of members of a group (here, the Palestinians of Gaza), the serious attacks on their physical and mental integrity and the imposition of conditions of existence likely to lead to the annihilation of the group. Israel must also ensure, “with immediate effect,” that its military does not commit any of these prohibited acts.
In addition, the Jewish state must allow the required humanitarian aid into the Gaza Strip to relieve the Palestinians. Then, the Court tells Israel that it must “prevent and punish” incitement to commit genocide as well as preserve all evidence relating to the allegations of genocide made against it.
Is this the equivalent of a ceasefire order ?
No, replies Marie Lamensch, project coordinator at the Montreal Institute for Genocide and Human Rights Studies at Concordia University. The Court has the power to issue this order — it was asked to order Israel to immediately suspend its military operations in Gaza — but has not done so. Instead, it chose to prohibit Israel from committing certain acts, such as killing or harming the residents of the Gaza Strip. Which does not mean that the Jewish state is prevented from continuing any military operation, she explains, but it must take many more measures to protect civilians, not target them and allow humanitarian aid to enter. the tiny coastal enclave. “The Court could have gone much further. » She did so in 2022 by ordering Russia to stop its invasion of Ukraine.
Is Israel committing genocide, according to the Court ?
The highest court of the UN did not have to decide on this question for the moment.
“Such a conclusion could only be formulated by the Court at the stage of examining the merits of the present case,” it is written in the judgment. In other words, the Court will rule later, after a trial during which all the evidence will be presented.
The Court, however, found it “plausible” – the burden of proof that had to be met here for there to be a decree of protective measures – that certain rights of Palestinians in Gaza are not currently respected, including the right to “be protected against acts of genocide.”
According to Ms. Lamensch, Friday's judgment means that the Court “sees signs” of genocide on the ground, which is also reflected in its order for Israel to withhold any evidence that could support such a conclusion.
What is a precautionary measure ?
This is in a way an injunction which aims to safeguard rights, while awaiting a judgment on the merits of the case. A full trial will take place, but years may pass before such a judgment is rendered.
In the meantime, the Court has the power to order provisional measures when there is a “real and imminent” risk that irreparable harm will be caused to a group if nothing is done.
The Court ruled on Friday: the damage could be irreparable. She considers that “the civilian population of the Gaza Strip remains extremely vulnerable.” The UN court recalls that the military operation led by Israel — as a response to the bloody attack by Hamas on Israeli territory on October 7, 2023 — has so far caused tens of thousands of Palestinian deaths and injuries and has caused the destruction of homes, schools, medical facilities and other vital infrastructure as well as massive population displacement.
The judges note that this armed offensive is “still ongoing” and that Israel’s prime minister announced in mid-January that the war “will last for many more months.” Even today, many Palestinians in the Gaza Strip “do not have access to basic foodstuffs, drinking water, electricity, essential medicines or heating,” we read in the decision.
In it, the Court describes the humanitarian situation as “catastrophic” and adds that it is likely to deteriorate further before the final judgment is rendered. In short, the body is of the opinion that there is indeed an urgent need to act.
Is Israel obligated to comply with the judgment ?
The Court recalled that its orders were “obligatory” and that the member states of the Convention must comply with them. Its decisions are final. However, she has no way of enforcing them. When it ordered Russia two years ago to suspend its invasion of Ukraine, Moscow completely ignored it.
As for the Prime Minister of Israel, Benjamin Netanyahu, he has already suggested that he would not feel obliged to follow an order from this court.
The Court's judgment is important, even if it has no way of forcing respect for it, believes Ms. Lamensch. It can also serve as an argument for States that want to put pressure on Israel to stop its murderous military offensive.
Asking the UN Security Council to intervene and authorize the use of force to enforce the Court's decision is “possible in theory” but unlikely, particularly because the United States, a almost unwavering ally of Israel, have a right of veto, recalls Ms. Lamensch.
Good to know
- It was South Africa which brought this request for the imposition of protective measures to the International Court of Justice in December. Any country that is a member of the Convention on the Prevention and Punishment of the Crime of Genocide can demand its compliance, even if it is not a victim of the alleged acts.
- The Court did not render a unanimous judgment. The majority of the 17 judges agreed on all six orders, but the Israeli judge dissented from four of them, and the Ugandan judge dissented from all of them.
- Within a month, the State of Israel must submit to the Court a report on all the measures it has taken to give effect to the judgment.
- Israeli hostages held captive by Hamas in the Gaza Strip were mentioned in the ruling. The Court said it was “gravely concerned” about their fate and called for their “immediate and unconditional” release.
- The Convention on the Prevention and Punishment of the Crime of Genocide was adopted in 1948 in response to the Holocaust, the genocide of the Jewish people carried out during World War II.