The World Court rescues international law from the Gaza rubble

In a speech on Dec. 4, 1997, commemorating the International Day of Solidarity With the Palestinian People, Nelson Mandela celebrated the end of apartheid in South Africa and assured his audience that he and his fellow South Africans “know too well that our freedom is incomplete without the freedom of the Palestinians.”

Twenty-six years later, on Dec. 29, 2023, South Africa lodged a case in the International Court of Justice alleging that Israel’s military operations and collective punishment of the entire civilian population in Gaza — in response to the Oct. 7 Hamas attack against Israel — are genocidal in character and intent.

Two weeks later, on Jan. 26, 2024, the court ordered Israel to stop killing Palestinians in Gaza after finding that South Africa’s allegations of acts of genocide by Israel and the need to protect the rights of the Palestinians “plausible.” The court will hear the full merits of the case in due course. As a final judgment could take several years, however, the court ordered provisional measures to prevent further harm now. The Genocide Convention does have two pillars, after all: to prevent not just to punish the crime of genocide.

In the ruling against Israel and other recent rulings against Russia and Myanmar, the ICJ has restored faith in the applicability of international law, demonstrated its integrity and impartiality in upholding the law and confirmed that no state is above the law.

In this case, the ICJ reminds the world that the crimes of one party do not excuse the crimes of the other party and that the actuality, even the plausibility of the crime of genocide — the gravest form of collective punishment — should never cease to shock the conscience of mankind.

Far from being “meritless,” as claimed by a United States government spokesperson, the ICJ concluded that “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 Genocide Convention” to which both Israel and South Africa are states parties. The court concluded “prima facie” that it has jurisdiction and rejected the Israeli request to dismiss the case.

In a public reading of the ruling, the ICJ president, also an American, began by recalling the Oct. 7 attack on Israel, in which 1,200 Israelis and others were killed and 240 hostages taken, as well as the large-scale military operation launched by Israel in retaliation, in which 25,700 Palestinians have been killed so far, 63,000 injured and 1.7 of 2.2 million displaced.

In assessing the plausibility of the genocidal nature of Israel’s action and intention, the court cited statements by several senior UN officials, including the UN secretary-general to establish the devastating consequences of Israel’s military campaign, its catastrophic impact on the entire civilian population of Gaza, the huge toll on Palestinian children, the collapse of the humanitarian system and the mass death anticipated from impending famine and disease.

The court also referred to statements by senior Israeli leaders, including the president of Israel claiming that there are “no uninvolved civilians” in Gaza and holding “the entire nation” responsible for the Hamas attack. It also cited dehumanizing statements by the Israeli minister of defense referring to fighting “human animals” and ordering a “complete siege of Gaza” with “no electricity, no food, no fuel.”

The court concluded that the 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.” It therefore upheld South Africa’s right to bring the case as well as “the right of Palestinians in the Gaza Strip to be protected from acts of genocide and related prohibited acts.”

Citing the extreme vulnerability of Gaza’s civilian population and the prime minister of Israel’s statements that the war will take many more months, the ICJ noted the urgency of the situation, finding that “there is a real and imminent risk that irreparable prejudice will be caused.” Accordingly, the court, by an overwhelming majority of 15 judges, ordered the state of Israel to take all measures “within its power” to prevent acts of genocide, including the following six provisional measures:

• To prevent the commission of all prohibited acts within the scope of the Genocide Convention, including killing and causing serious bodily or mental harm to the Palestinians in Gaza as well as deliberate inflicting of conditions of life calculated to bring about the physical destruction of the group in whole or in part and imposing measures intended to prevent births;

• To ensure with immediate effect that its military does not commit any acts described above;

• To take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip;

• To take immediate, 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;

• To take effective measures to prevent the destruction and ensure the preservation of evidence related to the alleged acts; and

• To submit a report to the court on all measures taken to give effect to its order within one month.

Finally, the court emphasized that all parties to the conflict in Gaza are bound by international humanitarian law and called for the immediate, unconditional release of the hostages abducted by Hamas and other armed groups. It also confirmed that its orders to Israel “have binding effect and thus create international legal obligations.”

Of the 15 judges of the court, who are elected by the Security Council and the General Assembly, only one voted against the provisional measures: the judge from Uganda. The ad hoc judge designated by South Africa voted with the overwhelming majority on all counts. Even the ad hoc judge designated by Israel voted with the majority on two of the six provisional measures: the one relating to incitement to commit genocide and the one regarding the provision of humanitarian assistance.

While exercising its prerogative to adopt its own formulation of the provisional measures, the court largely acceded to South Africa’s request for a range of provisional measures with one major exception. While the court refrained from calling upon Israel “to suspend its military operations in Gaza,” as requested by South Africa, it unequivocally ordered Israel to stop killing and deliberately harming civilians, effectively ordering Israel to completely change the nature, scope and scale of its military operations in densely populated Gaza.

Israel cannot comply with the world court’s order, as it is legally obliged to do, without ending its indiscriminate and relentless bombardment of Gaza and allowing much-needed humanitarian aid to reach millions of starving men, women and children. Even if Israel’s leaders ignore the court’s orders, as the leaders of Russia and Myanmar have done, Israel’s allies should reconsider their unconditional military, financial and diplomatic support. Unless they are willing to aid and abet what the world court has deemed to be plausible acts of genocide, the United States and the United Kingdom may wish to heed the ruling and orders of the UN’s highest judicial organ.

For all of us who seek peace, justice, security and equal human rights for the people of Palestine and the people of Israel, the ICJ ruling of Jan. 26 resurrects international law from the rubble of Gaza. The order for provisional measures ends decades of Israel’s impunity for its many crimes against Palestine and Palestinians. The court has answered the alarm sounded by Mandela’s beloved country. Its ruling answers the call of the millions of Jews, Christians and Muslims worldwide who are marching and chanting that “Never Again” means never again for anyone — a profound reminder for everyone on Jan. 27 — Holocaust Remembrance Day.

Mona Ali Khalil