ICJ, South Africa and Palestine

On January 26 the International Court of Justice (ICJ) agreed to South Africa’s request to order Provisional Measures to be undertaken by Israel to prevent genocide in Gaza. This order came in the wake of the case instituted by South Africa against Israel for violating the ‘The Convention on the Prevention and Punishment of the Crime of Genocide’ (popularly called the Genocide Convention). South Africa asserted, in its application to the ICJ on December 29 last year, that Israeli actions in Gaza which were resulting in thousands of deaths and mass suffering of the people of Gaza were covered by the Genocide Convention. It asked the Court to hold that Israel was violating the Convention. It also sought Provisional Measures which would stop Israel from continuing with its actions. At the core of these measures was a demand that Israel orders its forces to ceasefire.

Israel denied the South African charges; the Court noted in paragraph 23 of its order, “Israel contends that South Africa has failed to demonstrate the prima facie jurisdiction of the Court under Article IX of the Genocide Convention”. Further, the Court stated that Israel “first argues that there is no dispute between the Parties because South Africa did not give Israel a reasonable opportunity to respond to the allegations of genocide before it filed its allegations”. On both these counts the ICJ held that it had jurisdiction to hear and adjudicate the case and also that a dispute existed between the two states which were parties to the Genocide Convention.

The ICJ would take a considerable period of time to decide if Israel is guilty of genocide. Hence, the real focus of the current proceedings was the South African request for the Court to order Provisional Measures. Naturally, before the ICJ can entertain such a request from a state party it has to satisfy itself that there is substance in the charges that the applicant state has brought before it. The standard by which it judges if there is ‘substance’ was clarified by the Court thus “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 be made by the Court only at the stage of the examination of the merits of the present case…at the stage for making an order on a request for an indication of provisional measures, the Courts task is to establish whether the acts or omissions complained off by the applicant appear to be falling within the provisions of the Genocide Convention”. On this issue the Court significantly held “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 falling within the provisions of the Convention”.

This finding is, in itself, embarrassing to Israel which has based its continuing action is Gaza as necessary to provide security to its people against an attack of the kind undertaken by Hamas on October 7 last year. Israel has asserted both publicly and did so in the Court as well that it was acting within the purview of international humanitarian law and taking all means to prevent collateral damage even though more than twenty-six thousand Gaza people have been killed so far and the UN agencies have declared—which the ICJ noted in its order—that the conditions in Gaza are catastrophic. It is noteworthy that the Court, noted the “immediate context” of the South African case when it stated “On October 7, 2023 Hamas and other armed groups present in the Gaza Strip carried out an attack on Israel, killing more than 1200 persons, injuring thousands, and abducting some 240 people, many of whom continue to be held hostage”. Significantly, the Court did not go into criticizing the attack but focused its attention to the South African charge that Israel’s response constituted a violation of the Genocide Convention. That Convention instructs that member-states will not kill or cause bodily harm or impose conditions which will destroy in whole or in part members of a group or prevent births in the group.

The ICJ ordered Israel, including its military to adhere to the Genocide Convention. Further, it directed that Israel would ensure that its officials or people will not give any incitement for a violation of the Convention and that it will take all measures to ensure the people of Gaza get access to humanitarian need. Finally, it asked Israel to report to the Court of the steps it had taken to implement its order. Importantly, the Court did not order Israel to stop its military operations in Gaza. Thus, in a sense while it found that there were prima facie grounds to examine South Africa’s charges against Israel it did not, without even mentioning it, put any stop to what Israel from continuing with its military operations. Thus, while the Court has embarrassed Israel all that it has really done by way of action is given it a gentle tap on its wrist.

It is noteworthy that no Islamic country approached the ICJ but it was South Africa which did so. This is because the two countries relations have always been uneasy and this is so especially regarding the Palestinian issue. Also, the action will give South Africa a profile in the Islamic and developing world which it obviously wants.

Finally, the ICJ ‘tap on the wrist’ decision is unlikely to deter Israel’s determination to root out Hamas.