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ICJ orders Israel to prevent genocide in Gaza, declines to order ceasefire

The International Court of Justice (ICJ) ordered Israel on Friday to “take all measures within its power” to prevent breaches of the Genocide Convention in the Gaza Strip, but declined to order a ceasefire in the Israel-Hamas War. The order followed proceedings initiated by South Africa and issued a number of provisional measures. This is not the court’s final ruling on the case.

The order’s provisional measures called for Israel to: punish calls for genocide against Palestinians in Gaza, enable the provision of “basic services and humanitarian assistance” to residents of Gaza, preserve evidence relating to potential Genocide Convention breaches and submit a report regarding its compliance with the court’s order within one month.

There are four requirements for the ICJ to issue provisional measures: jurisdiction, standing, the plausible existence of the rights sought to be protected and the urgency of irreparable harm. The court determined they have jurisdiction over the case because South Africa and Israel are both party to the Genocide Convention and there is a clear dispute in their interpretations of Israel’s treaty obligations. It ruled that South Africa has standing to bring the case, even though it is not directly involved, because preventing genocide is in the “common interest.” Because both jurisdiction and standing were present, the court declined Israel’s request to remove the case from its docket.

Article II of the Genocide Convention defines genocide as any acts committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” These acts can include:

(a) Killing 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 whole or in part;

(d) Imposing measures intended to prevent births within the group; or

(e) Forcibly transferring children of the group to another group.

Article III also prohibits conspiracy to commit genocide, incitement to commit genocide, attempt to commit genocide and complicity in genocide. The court emphasized that it doesn’t need to make a final determination on the existence of rights or violations to issue provisional measures, but rather the plausibility of these rights. It ruled that Palestinians in Gaza are protected by the Genocide Convention because Palestinians are a distinct ethnic group and the people living in Gaza form a substantial part of that group. Statements from UN officials highlighting the dire situation in Gaza, combined with inflammatory statements from Israeli officials, led the court to conclude that “at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.”

Specifically, the court cited Defense Minister Yoav Gallant’s comment that Israel is “fighting human animals;” President Isaac Herzog’s statement that “it is an entire nation out there that is responsible;” and Minister of Energy and Infrastructure Israel Katz’s statement on X (formerly twitter) saying, “We will fight the terrorist organization Hamas and destroy it. All the civilian population in [G]aza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.”

On the question of urgency, Israel claimed that it was taking concrete measures to ensure the rights of Palestinians in Gaza, pointing to its involvement in the reopening of bakeries with a capacity of baking 2 million loaves of bread per day, the delivery of water and water infrastructure repairs. South Africa contended that any scaling up of humanitarian assistance “would be no answer to its request for provisional measures.” The court determined that the dire situation in Gaza–which has killed more than 25,000 people, displaced 1.7 million people and decimated the territory’s medical system–constitutes an urgent risk of irreparable harm. Therefore, the court ruled that its provisional measures were justified and necessary.

South Africa brought the case against Israel, saying that Israel’s actions in Gaza amount to genocide, and asked the court for provisional measures to prevent the commission of genocide, including a ceasefire. Though the court did not demand a ceasefire, South Africa celebrated the decision. The country’s Department of International Relations and Cooperation said in a press release that, “today marks a decisive victory for the international rule of law and a significant milestone in the search for justice for the Palestinian people.” Palestine’s Ministry of Foreign Affairs and Expatriates also hailed the order, saying, “The ICJ order is an important reminder that no state is above the law. It should serve as a wake-up call for Israel and actors who enabled its entrenched impunity.” Palestine also emphasized that the order is legally binding.

Israel has rejected accusations of genocide, saying it is acting in self-defense. The court also condemned Hamas’s October 7 attacks and called for the release of hostages. Prime Minister Benjamin Netanyahu responded to the order by saying Israel is committed to international law, but also committed to self-defense:

On October 7th, Hamas perpetrated the most horrific atrocities against the Jewish people since the Holocaust, and it vows to repeat these atrocities again and again and again. Our war is against Hamas terrorists, not against Palestinian civilians. We will continue to facilitate humanitarian assistance, and to do our utmost to keep civilians out of harm’s way, even as Hamas uses civilians as human shields. We will continue to do what is necessary to defend our country and defend our people.

The US, Israel’s biggest supporter, has not yet published a response to the ruling and is facing calls to respect the decision. Nancy Okail, President and CEO of the Center for International Policy (CIP), said on X (formerly Twitter), “A true world leader defends the values of humanity, not rhetorically, but through action. Today, it was not the U. S., that stood for these ideals. The U.S. must reckon with this reality & realign its support to reflect the principles of justice & international law.” CIP Executive Vice President Matt Duss said the same in a statement provided to JURIST, stressing:

If we support the creation of a global community based on shared rules rather than simply might makes right, it is absolutely essential that all countries, including the United States, acknowledge the legitimacy of this ruling and take necessary steps in response.

Article: ICJ orders Israel to prevent genocide in Gaza, declines to order ceasefire

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