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On International Court of Justice Ruling

The International Court of Justice (ICJ) on January 26 issued its ruling on South Africa's application to the court for provisional measures to stop Israel's war on Gaza, as part of its taking Israel to the ICJ under the Genocide Convention. ICJ President Joan Donoghue delivered the 29-page ruling. In it, the ICJ accepts jurisdiction under the Genocide Convention, which then permits it to apply provisional measures and undertake the case as a whole. It refused Israel's request to reject the case. However, the specific provisional measure sought by South Africa to stop Israel's genocidal war on Gaza was not granted, namely that "The State of Israel shall immediately suspend its military operations in and against Gaza."[1] A ceasefire is what the Palestinian people have been urgently calling for since October of last year, supported by all those taking action around the world in support of the Palestinians and their resistance to Israeli occupation and war crimes.

Donoghue began by reviewing the basis on which South Africa filed its case and Israel's rejection of the case against it. She went on to state:

"The court finds that the aforementioned elements are sufficient at this stage to establish prima facie, the existence of a dispute between the parties relating to the interpretation, application or fulfillment of the genocide convention.

[...]

"At the present stage of the proceedings, the court is not required to ascertain whether any violations of Israel's obligations under the Genocide Convention have occurred.

"Such a finding could only be made by the court at the stage of the examination of the merits of the present case.

"At the stage of making an order on the request for an indication of provisional measures, the court's task is to establish whether the acts and omissions complained of by the applicant appear to be capable of falling within the provisions of the Genocide Convention.

"In the court's view, at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza, appear to be capable of falling within the provisions of the convention.

"In light of the following, the court concludes that, prima facie, it has jurisdiction pursuant to article 9 of the convention to entertain the case.

"Given this conclusion, the court considers that it cannot accede to Israel's request that the case be removed from the general list."

Donoghue cited various UN officials and bodies responsible for the humanitarian conditions in Palestine giving dire assessments of the situation in Gaza, as well as quoting Israeli government officials trying to justify the onslaught in Gaza. "In the court's view, the aforementioned facts and circumstances are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible," she said.

Donoghue then turned to the matter of "the condition of the link between the plausible rights claimed by South Africa and the provisional measures requested.

"It considers that by their very nature, at least some of the provisional measures sought by South Africa are aimed at preserving the plausible rights it asserts on the basis of the genocide convention in the present case, namely the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts mentioned in Article 3 and the right of South Africa to seek Israel's compliance with the latter's obligations under the convention.

"Therefore, a link exists between the rights claimed by South Africa that the court has found to be plausible and at least some of the provisional measures requested.

"The court turns next to the question of risk of irreparable prejudice and urgency.

"It notes that, pursuant to Article 41 of its statute, it has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings or when the alleged disregard of such rights might entail irreparable consequences.

"However, the power of the court to indicate provisional measures will only be exercised if there is urgency in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the court gives its final decisions.

"The condition of urgency is met when the acts susceptible of causing irreparable prejudice can occur at any moment before the court makes the final decision in the case.

"The court must therefore consider whether such a risk exists at this stage of the proceedings.

"The court is not called upon for purposes of its decision on the request for the indication of provisional measures to establish the existence of breaches of obligations under the genocide convention, but to determine whether the circumstances require the indication of provisional measures for the protection of rights under that instrument."

Having laid out the threshold that must be met to apply provisional measures, Donoghue then goes on to cite various UN officials, including a letter from the Secretary General to the Security Council decrying the rapidly deteriorating situation in Gaza and urging it to act. Based on this, the ICJ concluded "that the conditions required by its statute for it to indicate provisional measures are met," however, "the Court finds that the measures indicated need not be identical to those requested.

"The Court considers that, with regard to the present situation, Israel must, in accordance with its obligations under the Genocide Convention, 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 the Convention in particular, A, killing groups 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 the whole or in part, and D, imposing measures intended to prevent births within the group.

"The Court recalls that these acts fall within the scope of Article II of the Convention when they are committed with the intent to destroy in the whole or in part the group as such.

"The Court further considers that Israel must ensure with immediate effect that its military forces do not commit any of the aforementioned acts.

"The Court is also of the view that Israel must take measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to the members of the Palestinian group in the Gaza Strip.

"The Court further considers that Israel must 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.

"Israel must also take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Genocide Convention against members of the Palestinian group in the Gaza Strip.

"Regarding the provisional measure requested by South Africa that Israel must submit a report to the Court on all measures taken to give effect to the order, the Court recalls that it has the power reflected in Article 78 of the Rules of Court to request the parties to provide information on any matter connected with the implementation of any provisional measures it has indicated.

"In view of the specific provisional measures it has decided to indicate the Court considers that Israel must submit a report to the Court on all measures taken to give effect to this order within one month as from the date of this order.

"The report so provided shall then be communicated to South Africa, which shall be given the opportunity to submit to the Court its comments thereon.

"The Court recalls that its orders on provisional measures under Article 41 of the statute have binding effect and thus create international legal obligations for any party to whom the provisional measures are addressed."

To view the full ICJ ruling, click here.

To view Judge Donoghue's speech, click here.

Note

1. The full list of provisional measures sought by South Africa is as follows:

(1) The State of Israel shall immediately suspend its military operations in and against Gaza.

(2) The State of Israel shall ensure that any military or irregular armed units which may be directed, supported or influenced by it, as well as any organisations and persons which may be subject to its control, direction or influence, take no steps in furtherance of the military operations referred to [in] point (1) above.

(3) The Republic of South Africa and the State of Israel shall each, in accordance with their obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people, take all reasonable measures within their power to prevent genocide.

(4) 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 the Palestinian people as a group protected by the Convention on the Prevention and Punishment of the Crime of Genocide, desist from the commission of any and all acts within the scope of Article II of the Convention, in particular:

(a) killing members of the group;

(b) causing serious bodily or mental harm to the 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; and

(d) imposing measures intended to prevent births within the group.

(5) The State of Israel shall, pursuant to point (4) (c) above, in relation to Palestinians, desist from, and take all measures within its power including the rescinding of relevant orders, of restrictions and/or of prohibitions to prevent:

(a) the expulsion and forced displacement from their homes;

(b) the deprivation of:

(i) access to adequate food and water;

(ii) access to humanitarian assistance, including access to adequate fuel,

shelter, clothes, hygiene and sanitation;

(iii) medical supplies and assistance; and

(6) The State of Israel shall, in relation to Palestinians, ensure that its military, as well as any irregular armed units or individuals which may be directed, supported or otherwise influenced by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in (4) and (5) above, or engage in direct and public incitement to commit genocide, conspiracy to commit genocide, attempt to commit genocide, or complicity in genocide, and insofar as they do engage therein, that steps are taken towards their punishment pursuant to Articles I, II, III and IV of the Convention on the Prevention and Punishment of the Crime of Genocide.

(7) The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide; to that end, the State of Israel shall not act to deny or otherwise restrict access by fact-finding missions, international mandates and other bodies to Gaza to assist in ensuring the preservation and retention of said evidence.

(8) The State of Israel shall submit a report to the Court on all measures taken to give effect to this Order within one week, as from the date of this Order, and thereafter at such regular intervals as the Court shall order, until a final decision on the case is rendered by the Court.

(9) The State of Israel shall refrain from any action and shall ensure that no action is taken which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

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