In January, the International Court of Justice (ICJ) ordered Israel to take all measures within its power to prevent death, destruction and any acts of genocide against Palestinians in Gaza. The order came after South African justice minister Ronald Lamola led a top legal team to argue South Africa’s case against Israel earlier that month. Subsequently, the ICJ was criticised for not explicitly demanding an immediate ceasefire. Prof. Narnia Bohler-Muller, an international and human rights law expert at the HSRC, discusses the findings.

In January, a top legal team for South Africa argued a case against Israel at the International Court of Justice (ICJ) in the Netherlands. The experts argued that Israel’s indiscriminate retaliatory bombing and siege of Gaza contravenes the United Nations Genocide Convention. A few weeks later, the ICJ ordered Israel to take all measures within its power to prevent death, destruction and any acts of genocide against Palestinians in Gaza.

Advocates Max du Plessis, Adila Hassim and Tembeka Ngcukaitobi, and Professor John Dugard presented such a compelling case that, on almost all counts, 15 of the 17 judges were convinced of their legal, technical and ethical arguments. Despite this, many criticised the fact that the ICJ did not demand an immediate ceasefire from Israel.

In this piece, I consider each finding of the ICJ and then argue that it was not necessary for the Court to declare for an immediate ceasefire, as the overall finding amounted to the same thing.

Jurisdiction

The ICJ was established in 1945 under the UN Charter in response to the genocide committed by Germany during WW2. The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by states and give advisory opinions on legal questions referred to it by authorised UN organs and specialised agencies.

It is important to keep in mind that South Africa did not have an evidentiary burden to prove that Israel was committing genocide. The Court merely needed to consider if plausible rights were being abused and if a potential for genocide existed. South Africa proved this prima facie (on the face of it).

In this historic ruling, the ICJ confirmed that it had jurisdiction to rule in the case filed by South Africa, requesting interim measures to save lives in Gaza. Jurisdiction refers to the fact that South Africa proved that a dispute did indeed exist between South Africa and Israel – as expressed, inter alia, in the UN General Assembly and UN Security Council.

ICJ orders six measures

The interim ruling issued by the Court ordered six provisional measures, including:

1. Israel must take all measures to prevent genocidal acts, as contained in Articles II and III of the Convention on the Prevention and Punishment of the Crime of Genocide.

• Article II

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 

a) Killing members of the group; 

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; 

d) Imposing measures intended to prevent births within the group; 

e) Forcibly transferring children of the group to another group. 

• Article III 

The following acts shall be punishable: 

a) Genocide; 

b) Conspiracy to commit genocide; 

c) Direct and public incitement to commit genocide; 

d) Attempt to commit genocide; 

e) Complicity in genocide. 

2. Israel must prevent and punish the direct and public incitement to genocide. The Court stated the following about previous utterances by high-level Israeli officials:

• “In this regard, the Court has taken note of a number of statements made by senior Israeli officials. It calls attention, in particular, to the following examples: statements made by Mr Yoav Gallant, Defence Minister of Israel, on 9 and 10 October 2023, by Mr Isaac Herzog, President of Israel, on 12 October 2023, and by Mr Israel Katz, then Minister of Energy and Infrastructure of Israel, on 13 October 2023. The Court also takes note of a press release of 16 November 2023, in which 37 Special Rapporteurs, Independent Experts and members of Working Groups part of the Special Procedures of the United Nations Human Rights Council voiced alarm over ‘discernibly genocidal and dehumanising rhetoric coming from senior Israeli government officials’. Concerns were also expressed on 27 October 2023 by the United Nations Committee on the Elimination of Racial Discrimination about ‘the sharp increase in racist hate speech and dehumanization directed at Palestinians since 7 October’.”

3. Israel must take immediate and effective steps to ensure the provision of humanitarian assistance to civilians in Gaza. The Court recalled that:

“At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating. The World Health Organization has estimated that 15 per cent of the women giving birth in the Gaza Strip are likely to experience complications, and indicates that maternal and newborn death rates are expected to increase due to the lack of access to medical care. In these circumstances, the Court considers that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment.”

4. Israel must preserve evidence of genocide for purposes of a future investigation if deemed necessary.

5. Israel must submit a report to the Court within a month of the date of the order regarding its compliance with the order.

6. Hamas was ordered to release all remaining Israeli hostages “immediately and unconditionally”.

Thus, the order of the Court on 26 January 2024 indicated various “provisional measures” that, when added together, can be interpreted as a “ceasefire”. The ICJ cannot make a unilateral order for a ceasefire as most credible dictionaries define ceasefire as a mutual agreement for a cessation of hostilities; truce; or a military order issued for a ceasefire.

In its ruling, the Court referred to the mass killing, maiming and displacement of the “extremely vulnerable” population of Palestinians in Gaza, as well as its destruction of vital infrastructure, including homes, schools and medical facilities, and the “catastrophic” humanitarian situation, necessitating urgent action. The Court also took express note of various statements by senior Israeli officials, including the President of Israel, using dehumanising language towards Palestinians.

The ruling, read out by the President of the Court, was decided by an overwhelming majority. Judge Julia Sebutinde of Uganda found against South Africa on all measures, as she considered the matter to be of a “political” and not legal nature, and not suitable for the Court. Ad hoc Judge Aharon Barak (Israel) found against South Africa in relation to four of the six measures. The ICJ’s order – which compels Israel to take comprehensive and urgent measures to remedy the “catastrophic” situation it has brought about in Gaza – is binding on Israel. Its ruling also has implications for third-party states that fund or otherwise facilitate Israel’s actions in Gaza that have been determined to be plausibly genocidal.

The Secretary General of the United Nations has stated that all member states should comply with the findings of the Court. It is disturbing that since the order of the Court, it has been extensively reported that civilians in Gaza are still suffering and dying at the hands of the Israeli military. This amounts to breaching the order of the ICJ.

Israel must report compliance with the above measures by 26 February 2024.

Read more: South Africa’s legal team in the genocide case against Israel has won praise. Who are they? – The Conversation, 12 January 2024

Author:

Prof. Narnia Bohler-Muller, executive head of the HSRC’s Developmental, Capable and Ethical State research division