The ICJ Orders Israel to Cease its Genocide
As Israel's assault continues in Gaza, the International Court of Justice made a provisional order, for Israel to cease its genocidal activities.
On Friday the 26th of January 2024, the International Court of Justice (ICJ), ordered Israel to ensure that it wouldn’t continue to commit acts in Gaza, which could be considered genocidal.
The court order was made in response to the application made by South Africa, late December 2023, in which South Africa claimed that Israel had breached its obligations under the Genocide Convention, and requested that the Court order Israel to abide by certain provisional measures, to ensure that it uphold its obligations under the Genocide Convention. In other words, South Africa both accused Israel of committing genocide, and asked the court to order Israel stop committing said genocidal acts.
This order by the Court doesn’t rule on whether Israel is committing a genocide or not, but rather determines whether it appears plausible that Israel is committing a genocide, and thus whether or not to order Israel to cease its (seemingly) genocidal actions. The Court will then, at a later date, make a full ruling on whether or not Israel has in fact violated its obligations under the Genocide Convention (i.e. committed genocide).
Specifically the court ordered Israel to “take all measures within its power to prevent”:
“(a) killing members of the group [Palestinians in Gaza];
(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.” (Para. 78)
Furthermore the Court ordered that Israel must:
“ensure with immediate effect that its military forces do not commit any of the above-described acts.” (Para. 78)
“take all measures within its power to prevent and punish the direct and public incitement to commit genocide (…)” (Para. 79)
“take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance(…)” (Para. 80)
“take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III [genocide] of the Genocide Convention”. (Para. 81).
“submit a report to the Court on all measures taken to give effect to this Order within one month, as from the date of this Order.” (Para. 82)
These measures, where voted through by the judges on the Court almost unanimously, with only Judge Sebutinde (of Uganda) and Judge ad hoc Barak (of Israel), voting against most or all of the above measures.
Proponents of Israel have attempted to declare this ruling a victory, by arguing that since the court didn’t call for a ceasefire, it is simply reaffirming Israel’s obligations under the Genocide Convention, and not calling on on Israel to cease its assault. Yet, looking at the order in context of South Africa’s application, this interpretation falls flat on its face.
Furthermore, some have even argued that, as US White House Spokesperson John Kirby put it, “The court also did not find Israel guilty of genocide.” -An argument that is irrelevant, since the order of the Court was never intended to answer whether or not a genocide is being committed, but rather if it appears plausible that a genocide is occurring, which the Court did find.
The Courts final decision, regarding whether or not genocide is actually taking place, will be made at a later time.
In reality, the order does appear to favour the Palestinians, as argued by the former director of the New York Office of the United Nations High Commissioner for Human Rights, Craig Mokhiber (who recently resigned in protest of inaction on the part of the UN):
“The ICJ has ruled on provisional measures in the #Genocide case against Israel, which must immediately stop killing & harming people in #Gaza & inflicting destructive conditions on them, punish incitement, allow all humanitarian aid, save evidence & report next month.
Not a ceasefire exactly, but they are ordered to stop the acts that were complained about, killing, harming, destruction, etc. Tricky because Israel will likely continue but claim military necessity and lawful intent. The mandated report next month & court response will be crucial.
But this is a massive victory. The court ruled that South Africa’s genocide claim is “plausible” at this stage and ordered Israel to stop all related acts and allow relief to the people of Gaza.
Israel, accustomed to impunity, is unlikely to comply. Whether or not they report back to the court next month on measures, the Court will have to act again. And the Security Council can be called to act on non-compliance at any time. The complicit US will then likely veto action
The General Assembly would then be convened to act. A strong resolution there could call for specific legal, economic, political, diplomatic, consular, organizational & other measures. And individual states and regional orgs should act as well, as a legal duty.
In sum, while imperfect without a call for an unconditional ceasefire, the court’s order is a historic & powerful tool in the struggle against Israeli impunity, further empowering states, organizations & activists to step up pressure on the apartheid regime. Time for all to act.”
Considering both South Africa’s application and the Courts order, Mokhiber’s opinion appears accurate.
In it’s application, South Africa laid out prima facie evidence demonstrating that Israel is committing a genocide in Gaza, based on numerous reports of the immense violence and destruction that has defined Israel’s assault, along with statements of top Israeli officials (including the Prime Minister, President, Minister of Defence, and others), quite clearly showing a genocidal intent on the side of Israel.
It was based on this application, that the Court made its order, which notably states that Israel must “take all measures within its power to prevent” killing and harming Palestinians in Gaza. The order in general (see excerpt above) is quite clear that Israel must do anything it possibly can do to ensure killing and harming Palestinians in Gaza.
It was the evidence documented by South Africa in its application, which demonstrated how Israel has conducted its assault, which was the basis for the Court’s decision to issue this order, and so it is difficult how Israel can in any way continue its assault, without breaching the order of the Court.
Israel’s assault is, evidently to anyone willing to look at the death and destruction that is taking place, fundamentally at odds with the order of the Court. More than 27.000 Palestinians have been killed, of which 18.000 are women and children, due to the relentless and indiscriminate nature of Israel’s assault.
This isn’t to say that Israel is necessarily prevented from any military action by the Court order, yet it clearly means, that it can’t continue its attack with anywhere near the degree and form of violence and destruction that it currently is, without breaching the order.
Nonetheless, even if the order of the Court can be considered i victory for Palestinians, it is still not clear how much of a difference it will make in the immediate term. In the week since the order was made, Israel has continued its onslaught, in complete disregard of the order of the Court. There are ongoing negotiations for a ceasefire, yet it is still unclear how and if the currently ongoing negotiations for a ceasefire will manifest.
What is clear though, is that the situation for the Palestinian population is absolutely dire, with the desperation growing by the day. Those who aren’t killed by the bombings are starving to death, barely able to get any food clean drinking water, as famine has gripped the population.
A woman in Gaza speaking to CNN, stated that:
“We are dying slowly. I think it’s even better to die from the bombs, at least we will be martyrs. But now we are dying out of hunger and thirst.”
As an example of the horrors that define the suffering of Palestinians, doctors are performing surgeries and amputations on both children and adults without being able to give them any anaesthesia:
“The fact that there’s now 1,000 new amputees, at least — and that number is going to grow, because a lot of these kids are with significant injuries in which their limbs are going to have to be amputated in the coming weeks and months. Let’s keep in mind, not only were they amputated without anesthesia, but many of them were amputated in a very quick fashion.” -Steve Sosebee of the Palestine Children’s Relief Fund, speaking to Democracy Now.
Ultimately, the situation for the Palestinians is increasingly dire, and while the order of the ICJ should be recognised for the extent to which it constitutes a victory for Palestinians, it remains clear that a much more immediate resolution is necessary.
Hopefully, the ceasefire that is being negotiated can help to ameliorate the situation, and at least reduce the suffering that the Palestinians are experiencing.