The ICJ rendered its Order on Provisional Measures in South Africa v. Israel
Read this if you don't know how to feel about the ruling
On Friday, January 26, 2024, the ICJ rendered its order on provisional mesures in South Africa v. Israel.
First, a summary of the order before getting into initial reactions and the analysis.
Summary of the Order
The Court began by recalling the “immediate context” with Hamas’ attack of October 7 & Israel’s subsequent “large scale military operation by land, air, & sea which is causing massive civilian casualties, extensive destruction of civilian infrastructure, & displacement of the overwhelming majority of population in Gaza.”
The Court did not mention any context prior to October 7.
The Court affirmed the existence of a dispute and rejected Israel’s formalistic defense that there is no “dispute” between South Africa and Israel under the Genocide Convention.
On jurisdiction, the Court decided that “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 Convention” thereby confirming that it is plausible that Israel is in violation of its obligations under the Genocide Convention and rejecting Israel’s arguments to the contrary. The Court did not specify which acts it considered to be plausibly in violation of the Convention. The Court’s positive finding on jurisdiction means that the case will now proceed to the merits phase to reach a final determination on this question of whether Israel has committed genocide.
On standing, the Court found that, “prima facie, South Africa has standing to submit to it the dispute with Israel concerning alleged violations of obligations under the Genocide Convention”.
The Court elevated the statements of UN sources and international organizations.
In particular, the Court considered that according to UN sources, there are over 2 million Palestinians in Gaza and Israel’s attack has resulted in at least 25,000 Palestinians killed, over 63,000 injured, 360,000 houses destroyed or damaged and over 1.7 million displaced.
The Court took note of the statement by UN Under Secretary for Human Affairs and Emergency Relief Coordinator, Martin Griffiths, that Gaza is a “place of death and despair” and now “uninhabitable” and the WHO’s statement that 93% of Gaza is facing “crisis levels of hunger.”
The Court took note of the statement by Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) that the vast majority of children in Gaza are “deeply traumatized”, thousands have been “killed, maimed, and orphaned,” noting that their “future is in jeopardy with far-reaching and long-lasting consequences.”
Referring to usage of dehumanizing language by Israeli officials, the Court cited Minister of Defense Yoav Gallant’s “complete siege” quote, “human animals” quote and quote that “we will eliminate everything” as well as President Issac Herzog’s quote that it is “not true that civilians are not involved.”
The Court also cited to the Minister of Energy’s quote that “they will not receive a drop of water or a single battery until they leave the world.”
On the risk of irreparable prejudice or urgency (which is required in order for the Court to order provisional measures and which was contested by Israel), the Court noted that this is present, citing to the Secretary General of the UN’s statement that “situation is fast deteriorating into a catastrophe” and “nowhere is safe in Gaza”.
The Court found “that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the court renders its final judgment.”
The Court was not fooled by Israel’s statement that it took certain steps to protect civilians including Israel’s declaration that it is investigating “incitement to genocide” saying these steps are insufficient to remove the risk of irreparable prejudice, confirming the urgency & necessity of provisional measures.
As to the specific provisional measures the Court ordered:
By a vote of 15-2 in favor, the Court ordered Israel to take “all measures within its power” to prevent commission of the genocidal acts set out at Article 2 of the Genocide Convention (e.g. killing and wounding Palestinians);
By a vote of 15-2 in favor, the Court ordered that Israel “shall ensure with immediate effect that its military does not commit any acts” described under Article 2 of the Genocide Convention (e.g. killing and wounding Palestinians).
By a vote of 16-1 in favor, the Court ordered that Israel “shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide.”
By a vote of 16-1 in favor, the Court ordered that Israel “shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.”
By a vote of 15-2 in favor, the Court orders that Israel “shall 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” of the Genocide Convention.”
The Court ordered Israel to report in one month on its compliance with these provisional measures and affirmed that it will give South Africa an opportunity to respond.
The ICJ’s provisional measures were all ordered by an overwhelming majority of judges. Near unanimity for each measure. The only judge who voted against everything was the Ugandan judge (and Norman Finkelstein thinks she was bought off; Uganda released a statement distancing themselves from her). Even the Israeli judge voted for aid and for punishing incitement (his separate opinion is filled with clear mischaracterizations of the Order and anecdotes and references which are not legally relevant but that’s another story).
Therefore, to summarize the finding of the Court, The ICJ has ruled, in an overwhelming majority, 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.
The ICJ did not expressly address the request for an order that Israel “immediately suspend its military operations in and against Gaza.”
Reactions
Let’s turn to the reactions of Palestinian lawyers and legal experts because this is a legal ruling and we must be aided by legal experts in understanding it.
Palestinian lawyer and former PLO negotiator Diana Buttu wrote on X: “The ICJ ruling is an end to Israeli impunity. The ruling requires Israel to take measures to prevent genocide; to ensure effective aid enters Gaza; to ensure that its military does not commit genocide and prevent and punish those who incite to genocide. Thank you, South Africa.”
Palestinian-American human rights attorney and law scholar Noura Erakat tweeted: “The ICJ has found with S Africa, that it is plausible that Israel is committing #genocide & #Palestinians are at risk of irreparable harm. And with near unanimity, it has submitted an order for provisional measures by the South Africa. Israel & the world is on notice”; “The ICJ provided a significant tool in the continuing campaign for a cease-fire, to end the genocide, for accountability, to lift the siege, to end the occupation, to dismantle apartheid. The onus remains on the people of the world to birth a better world possible that we deserve”; “Even had the Court ordered a ceasefire, because it lacks coercive authority, the [onus] to impose such a cease-fire remains on the security council and us on the people to agitate their governments to impose weapon sanctions, to charge Israelis in natl courts, & to sever [deep] ties.”
Omar Baddar tweeted: “The International Court of Justice just reviewed Israel’s campaign of mass murder & destruction in Gaza, along with the genocidal statements of Israeli leaders, & concluded that South Africa’s charge of genocide is plausible & the case against Israel will proceed. More importantly, the ICJ required Israel to take all measures to prevent genocide, & to report on these measures in a month. Because we know Israel will not meaningfully comply, this is the time for the rest of the world to do their part, to isolate Israel’s horrific government diplomatically & economically until their atrocities come to an end!”
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