ICJ calls on Israel to protect civilians and prevent incitement to 'genocide'

ICJ calls on Israel to protect civilians and prevent incitement to 'genocide'
The Great Hall of Justice at the International Court of Justice in the Hague, credit: ICJ

The International Court of Justice (ICJ) issued on Friday its decision ('order') in South Africa’s case against Israel regarding the application of the genocide convention in the Gaza Strip.

South Africa, which has not condemned Hamas terrorist attack, claims that Israel’s war against Hamas shows a pattern of “genocidal intent”. It had requested the Court to indicate that Israel should “immediately suspend its military operations”. Israel totally rejects South Africa’s claims as the allegation of “intent” is based on a selection of extremist statements that do not reflect its policy.

In its order, the court largely accepted South Africa's narrative of the Israel-Hamas war and only mentioned Hamas role in one sentence in the introduction of the order, recalling the immediate context in which the case came before it.

"On 7 October 2023, Hamas and other armed groups present in the Gaza Strip carried out an attack in Israel, killing more than 1,200 persons, injuring thousands and abducting some 240 people, many of whom continue to be held hostage. Following this attack, Israel launched a large-scale military operation in Gaza."

No call for ceasefire, provisional measures

The court did not order Israel to immediately suspend its military operations, as South Africa had requested, indirectly recognising Israel's right to self-defense. Not even the South African judge in the court voted for it.

The court concluded that there is an urgency and imminent risk of irreparable damage to the rights of the civilian population in Gaza because of the war. Pending its final decision, the court directed Israel to take certain measures to protect these rights.

Israel must take all measures within its power to prevent the commission of all acts within the scope of the genocide convention. The acts fall under the convention (article II) if they are committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group - an allegation which Israel vehemently rejects.

The court directed Israel to do everything in its power to avoid deaths and injuries in the Gaza Strip. Israel shall also 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; and to allow humanitarian access for the Palestinian people".

The court also said that Israel should gather evidence of any potentially punishable acts that fall within the convention’s remit. Furthermore, the court instructed Israel to take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip.

Such statements by Israeli politicians in the direct aftermath of Hamas murderous terrorist attack were quoted by the court and played into the hands of South Africa in its case before the court. The Israeli state attorney has launched investigations of hateful and dehumanizing statements that may be criminal but until now no-one has been prosecuted.

Additionally, the court deems it necessary to emphasize that all parties to the conflict in the Gaza Strip are bound by international humanitarian law. "It is gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release."

Last but not the least, Israel shall submit a report to the court on all measures taken to give effect to its order within one month as from the date of the order.

Aharon Barak, a Holocaust survivor and former president of the Israeli supreme court, voted for the court's orders calling for Israel to prevent and punish incitement and to enable access to humanitarian aid. Israel says that it already is complying with the court's orders but will have to prove that the humanitarian situation in the Gaza Strip has improved at the time of the report.

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At this stage, the ICJ did not rule on whether Israel is committing genocide in Gaza, noting that this part of the procedure could take years. The judges expressed their concern over the "human tragedy" in Gaza, the numerous reported deaths and the suffering of the territory’s population. The comments of the UN’s emergency relief coordinator, Martin Griffiths, who said that the Gaza Strip was at risk of becoming uninhabitable, were particularly noted.

Reactions to court decision

"Israel's commitment to international law is unwavering,” commented Prime Minister Benjamin Netanyahu after the court’s decision. “Equally unwavering is our sacred commitment to continue to defend our country and defend our people. Like every country, Israel has an inherent right to defend itself.

“The vile attempt to deny Israel this fundamental right is blatant discrimination against the Jewish state, and it was justly rejected. The charge of genocide leveled against Israel is not only false, it’s outrageous, and decent people everywhere should reject it. Our war is against Hamas terrorists, not against Palestinian civilians.”

“We will continue to facilitate humanitarian assistance, and to do our utmost to keep civilians out of harm's way, even as Hamas uses civilians as human shields,” he added.

South Africa welcomed the decision as a "decisive victory for international law and an important step in the quest for justice for the Palestinian people". In a statement the country's foreign ministry believes "the court has established that Israel’s actions in Gaza could plausibly be considered genocidal and for outlining interim measures based on this." Israel claims that South Africa acted as the legal arm of Hamas in the court.

EU's High Representative Josep Borrell and the European Commission issued a joint statement where they noted ICJ's order and reaffirmed EU's continuing support to the court. Only states are eligible to appear before the court in contentious cases and the EU did not submit any  opinion of its own to the court.

For its part, Prime Minister Alexander De Croo issued Belgium's official response to the ruling, reiterating its support for the ICJ and commitment to ensure that rulings are complied with. He repeated Belgium's call for an "immediate cease-fire" and emphasised the need to "work towards a two-state solution".

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