Israeli bombing of Gaza. Photo courtesy the New York Times
The International Court of Justice (ICJ) ordered Friday, January 26 that Israel must take steps to prevent genocide of the Palestinian people in Gaza. This order came in response to a case submitted by South Africa to the ICJ on December 29, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).
International Court of Justice (ICJ) logo.
Israel had hoped to have the case thrown out, but the ICJ found there was a case to be heard about whether Palestinian rights were being denied. The court also called for armed Palestinian groups, including Hamas, to release the hostages captured in the October 7 attack on Israel that instigated the conflict.
While the ruling on the merits of the genocide allegations against Israel could take years, the ICJ did order several provisional measures; however, it stopped short of ordering a ceasefire.
By fifteen votes to two, the ICJ ordered, “The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention.”
Those Article II acts (established after World War II) include killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, and imposing measures intended to prevent births within the group.
The ICJ ordered Israel must ensure its military does not commit any of these genocidal acts, and that they must take measures to prevent destruction and ensure the preservation of evidence related to the allegations of genocide.
By sixteen votes to one, the court ordered Israel to take all measures within its power to prevent and punish “direct and public incitement to commit genocide” of the Palestinian people in the Gaza Strip. The court also ordered Israel to take immediate and effective measures to enable basic services and humanitarian aid to the people of Gaza.
Ugandan judge Julia Sebutinde was the dissenting vote against all of these orders. Sebutinde was joined by former Israel Supreme Court President Judge ad hoc Aharon Barak against three of the orders.
The ICJ allows state parties to choose a judge to sit temporarily (ad hoc) for the case if the state does not already have a judge of its nationality represented. South Africa selected former Deputy Chief Justice Dikgang Moseneke, while Israel appointed Barak.
Israel must submit a report to the court covering steps taken to comply with the orders within one month. The ICJ’s decisions are final without an option to appeal, but the court has no way to enforce the orders.
The ICJ, also called the World Court, was established by the United Nations Charter in June 1945 and began operating in April 1946. The court features fifteen judges elected for nine-year terms by the General Assembly and Security Council of the United Nations. In this case, the fifteen judges were joined by one from Israel and one from South Africa for a total of seventeen votes.
The ICJ’s role is to see contentious cases between states, like South Africa’s Case against Israel, or offer advisory proceedings for specifically authorized United Nations organizations and agencies. It is located in The Hague, Netherlands.
Israeli National Security Minister Itamar Ben-Gvir reportedly responded to the orders on social media platform X (formerly Twitter) with “Hague Shmague.”
Earlier this month, the U.S. State Department called rhetoric from Israeli Ministers Bezalel Smotrich and Itamar Ben-Gvir advocating for the resettlement of Palestinians outside of Gaza, “inflammatory and irresponsible”. Reuters reported that Ben-Gvir said the war in Gaza was an “opportunity to concentrate on encouraging the migration of the residents of Gaza.”
Injured Palestinians arrive at al-Shifa Hospital following Israeli airstrikes on Gaza City, central Gaza Strip, Monday, October 16, 2023. Photo by the Associated Press, Abed Khaled.
“The scale of destruction in Gaza, the targeting of family homes and civilians, the war being a war on children, all make clear that genocidal intent is both understood and has been put into practice. The articulated intent is the destruction of Palestinian life,” said South African lawyer Tembeka Ngcukaitobi.
“The violence and the destruction in Palestine and Israel did not begin on October 7, 2023. The Palestinians have experienced systematic oppression and violence for the last 76 years,” argued South African Justice Minister Ronald Lamola.
South Africa didn’t just begin supporting Palestinians with the most recent conflict.
The African National Congress has compared Israel’s policies in Gaza and the West Bank to its own history under apartheid (institutionalized racial segregation by the all-white government of the non-white majority). In 1990, the late South African leader Nelson Mandela met with African leaders in Zambia who had supported his fight against apartheid. The late Palestinian leader Yasser Arafat embraced Mandela at that meeting.
Israel’s leadership continues to uphold their actions as justifiable self-defense.
“Israel’s commitment to international law is unwavering. 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,” responded Israeli Prime Minister Benjamin Netanyahu. “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 levelled against Israel is not only false, it’s outrageous, and decent people everywhere should reject it.”
Netanyahu says that Israel’s war is “against Hamas terrorists, not against Palestinian civilians.”
More than 26,000 Palestinians have been killed in Gaza during the 111 days of the Israel-Hamas war according to the Gaza Health Ministry. The total reported of those killed currently stands at 26,083 with 64,487 Palestinians wounded since October 7, 2023. Approximately 70 percent of those killed are women and children.
Collapsed building occupied by news media, the Associated Press and Al Jazeera following an Israeli airstrike in Gaza. Photo by Reuters, Mohamed Salem
As of January 8, CNN reported that one in 120 Palestinian children had been killed. The Palestinian Ministry of Health reported then that more than 5,300 of those killed were women and more than 9,000 were children.
According to an earlier CNN report, more children were killed in Gaza in one month than in any other conflict annually since 2019. As of November 6, 2023 at least 4,104 children had been killed.
Qatari news organization Al Jazeera published the name and age of many of the children reported killed here. Al Jazeera is owned and funded by the state of Qatar.
Violence has also risen in the West Bank. On January 19, 17-year-old Palestinian-American Tawfiq Ajaq was killed there.
The Associated Press reported, “Ajaq’s relative, Joe Abdel Qaki, said that Ajaq and a friend were having a barbecue in a village field when he was shot by Israeli fire, once in the head and once in the chest. . . Police said the incident would be investigated. Investigations of those involved in fatal shootings of Palestinians by Israel’s police and military have rarely yielded speedy results, and indictments are uncommon.”
The October 7 attack by Hamas on Israel, which precipitated the conflict in Gaza, was the deadliest terrorist attack against Israel since its establishment in 1948, and the worst massacre since the Nazi Holocaust that killed more than six million Jews.
According to the Center for Strategic and International Studies (CSIS), “The Israeli government’s most recent fatality estimate of 1,200 people killed in the October attack is more than 31 times as large as the number of people killed in the next most fatal attack—the Coastal Road Massacre of 1978, in which Fatah militants hijacked a bus and murdered 38 Israeli citizens.”
Full texts, summaries, and press releases related to South Africa’s case against Israel in the World Court are available online in French and English.
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