ICJ Issues Landmark Ruling on Genocide in the Gaza Strip

International Court of Justice Sets Binding Measures Against Israel

The International Court of Justice (ICJ) serves as the primary judicial organ within the framework of the United Nations (UN). Its focus lies not in the pursuit of individual criminal accountability but rather in the adjudication of legal disputes brought forth by states. These disputes may encompass matters concerning the interpretation, application, or fulfilment of international agreements such as the Genocide Convention, as well as the attribution of responsibility to a state for acts of genocide.

In a significant development, the ICJ issued its Order on the request for the indication of provisional measures submitted by South Africa in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).

This article provides a concise overview of the key points from the ICJ's ruling.

ICJ President Joan Donoghue (C) speaks at the International Court of Justice (ICJ), Image by: Amnesty International

Background:

On 29 December 2023, South Africa initiated proceedings against Israel, alleging violations of the Genocide Convention in relation to Palestinians in the Gaza Strip. The ICJ, in response, held public hearings on 11 and 12 January 2024.

ICJ's Decision:

Whilst the final question of Genocide will take a number of years to determine, the court, with binding effect, temporarily indicated several provisional measures to address the concerns raised by South Africa. The key measures include:

1. Prevention of Genocidal Acts: The ICJ, by a majority vote, called on Israel to take all necessary measures to prevent acts falling under the scope of the Genocide Convention, such as killing, causing harm, inflicting conditions of life to bring about physical destruction, and imposing measures to prevent births within the Palestinian group in Gaza.

2. Military Restraint: The Court further mandated that Israel ensures its military refrains from committing any acts described in the first measure.

3. Incitement to Genocide: Israel is instructed to prevent and punish direct and public incitement to commit genocide in relation to members of the Palestinian group in Gaza.

4. Humanitarian Assistance: The ruling also requires Israel to take immediate and effective measures to provide urgently needed basic services and humanitarian assistance to address adverse conditions faced by Palestinians in the Gaza Strip.

5. Preservation of Evidence: Israel must take effective measures to prevent the destruction and ensure the preservation of evidence related to alleged acts within the scope of the Genocide Convention.

6. Reporting Requirement: Israel is directed to submit a report to the ICJ on all measures taken to give effect to the Order within one month.

While the Court did not explicitly mandate a ceasefire, the South African Minister of International Relations, Naledi Pandor, contends that a cessation of hostilities is imperative to align with the essence of the Court's order. Minister Pandor underscores the significance of proactively undertaking measures to prevent further harm to the rights of the Palestinian people, echoing the broader goals envisaged by the Genocide Convention.

Furthermore, pursuant to the ICJ's directive, South Africa possesses the authority to review Israel's compliance by examining the report submitted by the State within the stipulated one-month timeframe. This provision allows South Africa to assess the effectiveness of Israel's efforts in implementing the prescribed measures and provides an avenue for constructive commentary on the extent to which the Court's orders are being adhered to. Such oversight underscores the accountability inherent in the international legal framework and reaffirms the role of states in ensuring the enforcement of judgments for the collective good.

How enforceable is this ruling?

According to Article 94 of the UN Charter, the judgments rendered by the ICJ hold binding authority over the parties involved in the dispute. In instances where the judgments are not effectively implemented, recourse is stipulated to be sought through the UN Security Council. The Security Council is empowered to either provide recommendations or determine and implement measures aimed at ensuring the execution of the ICJ's judgment. This interplay between the ICJ's adjudicative function and the oversight role of the Security Council underscores the hierarchical structure established within the UN framework to uphold the principles of international law.

It is imperative to acknowledge, however, that the effectiveness of this process is subject to the dynamics within the Security Council. The ability of certain veto-wielding members, notably the United States, to exercise their veto power can impact the Council's capacity to take decisive actions. In instances where political and economic affiliations, particularly with Israel, come into play, the veto power may be employed to shield allies from the consequences of ICJ judgments.

This raises concerns about the potential hindrance to the enforcement of international law when geopolitical considerations interfere with the pursuit of justice. The issue of veto abuse, particularly in cases related to Israel, poses a challenge to the ideal functioning of the ICJ and the broader framework of international legal order. Addressing such challenges is crucial for maintaining the integrity and effectiveness of international legal mechanisms in promoting justice and upholding the principles enshrined in international law.

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This ICJ ruling marks a significant step in addressing the alleged violations of the Genocide Convention in the Gaza Strip. The detailed measures outlined aim to prevent further harm and ensure compliance with international obligations. The international community will closely watch how Israel responds to the Court's directives.