Rights and Accountability 24 May 2024
The International Court of Justice convenes for the delivery of a court order on the request for the indication of additional provisional measures by South Africa in its genocide complaint against Israel, The Hague, 24 May.
The International Court of Justice ordered a halt to Israel’s military offensive and any other action in Rafah “which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.”
While warmly welcomed by supporters of Palestinian rights, the court order handed down on Friday stops short of an unequivocal demand to end hostilities in Rafah and for the withdrawal of the Israeli army from the entirety of Gaza, as requested by South Africa.
The court observed that the catastrophic humanitarian situation in Gaza continues to deteriorate despite previous legally binding orders demanding that Israel allow the immediate and effective provision of basic services and humanitarian aid to the territory.
The judges stated that they were unconvinced that Israel had taken care to ensure the security of civilians by ordering the evacuation of Rafah.
Nor were the judges swayed by the response given by Israel when asked about the conditions in and passage to its unilaterally declared “humanitarian zones,” including al-Mawasi.
“Convoluted”
Many champions of Palestinian rights interpreted the provisional measures as ordering a halt to Israel’s offensive in Rafah without any condition. Others found the language to be “convoluted.”
Some court judges who weighed in on the measure in statements appended to the ruling said that the order to halt Israel’s offensive in Rafah was limited to the extent that it “may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.”
Aharon Barak, Israel’s ad hoc judge, stated in a dissenting opinion that the provisional measure concerning Rafah “merely reaffirms Israel’s existing obligations” under the Genocide Convention.He added that the “qualified” order means that “Israel is not prevented from carrying out its military operation in Rafah as long as it fulfills its treaty obligations.” According to Barak, “the military offensive in Rafah does not plausibly raise questions under the Genocide Convention.”
The Israeli judge contended that “there is no evidence of intent” – the threshold that must be met for the crime against humanity of genocide.
Julia Sebutinde – a judge from Uganda and vice-president of the court who voted against all measures alongside Barak – likewise stated that she viewed the order as qualified.
Judge Georg Nolte of Germany asserted that the court order “does not address military operations outside Rafah and that the measure obliging Israel to halt the current military offensive in Rafah” is conditional.
Bogdan Aurescu, a judge from Romania, explained that the provisional measure was qualified. The jurist added that the court could have stated that the measures indicated “do not affect the right of Israel to conduct operations” in conformity with international law “to protect its civilian citizens and to free the hostages still held in the Rafah area by armed groups.”
Aurescu regretted that the court did not include “a measure by which it could have asked Israel to make demarches to implement with immediate effect Security Council resolution 2728 (2024), including its provision on a ‘lasting sustainable ceasefire.’”
That resolution, adopted in March, demanded a immediate but temporary ceasefire, the “immediate and unconditional release of all hostages” and “the lifting of all barriers to the provision of humanitarian assistance at scale.”
Dire Tladi, a South African judge, similarly said that the Rafah order refers to “offensive” operations and that “legitimate defensive actions, within the strict confines of international law, to repel specific attacks, would be consistent with the order of the court” (emphasis in original).
Tladi added that what would not be consistent with the order is the “continuation of the offensive military operation in Rafah, and elsewhere, whose consequences for the rights protected under the Convention on the Prevention and Punishment of Genocide has been devastating.”
Little ambiguity
The other three measures ordered by the court on Friday left far less room for interpretation.
The new provisional measures – similar to an injunction or restraining order – also include an order to open Rafah crossing on the Gaza-Egypt border “for unhindered provision at scale of urgently needed basic services and humanitarian assistance.”
The judges also ordered Israel to allow United Nations missions unimpeded access to Gaza “to investigate allegations of genocide” and to submit a report to the court within one month “on all measures taken to give effect to this order.”
The new set of provisional measures – the third in the case of South Africa vs. Israel – reiterates what the court has already demanded of and has been brazenly flouted by Israel.
In January, the court stated in an interim ruling that there was a plausible risk of genocide in Gaza and called on Israel to “take all measures within its power” to prevent violations of articles of the Genocide Convention, to which it is a state party.
The judges also ordered Israel to prevent and punish incitement to commit genocide, enable the provision of basic services and humanitarian assistance in Gaza and to prevent the destruction of evidence.
Obligations
The second set of provisional measures issued in late March ordered Israel to take “necessary and effective measures to ensure, without delay, in full cooperation with the United Nations, the unhindered provision at scale … of urgently needed basic services and humanitarian assistance.”
The judges also ordered Israel to ensure that “its military does not commit acts which constitute a violation of any of the rights of the Palestinians in Gaza … including by preventing, through any action, the delivery of urgently needed humanitarian assistance.”
In a separate case initiated by Nicaragua, the court declined to issue emergency measures barring German arms exports to Israel as sought by the Central American state.
But in their ruling in the Nicaragua case, the judges affirmed that state parties to the Geneva Conventions “are under an obligation ‘to respect and to ensure respect’” for the law and that states must “employ all means reasonably available to them to prevent genocide so far as possible.”
The court reminded states of their obligations in relation to the transfer of arms where there is a risk that weapons might be used to violate international law.
Reacting to Friday’s decision by the World Court, Al Mezan, a Gaza-based Palestinian human rights group, said that the only way for Israel to fully comply with all of the provisional measures issued since 26 January “is the immediate cessation of hostilities in all of Gaza.”
Gisha, a human rights group based in Israel that advocates for Palestinians’ right to freedom of movement, likewise said that “a full ceasefire is the only way to begin to reverse the humanitarian catastrophe in Gaza, stop the killing, starvation and displacement of civilians there, and bring the hostages home.”
Calls for arms embargoes
While they may not provide Palestinians in Gaza with urgently needed protection, the new orders by the International Court of Justice will also put more pressure on Israel’s allies to enforce the tribunal’s rulings, including through the imposition of arms embargoes.
“It is time to move beyond diplomatic rhetoric and implement concrete measures in line with international law,” three prominent Palestinian human rights organizations said on Friday.
“For nearly eight months, 2.3 million Palestinians in Gaza have endured a genocidal military campaign by Israel that has killed over 35,700 and injured more than 80,000,” the rights groups added. “The time for action is long overdue.”
DAWN, a Washington-based human rights watchdog, said that the court ruling “leaves no ambiguity about what should follow: an arms embargo on Israel.”“Continued US arms transfers to Israel would constitute deliberate defiance of the Court’s orders and make our government complicit in genocide,” DAWN added.
The new orders will also bolster the case against Israeli leaders at the International Criminal Court, which submitted applications for arrest warrants on Monday.
The International Court of Justice and the International Criminal Court, both based in The Hague, are separate entities.The former, also known as the World Court, is the UN’s principal judicial organ and handles complaints between states and issues legal opinions when requested to do so from within the UN system.
The latter investigates and brings charges against individuals, rather than states.
Israel recognizes the International Court of Justice but rejects the jurisdiction of the International Criminal Court, as does the US.
The ICC’s announcement of looming arrest warrants and the latest orders from the World Court are dramatic indications of Israel’s international isolation.
Should Israel violate the new provisional measures as it has those that came before, it will only further harden its status as a global pariah.
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