On Friday, 26 January, the International Court of Justice (ICJ) issued its ruling in the case brought almost a month earlier by South Africa requesting the application of the Convention on the Prevention of the Crime of Genocide in Gaza.
The court ordered Israel to prevent acts of genocide against Palestinians in Gaza, as one of six provisional measures. The ICJ also ordered Israel to prevent and punish direct and public incitement to commit genocide, to preserve evidence, and to submit a report to the court within one month.
With 16 votes against one, the ICJ also requested Israel to take immediate and effective measures to ensure the provision of humanitarian assistance for civilians in Gaza. However, the ICJ fell short of issuing a provisional measure to order an immediate ceasefire, as requested by South Africa.
The ICJ ordered the immediate release of Israeli hostages that were taken by Hamas on 7 October.
While criticized for failing to order an immediate ceasefire – irrespective of the lack of an enforcement mechanism for its ruling – the ICJ ruling was praised by South Africa, Palestinian officials, and several capitals including Cairo.
Israeli Prime Minister Benyamin Netanyahu was quick to shrug off the court order and promise continued warfare.
According to Maha Abdallah, a senior researcher of international law, “Israel does not care about international law.”
However, Abdallah noted that the South African case against Israel perpetrating “the crime of all crimes: genocide” in Gaza is a significant milestone. It should be viewed alongside other proceedings at the court relevant to Palestine.
Currently, the ICJ is also considering a request for an advisory opinion that was referred by the UN General Assembly on Israel’s ongoing violation of the Palestinian people’s right to self-determination, the illegality of prolonged occupation, and associated legal consequences on Israel and all states, among others.
The public hearings will kick off on 19 February. “After 75 years of colonization, the court is yet to determine the 57-year military occupation illegal. Nonetheless, Palestinians have to pursue all available mechanisms in the pursuit of justice and rights,” she said.
The advisory opinion expected of the ICJ on the legal qualification of the Israeli military occupation of Palestinian territories is similar to another opinion it issued back in 2004 when it stated that the construction of the separation wall by Israel “the occupying power” and its associated regime are contrary to international law.
Back then, the ICJ concluded, 14 votes to one, that “Israel is under obligation to terminate its breaches of international law.” ICJ advisory opinions are not binding in nature as opposed to the court’s judgments or decisions in cases such as the one brought against Israel by South Africa invoking the Genocide Convention.
Twenty years later, last Friday, the court ordered Israel to take immediate measures to stop acts of genocide in Gaza. Israel is likely to soon be found in violation of international law due to its illegal occupation, settlements, annexation, and institutional discrimination in the forthcoming advisory opinion.
While not expecting Israel to act upon the provisional measures already ordered by the court or the upcoming advisory opinion, Abdallah is still of the opinion that such decision and opinion issued by the highest judicial body of the United Nations “will still have ramifications, not just for Israel but also for states providing financial and material support and those who have been shielding it from accountability for decades.”
Moreover, according to Abdallah, it is especially hard for states supporting Israel to discard the legal consequences of the ICJ provisional measures issued on Friday, with regards to the accusations of genocide in Gaza.
“All states have legal obligations to ensure the implementation of the provisional measures ordered by the court, to prevent and stop genocide, and to ensure they are complicit in genocide or other unlawful egregious acts,” she said.
After all, Abdallah argued that it would be naïve to expect Palestinians to get all the justice they deserve through the international legal system – simply because “this legal system is inherently colonial.”
Abdallah said that it is necessary to strive to dismantle the colonial nature and selective application of the international legal system. She referred to the stark discrepancy in positions concerning the Russia-Ukraine war versus Israel-Palestine especially among Western governments.
Still, Abdallah remains of the opinion that Palestinians should not turn their back on the legal path as another tool. This is also given the repeated failures of the political path, especially that of the three-decade-old Oslo Accords trajectory that has dramatically failed to grant Palestinians their basic rights and instead further entrenched the colonization.
According to Abdallah, through legal instruments, the world can see much of the documented details, including the widespread and systematic killing of Palestinians, mass incarceration, forcible displacement, and transfer, among other means and methods of Israel’s colonization. The case of Palestine, she argued, is exposing the double standards of the international legal system and Western powers who instrumentalize international law to maintain domination one way or another.
The way forward, she said, is to de-colonize international law and its instruments. This, she added, is not something that happens overnight. Ultimately, she added, the fact that South Africa came before the ICJ on behalf of the Palestinian people shows that there are countries in the global south that are willing and able to stand up in the face of Western hypocrisy and manipulation to achieve justice and rights.
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