Prevent Genocide Of Palestinians In Gaza, Allow Humanitarian Aid : ICJ Directs Israel In South Africa's Application

Today, on 26 January 2024, Judge Joan E. Donoghue, the President of the Court, read the Order.

Court's findings

The Court at the outset clarified that it is only indicating provisional measures based on a prima facie analysis and that the order is not a final verdict on the allegations against Israel.

It held that South Africa has the standing to bring the action under the Genocide Convention. "In the Court's view, at least some of the acts and commissions alleged by South Africa to have been committed by Israel in Gaza appeared to be capable of falling within the provisions of the (Genocide) convention," the Court stated.

Palestinians constitute a distinct racial group and fall within the meaning of "protected group" under the Genocide Convention.

The Court also noted that Israel's actions have resulted in over 27,000 deaths, 63,000 injuries, displacement of 1.7 million persons and destruction of several homes.

"The court is acutely aware of the extent of the human tragedy unfolding in the region and is deeply concerned about the continuing loss of life and human suffering.

Israel launched a large-scale military operation in Gaza by land, air and sea which has caused massive civilian casualties, extensive destruction of civilian infrastructure and the displacement of the overwhelming majority of Gaza's population," it observed in the order.

ICJ takes note of statements issued by Israel Ministers and officials

The ICJ also noted some of the statements made by the Ministers and Military officials of Israel. Statements made by the Israel Defence Minister calling the Gaza inhabitants "human animals" and announcing the intention to cut electricity and water supply to the region were particularly taken note of. A Tweet made by Israel's Energy Minister that all the civilian population of Gaza have been ordered to be removed and that they will not receive a single drop of water was also cited by the Court.

In view of the fundamental value sought to be protected by the Genocide Convention, the Court opined that the right of the Palestinians in the Gaza Strip to be protected from the acts of genocide are of such nature that irreparable harm will be caused if provisional measures are not issued.

"The Court concludes that the conditions required by its statute for it to indicate provisional measures are met," it said.

Background

The Hamas terrorists attacked Israel on October 7, 2023, killing around 1200 people. Retaliating this, Israel mounted a deadly military operation in Gaza. The attack has killed around 23,000 Gazan people, including several women and children.

Amidst this Israel-Gaza conflict, South Africa filed an 84-page application against Israel in the World Court last year in December. In this application, it sought to bring Israel's actions in the Gaza strip under genocide as defined under the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. Pertinently, both South Africa and Israel are parties to the Genocide Convention.

Given that the final ruling could probably take years, South Africa, at this stage, beseeched for provisional measures.

The submissions by both Governments were made in a two-day public hearing on January 11 and 12.

On one hand, South Africa has contended that there was a “genocidal intent” on the part of Israel. Senior Advocate Tembeka Ngcukaitobi, averred that the intent to destroy Gaza has been nurtured at the highest levels of the State. To bolster their arguments, South African attorneys also showed some crucial clips in the UN's Top Court, where officials holding high positions, including Isarel's PM, were seen making harsh remarks against Gaza.

The Government also placed its reliance on the Gambia v. Myanmar case (in which directions were passed to Myanmar to prevent the genocide of Rohingyas). It was submitted that the ICJ has made it clear that a court doesn't need to come to a final view while deciding whether Israel's conduct constitutes Genocide. It is necessary to establish, at a prima facie level, only whether at least some of the acts alleged are capable of falling within the convention's provisions.

On the other hand, Israel responded that it is defending itself against Hamas, Palestinian Islamic Jihad, and other terrorist organizations. Besides, it also assailed the case by arguing that South Africa had put a 'profoundly distorted factual and legal picture.'

Click here to read the order