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The ICJ’s Provisional Orders: The Genocide Convention Applies to Gaza

On January 26, legal experts, policy wonks, activists and the plain curious waited for the order of the International Court of Justice, sitting in The Hague. The topic was that gravest of crimes, considered most reprehensible in the canon of international law: genocide. The main participants: the accused party, the State of Israel, and the accuser, the Republic of South Africa.

Filed on December 29 last year, the South African case focused on its obligations arising under the Convention on the Prevention and Punishment of the Crime of Genocide and those of Israel. Pretoria, in its case, wished that the ICJ adjudicate and declare that Israel had breached its obligations under the Convention, and “cease forthwith any acts and measures in breach of those obligations, including such acts or measures which would be capable of killing or continuing to kill Palestinians, or causing or continuing to cause serious bodily or mental harm to Palestinians or deliberately inflicting on their group, or continuing to inflict on their group, conditions of life calculated to bring out its physical destruction in whole or in part, and fully respect its obligations under the Genocide Convention.”

The latter words derive from Article II of the Convention, which stipulate four genocidal actions: the killing of the group’s members; the causing of serious bodily or mental harm to those group’s members; the deliberate infliction of conditions calculated to bring about the physical destruction, in whole or in part, of that group and imposing measures to prevent births within the group.

The sheer extent of devastation being wrought by Israeli Defence Forces in Gaza, justified by the Netanyahu government as necessary self-defence in the aftermath of the Hamas attacks of October 7, led the South African team to also seek immediate provisional measures under Article 41 of the Court’s statute. (The review on the case’s merits promises to take much longer.) They included the immediate suspension of the IDF’s military operations in and against Gaza, the taking of all reasonable measures to prevent genocide, and desisting from committing acts within Article II of the Convention. The expulsion and forced displacement of Palestinians should also stop, likewise the deprivation of adequate food, water and access to humanitarian assistance and medical supplies and “the destruction of Palestinian life in Gaza.”

By 15-2, the court accepted that “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment.” (Over 26,000 Palestinians have been killed, extensive tracts of land in Gaza pummelled into oblivion, and 85% of its 2.3 million residents expelled from their homes.) Measures were therefore required to prevent “real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, before it gives its final decision.”

The grant of provisional measures was, however, more conservative than that sought by Pretoria. Conspicuously missing was any explicit demand that Israel pause its military operations. That said, the judgment did little to afford Israel’s leaders and the IDF comfort from the obligatory reach of the Genocide Convention, an instrument they had argued was irrelevant and inapplicable to the conduct of “innovative” military operations.

To that end, Israel was obligated to take all possible measures to prevent the commission of acts under Article II of the Genocide Convention, including by its military; prevent and punish “the direct and public incitement to genocide” against the Palestinian populace in Gaza; permit basic services and humanitarian assistance to the Gaza Strip; ensure the preservation of, and prevent destruction of, evidence related to acts committed against Gaza’s Palestinians within Articles II and III of the Convention; and submit a report to the ICJ on how Israel was abiding by such provisional measures within one month.

As is very much the form, the justice from the country in the dock, in this case, Israel’s Aharon Barak, could see nothing inferentially genocidal in his country’s campaign. South Africa, he insisted, had intentionally ignored the role played by Hamas in its October 7 attacks, and “wrongly sought to impute the crime of Cain to Abel.”

Inevitably, the singular experience of the Holocaust survivor, the sui generis Jewish view of trauma, used as solid armour against any possibility that Israel might ever commit genocide, became a point of contention. Genocide “is the gravest possible accusation and is deeply intertwined with my personal life experience.” Israel had a firm commitment to the rule of law, and to accept that it was committing genocide “is very hard for me personally”. Tellingly, he suggested that Israel’s campaign in Gaza be examined, not from the viewpoint of the Genocide Convention but international humanitarian law.

With classic casuistry, Barak did vote for the measure requiring Israel to do everything “within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza strip.” But having identified nothing in the way of such intent, the issue became a moot one. With some relief, Barak could state that certain measures sought by South Africa, including an immediate suspension of military operations, were rejected by the ICJ, which preferred “a significantly narrower scope”.

From the other side of the legal aisle, the South African foreign minister, Naledi Pandor, wished that the ICJ had grasped the nettle to order a halt in military operations. But, with some deft reasoning, she was satisfied that the only way Israel could implement the provisional measures would be through a ceasefire. Much the same view was expressed by the Associated Press: “The court’s half-dozen orders will be difficult to achieve without some sort of cease-fire or pause in the fighting.” That logic is clear enough, but the actions, given the various statements from Prime Minister Benjamin Netanyahu and his officials alleging slander and a blood libel against their country, are unlikely to follow.

 

 

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15 comments

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  1. Pingback: The ICJ’s Provisional Orders: The Genocide Convention Applies to Gaza - independent news and commentary Australia

  2. Canguro

    In a world over-represented by the bleak; e.g. the USA and its collective madnesses, the myriad ongoing armed conflicts, ecological breakdowns and other climate & GW related issues, shifts to right-wing politics and breakdowns in traditional democratic models, failures of governments in many jurisdictions to properly prosecute their core roles in developing and maintaining best-practice policies with regards to their constituents, the sociopathy of many corporations and business leaders in viewing customers & consumers as nothing more than revenue sources that must be maximised at whatever the cost to the individuals thus fleeced, the inability of collective governments and nations to bring some degree of relief to the millions who lack basic human amenities, the ongoing international demonisation of refugees… I’m sure there’s more… it was a warming moment of lucid truth-telling to watch the livestream from the Hague and to hear the overwhelming endorsement by the panel of judges of South Africa’s case for the finding that Israel is committing genocide against the Palestinians.

