What does historic ICJ ruling in Israel Gaza genocide case mandate?

Mohamed Badereldin, Saturday 27 Jan 2024

The historic ruling recently issued by the International Court of Justice (ICJ) in the case brought by South Africa accusing Israel of committing genocide in Gaza mandates Israel carry out several concrete actions to ensure its compliance with the Genocide Convention.

World Court
Pro-Palestinian activists gather near the International Court of Justice, or World Court, in The Hague, Netherlands, Friday, Jan. 26, 2024. AP


Immediately after the court announced its ruling on Friday, many who have opposed the Israeli military campaign that has killed and injured tens of thousands of Palestinians in Gaza and reduced much of the strip to rubble debated its significance across social media platforms.

Some argued the ICJ's interim decisions are only symbolic because the court does not have the means to force Israel to stop its war on the Palestinians.

Immediately after the ruling, Algeria called for the United Nations Security Council (UNSC) to meet next week over the decision by the global body's top court.

The Algerian Ministry of Foreign Affairs said it would give "binding effect to the pronouncement of the International Court of Justice on the provisional measures imposed on the Israeli occupation."

Others saw them as a reflection of a transformative shift in international public opinion and how some international organizations could deal with Israeli crimes against humanity.

Indeed, the International Criminal Court (ICC), another top international court that prosecutes cases against individuals accused of committing crimes against humanity, has failed to listen to or investigate various cases filed against Israeli military leaders and politicians accusing them of crimes against the Palestinian people.

However, some questioned the practical impact of the directives, especially considering that the interim decisions stopped short of demanding a ceasefire as many supporters of the Palestinian cause had hoped for.

Some supporters of the Palestinian cause argued that these directives could be a basis for a long overdue process of making the Israeli state answer for its actions against civilians. 

The social media platform X hosted such a discourse under the trending #ICJGenocideConvention.

Some social media users stated directly "International Criminal Court has failed ALL Palestinians!" while still others commented on the judges of the ICJ who voted in favor of the interim decisions "Well done to these heroes!!"

But what obligations does the ruling impose on Israel?

The ICJ's provisional directives

The court's binding order included several provisional directives aimed at preventing further harm to the Palestinian population and ensuring Israel's compliance with the Genocide Convention.

The ICJ requires Israel to submit a report to the court showing substantive concrete action taken to realize the dictated interim decisions within a month.

Prevention of genocidal acts

The ICJ directive requires Israel to take all necessary measures to prevent acts falling within the scope of Article II of the Genocide Convention.

The provision of Article II defines acts of genocide as killing members of a particular group, causing serious bodily or mental harm to members of the group, deliberately inflicting 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.

This directive aims to prevent any further genocidal acts from occurring in the Gaza Strip. It places an obligation on Israel to actively take preventive measures to ensure the safety and well-being of the Palestinian population.

Military restraint

The ICJ ordered Israel to ensure that its military refrains from committing any acts described in the previous directive. This provision emphasizes the importance of immediate compliance and restraint on the part of the Israeli military.

By specifically addressing the military, the ICJ aims to prevent any harmful actions that could be perpetrated by the military forces against the Palestinian population. This directive highlights the need for Israel to exercise restraint and avoid engaging in acts that could lead to further harm or potential genocidal acts.

The court noted the severe destruction in the Gaza Strip that has occurred as a direct result of  the Israeli campaign in Gaza stating that the Israeli military operation "caused massive civilian casualties, extensive destruction of civilian infrastructure, and the displacement of the overwhelming majority of the population in Gaza."

Prevention of incitement to genocide

In this provision, Israel is directed to take effective measures to prevent and punish direct and public incitement to commit genocide against Palestinians in the Gaza Strip.

The ICJ recognizes that incitement plays a significant role in promoting violence and potential genocidal acts. By addressing this issue, the directive aims to curb any rhetoric or actions that could contribute to the perpetration of genocide. Israel is expected to actively prevent and penalize any instances of direct and public incitement to commit genocide.

The court recognized the genocidal language used by some Israeli officials and took note of it, concluding that "the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible."

Provision of urgent assistance

The ICJ ordered Israel to take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions faced by Palestinians in the Gaza Strip.

This provision recognizes the dire situation in Gaza, where the population faces subhuman standards of living as a result of Israeli aggression. The directive emphasizes the urgency of addressing the immediate needs of the population, including access to basic services such as healthcare, food, water, and shelter.

Israel is expected to facilitate the delivery of humanitarian aid and support efforts to improve the living conditions of the affected population.

The court took note of the results of the Israeli seige of Gaza and exclusion of aid, stating: "At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating."

Preservation of evidence

Israel is mandated to take effective measures to prevent the destruction of evidence related to allegations of acts within the scope of the Genocide Convention against members of the Palestinian group in Gaza.

Preserving evidence is crucial for conducting thorough investigations and ensuring accountability for any potential violations of the Genocide Convention.

This provision highlights the importance of safeguarding evidence that may be relevant to allegations of genocidal acts.

By preserving evidence, Israel is expected to facilitate a transparent and comprehensive examination of the situation, which may contribute to establishing the truth and ensuring justice.

The ICJ's approach

The court's primary concern lies in protecting and preventing further harm and addressing the alleged violations of the Genocide Convention.

The provisional directives emphasize the obligations of Israel under the Genocide Convention and serve as a warning to comply with international law, rather than imposing punitive measures on the accused party.

By calling for immediate action, the ICJ highlighted the urgency of the situation and the need for Israel to take concrete steps to prevent potential genocidal acts and preserve the rights of the Palestinian people.

The ICJ's approach aligns with its mandate as the principal judicial organ of the United Nations, which is to settle legal disputes and provide advisory opinions based on international law.

Furthermore, the ICJ's emphasis on preserving evidence and reporting back to the court within a designated timeframe reflects its commitment to a fair and transparent process. By demanding accountability and transparency from Israel, the court seeks to address the allegations comprehensively.

On 29 December 2023, South Africa filed a case with the ICJ accusing Israel of violating its obligations under the Genocide Convention in relation to the Palestinian population in the Gaza Strip.

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