World Court’s legally-binding order to Israel is a historic first, but still has flaws
By Milan Rai. PN 2670 (February – March 2024)
Three Palestinian human rights groups issued a joint statement on 26 January welcoming the World Court’s decision to consider whether Israel’s war in Gaza is genocidal, and to order Israel to stop killing Palestinians in Gaza, among other measures.
Al-Haq (based in Ramallah, in the West Bank) and Al Mezan and the Palestinian Centre for Human Rights (both based in Gaza City, Gaza) described the decision of the International Court of Justice (ICJ, also known as ‘the World Court’) as ‘a historic landmark ruling’: ‘Drawing on the nature of Israel’s military action, and “dehumanising” statements by Israeli government officials, the Court found that Israel’s actions in Gaza are plausibly genocidal.’
The ICJ, the UN’s top legal body, did not order all of the ‘provisional measures’ South Africa had asked for, but it did call on Israel to ‘enable the provision of urgently needed basic services and humanitarian assistance’ to Palestinians in the Gaza Strip.
According to the three human rights groups: ‘The provisional measures order carries an implicit call to ceasefire, as clearly it cannot be carried out without a full cessation of hostilities. In particular, in light of the many UN statements that effective humanitarian aid [to people in Gaza] is only possible with a complete cessation of military action, the ICJ’s call in the same wording is in practice a call for this cessation.’
Limits to courage
This raises the question of why the court did not simply order an Israeli ceasefire, as South Africa had asked for in its application to the ICJ.
Instead, the ICJ ordered Israel to prevent any acts of genocide of Palestinians in Gaza, including: ‘killing members of the group; causing serious bodily or mental harm to members of the group; [or] deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’.
The World Court judges were courageous enough to take on South Africa’s case despite the opposition of major Western powers (US secretary of state Antony Blinken said the case that Israel was committing genocide was ‘meritless’). The World Court was courageous enough to issue legally binding orders to Israel that will have also angered major Western powers. This included ordering Israel to prevent and punish any ‘incitement to commit genocide’ of Palestinians in Gaza. (South Africa had provided evidence of incitement to genocide by senior Israeli officials.)
However, the court showed cowardice in not following through on the logic of its position by ordering Israel to simply halt its war of destruction in Gaza, as South Africa had asked.
The court also drew back from ordering Israel to stop ‘the expulsion and forced displacement [of Palestinians in Gaza] from their homes’. It also decided not to order Israel to allow international teams to enter Gaza on ‘fact-finding missions’ to preserve and retain any evidence of genocidal acts.
South Africa launched its case against Israel on 3 January, presenting the ICJ with an 84-page legal document on the Genocide Convention and the Gaza War. This ‘application’ paper condemned the killing of civilians and hostage-taking by Hamas and other Palestinian groups on 7 October.
South Africa then went on to argue that Israel’s military response was ‘genocidal in character’ because it is ‘intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group, that being the part of the Palestinian group in the Gaza Strip’.
The World Court will take many years to reach a decision.