    What happens next will be closely observed – a test case for the mantra of ‘rules-based order.’

  3. Douglas Pritchard

    Can, Do you ever get the impression that being part of the “Rules based order” is simply our subscription to a gang of thugs doing what we can get away with?
    Not something to be proud of, with a very short term agenda, and destined to drop us eventually squarely into the poo.
    Something like the old dray horse, with blinkers on we crash blindly on, destined only for the knackers yard.

  4. JulianP

    Douglas, I found it telling that some time back (US) Empire apologists began referring to “..the rules based order” in place of a reference simply to “international law” – bears out your point I think.

    Also, you will be pleased to know that our Defence Minister is firmly of the view that “…Australia must stand up for the rules-based order. Australia must stand up for freedom of navigation.” – whether that be in the South China Sea or in the Red Sea.

    [ https://www.minister.defence.gov.au/transcripts/2024-01-12/doorstop-geelong-victoria ]

    I have to conclude that our Defence Minister prefers (in this case) the wellbeing of international trade & commerce over that of the Palestinian people.

  5. A Commentator

    Two recent cases –
    * The ICC has told Israel to observe international law without finding it has breached international law.
    * On the other hand, the ICC issued specific provisional orders against Russia over its invasion of Ukraine, which they ignored.

  6. Anne Byam

    Not being given to attacks of paranoia, I nonetheless have to make comment about the way this all started. My comments have been noted in the family and two of them, have called me paranoid. !! Forget that … I do honestly believe the following :

    On October 7th, a horrid attack was made in Israel by Hamas – which we all know about. In the following days, I heard / saw some commentary ( radio and tv ), about genuine puzzlement and curiosity at least, as to why a country who has long been touted as having a highly efficient intelligence organization within and without their military and security, could possibly allow an incursion to happen
    ( the way it did ) … and why there was not adequate responses imposed at the time, or before the actual attack. Curious indeed…

    Methinks they do protest too much as constant reminders to the world are put forward by Netenyahu and his cohorts as to why Israel will continue their aggressions, extreme as they are, against what they purport to be ‘ the Hamas intent against Israel, the way Hamas operates from secret structures ( tunnels ) .. and their intent to harm anything and everything Israeli ‘

    Is it possible that Israel knew, by use of their superior intelligence and military preparedness, of the impending incursion by Hamas, and quite deliberately allowed it to happen, so that they could find the excuse needed to do what they have long been doing more quietly anyway – that is take over the entire Palestinian areas, and make it all into a bigger total Israel. In allowing this incursion, the opportunity presented itself to go after the remains of Palestine to belong to Israel. If it weren’t so sick it would be amusing – to mention the sexual violence and horrors inflicted by Hamas in Israel on October 7th, and compare it to the number of innocent people including so many children, since killed by Israeli military action, and the ongoing deprivation of life sustenance to those innocents.

    I believe it is wholly possible that this is what occurred …. Mossad ‘bombed’ at the behest of the ruling horror Netanyahu and the ongoing and remaining story is becoming history. Israel is now a totally rogue state, and will remain so while such an evil creature as Netanyahu is at the helm.

    Israel unilaterally withdrew from Gaza in 2005. They are now attempting to reverse that in the vilest ways possible and are blatantly ignoring the plethora of calls for a ceasefire, and negotiations of some kind. The international community needs to stand up to Israel way more strongly than they have, and hopefully a precedent has been established by South Africa to bring this out of control mob to order.

  7. Andrew Smith

    ‘But it’s important to note that the ICJ has no enforcement powers. Two years ago it ordered Russia to cease its invasion of Ukraine. That war continues unabated.’

    https://theconversation.com/uns-top-court-orders-israel-to-prevent-genocide-in-gaza-but-fails-to-call-for-immediate-ceasefire-222080

    Sam Vaknin did a good presentation, describing the Netanyahu – Hamas regimes’ relationship as an example of ‘codependent narcissism’, along with violence and corruption, de rigeuer for authoriarian regimes.

  8. corvusboreus

    Annie Byam,
    I hold similar suspicions
    A succinct summary of some of Israel’s political ‘misteps’ and intelligence failings leading up to the 7/10 attacks:
    “if you’re listening” with Matt Bevan ABC, running time 17:33 mins

  9. Caz

    Netanyahu denies genocide but his own words condemn him. He has said Gaza will be wiped off the map.

  10. Pingback: The ICJ’s Provisional Orders: The Genocide Convention Applies to Gaza – Equilibrion

  11. Pingback: Nuclear news – week to 29 January – Equilibrion

  12. Anne Byam

    CB – Thankyou for posting the Matt Bevan video summary of ” Israels Intelligence Fail “. It was a very interesting, detailed 17 minutes of well researched content. I am not at all surprised at it all either. Wondering if any of this abhorrent situation, particularly Israels ( actually Netanyahus’ ) doing will be punished severely at any time in the future. Very doubtful unfortunately,

  13. Canguro

    Fred Reed‘s a kind of an American version of Grumpy Geezer… been around for years poking the bear and generally calling bullshit on the antics and japes of those who take themselves so seriously in their assigned roles as make-believe real people doing make-believe real stuff in the worlds of politics and war-mongering.

    A recent essay on the madness of the Middle East… Here We Go Again in the Holy Land.

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