ISRAEL AT WAR - DAY 142

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ICJ tells Israel to ‘prevent genocide’ in Gaza, rejects ordering immediate ceasefire

In its decision, Hague court finds there is ‘plausibility’ to South Africa’s claims that the rights of Palestinian not to be subjected to genocide must be urgently protected

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Presiding judge Joan Donoghue, right, opens the session at the International Court of Justice in The Hague, Netherlands, Friday, Jan. 26, 2024. (AP Photo/Patrick Post)
Presiding judge Joan Donoghue, right, opens the session at the International Court of Justice in The Hague, Netherlands, Friday, Jan. 26, 2024. (AP Photo/Patrick Post)

The International Court of Justice ruled on Friday that at least some of Israel’s actions in the Gaza Strip during the ongoing war against Hamas could fall within the terms of the Genocide Convention and said it must therefore take a series of preventative measures.

The decision, made 15-2, that there is “plausibility” to South Africa’s claims that Palestinians require protection from genocide, is damaging to Israel.

However, the court did not take the action most desired by South Africa and feared by Israel — that of ordering an immediate, unilateral ceasefire which would have stymied the war effort and indicated that the court believes genocide is actively taking place.

Crucially, the court did not use the word “desist” in its decision, which would have also indicated it believed genocide was actively taking place. The order repeated on several occasions that the decision was not a determination on the merits of South Africa’s allegations of genocide. And the provisional measures do not indicate how the ICJ might rule in the far lengthier process on the case.

Although this will take the sting out of the orders against Israel, the court’s acceptance that there is plausibility to some of South Africa’s claims may cause reputational and diplomatic damage to Israel.

Responding to the ruling, Prime Minister Benjamin Netanyahu said the court’s decision not to grant the order for Israel to declare an immediate ceasefire meant that it had rejected South Africa’s claim that it had no right to self-defense against the October 7 atrocities committed by Hamas, which sparked the current war.

The International Court of Justice (ICJ), the principal judicial organ of the UN, holds public hearings on the request for the indication of provisional measures submitted by South Africa in the case South Africa v. Israel on 11 and 12 January 2024, at the Peace Palace in The Hague, the seat of the Court. (Courtesy International Court of Justice)

“The vile attempt to deny Israel this fundamental right is blatant discrimination against the Jewish state, and it was justly rejected,” stated Netanyahu following the ruling, while insisting that the charge of genocide against Israel was “not only false, it’s outrageous,” and that “decent people everywhere should reject it.”

South Africa, meanwhile, hailed the decision, calling it a “decisive victory for the international rule of law and a significant milestone in the search for justice for the Palestinian people.”

Along with the order to “take all measures within its power” to prevent genocide against the Palestinians, the ICJ specifically ordered Israel to ensure that the IDF does not carry out acts of genocide, including to prevent the killing or injuring of Gazans, prevent conditions that would lead to such harm, and ensure the avoidance of conditions intended to prevent births among Gazans (15 votes to 2).

Related: Full text of the ICJ ruling

It further ordered that the state prevent and punish incitement to genocide against Palestinians (16 to 1); take urgent measures to alleviate the “adverse” humanitarian situation in Gaza (16 to 1); prevent the destruction of evidence related to allegations of acts genocide (15 to 2); and report back to the court in one month on the issues laid out in the order (15 to 2).

The court decided that the numerous and highly inflammatory comments made by some senior Israeli officials, which could be interpreted as an endorsement of deliberately harming civilians, gave plausibility to South Africa’s allegations that Israel has genocidal intent against Palestinians in Gaza in the current conflict.

Reading out the court order, President of the ICJ Judge Joan E. Donoghue specifically cited comments by Defense Minister Yoav Gallant, then-Energy Minister Yisrael Katz and President Isaac Herzog that had raised concerns among the judges on the court.

The issue of intent is crucial to demonstrating that genocide may be underway, and the court essentially ignored the argument of the Israeli defense team that the comments of senior officials outside of the decision-making framework of the security cabinet were irrelevant to determining Israeli policy regarding the prosecution of the war.

Judge Aharon Barak, the ad hoc judge appointed by Israel to the ICJ bench (as is the right of every party to proceedings), voted against the order that Israel must take steps to prevent genocide, but voted in favor of the order that Israel must take steps against incitement to genocide and to provide aid to Gaza to alleviate the severe humanitarian conditions in the coastal enclave.

A picture taken from Rafah shows smoke billowing over Khan Yunis in the southern Gaza Strip during Israeli bombardment on January 24, 2024, amid ongoing battles between Israel and the Palestinian militant group Hamas. (AFP)

Donoghue started out by noting the October 7 atrocities perpetrated by Hamas — which South Africa in its arguments never did — noting that the terror group had killed over 1,200 Israelis, injured thousands and abducted 250 hostages.

“Israel then launched an attack which is causing massive civilian casualties, and doing extensive ongoing damage to civilian infrastructure and has displaced the vast majority” of Palestinians in Gaza, she said.

“The court is acutely aware of the extent of the human tragedy in the region and is deeply concerned by ongoing suffering in Gaza,” she continued.

“In the court’s view, at least some of the acts and omissions committed by Israel in Gaza appear to be capable of falling within the provisions of the genocide convention. In light of the following, the court concludes it has prima facie jurisdiction to entertain the case on the basis of Article 9 of the Genocide Convention,” intoned Donoghue while reading out the court order.

“The court cannot accede to Israel’s request that it not entertain the application.”

Donoghue read out several statements by officials from the UN, the World Health Organization and others describing how thousands of women, children and civilians had been killed and injured during the war, the dire humanitarian situation in Gaza, and the severe physical and psychological affect the hostilities have had on the civilian population, in particular children.

After reading out the comments by Gallant, Katz and Herzog, she added: “The aforementioned facts and circumstances are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article 3 of the Genocide Convention, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the convention.”

At the conclusion of the reading of the order, Donoghue also included a statement calling for the immediate and unconditional release of the hostages currently being held in captivity by Hamas in Gaza.

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