ICJ Accepts South African Case Of Genocide, Puts Israel On Notice

The International Court of Justice’s (ICJ) Interim Ruling on South Africa vs Israel Genocide Case and appeal for emergency provisional measures to stop genocide against Palestinians in Gaza is more than a partial victory for Palestinians in Gaza, a blow to Israel, a message to the US, UK and others, a vindication for South Africa and impetus for the global majority to continue their solidarity for Palestine. For the first time in its history there is a crack for Palestine from where the light can come in.

Although the United States State Department and Israel of course brushed off the provisional ruling, the first by its usual evasion and the second by outright rejection, there is no doubt that both Washington and Tel Aviv are now established conspirators in what the ICJ has accepted as possible genocide, pending the final verdict.

South Africa immediately responded to the ruling, and increased the pressure on the countries supporting Israel - the shortest list which includes the UK and Germany– to re-think their stance. The South African President in a broadcast made it clear that “never never” will his country allow genocide to be perpetrated in this land, words echoing similar sentiments expressed by his Foreign Minister at The Hague immediately after the ICJ’s ruling. In this majority judgment, of the 17 judges only two dissented on the ruling, one the Israeli nominee and the other surprisingly Ugandan. Uganda, reports reveal, distanced itself from the position taken by her.

While there is some disappointment in sections who wanted to hear the word ‘ceasefire’ experts who have been following, and commenting regularly on the bloodbath in Gaza see it as a major victory.

The ICJ ruled that this Case does fall under the jurisdiction of this Court, rejecting Israel’s arguments to the contrary. This itself shows that the ICJ recognizes that the charges and evidence submitted on genocide being committed on the Palestine ethnic group are indeed plausible. That the ICJ believes it is necessary to investigate and examine these charges in detail. This Case is now admitted and Israel will be subject to juridical scrutiny on a constant basis. The Case procedure will take the ICJ years to adjudicate, but the indictment on genocidal intent by Israel is crystal clear.

The ICJ admitted South Africa’s right to be party to this Case, rejecting Israel’s contention that South Africa and Israel were not at conflict. With this ruling South Africa remains the legal respondent to the Case. This vindicates South Africa’s commitment against global apartheid and sets a precedent for future cases on genocide.

South Africa made a case for emergency and binding provisional measures to order Israel to immediately stop every kind of military operation and measure i.e. ceasefire; protect the Palestinian people be put in place; that Israel desist doing anything under Article II (killing, harming, displacing, evicting, stopping medical access especially to child bearing women); prevent the expulsion and displacement of Palestinian people, provide and assist humanitarian measures; prevent starvation, epidemics; provide medical assistance; give access to aid deliveries and human rights groups for fact finding missions. They also requested that the ICJ direct Israel to report the implementation of all these measures to the ICJ on a weekly basis.

The ICJ admitted that there is urgency of real and imminent risk to the rights of Palestinians in Gaza and therefore there is a need for provisional measures. So ICJ recommends: that Israel must take measures to prevent genocidal actions; ensure its forces do not commit genocidal actions; punish incitement to genocide; provide access to essential aid. These provisional measures are in tune with South Africa’s appeal under Article II of the Genocide Convention.

Further, the ICJ has ordered that Israel must preserve evidence of its actions; and must provide a report of its actions, within one month of the ruling and South Africa will comment on this report.

This ICJ decision “has binding effect and thus creates international legal obligation” for any party to whom the provisional measure is addressed. (ICJ, 26/01/2024)

It is disappointing that the ICJ has not ordered a ceasefire. But it is well known that this Court has its limitations. But the ICJ has accepted all of South African arguments on ethnic cleansing and genocidal intent as plausible. The ICJ by ordering that Israel must protect Palestinian civilians from harm, in effect binds Israel’s military arms behind its back; lifts the protective covers awarded to Israel; removes forever Israel’s patent of permanent victimhood; curbs the impunity Israel enjoyed; makes Israel culpable for its actions; indicts its supporters as complicit and therefore also culpable for an international crime; puts an indelible stain on genocidal acts by Israel or any other state.

Of course, Israel and its supporters are known violators of international law and UN Resolutions, when found unsuitable for their regime interests. There is no reason that Israel or its partners in crime will accept this. Or that the US, UK, Germany will stop providing bombs and shells to kill wantonly. But these brazen acts have consequences and reactions and moreover the world is watching and recording.

It is now for global solidarity to continue to push for this case as they have done over the past 100 days. For this the Global South that demonstrated solidarity with Palestine and South Africa, and mass mobilization on streets in cities from the US, UK, EU, Asia, Africa and everywhere needs to show its support. The people of Palestine will continue to show resilience and collective bravery. Meanwhile, even though the ICJ showed its limits, did not cross the Rubicon of true justice, yet through this interim ruling has safeguarded the ICJ’s legitimacy and shown the world that there is the possibility of justice howsoever partial.

Anuradha Chenoy is Associate Fellow of the Transnational Institute and Adjunct Professor, Jindal Global University.

Cover Photograph Reuters