On the 7th of October, a significant escalation occurred in the Middle East when Hamas unprecedentedly attacked Israeli territory, capturing hostages. In response, Israel launched a massive military campaign that resulted in more than 26,000 casualties, including women and children. It led to the destruction of homes and the blockade of food, water, and medical assistance, creating difficulties for the survival of pregnant women and newborns. Israel vowed to continue until all hostages are released, and Hamas is annihilated. This disproportionate and collective punishment compelled third parties, none other than South Africa to stop Israel from such aggression.
On December 29, the South African government filed an 84-page legal case at the ICJ, accusing Israel of a “genocidal act” and violating the 1948 Genocide Convention during its nearly four-month bombardment of Gaza, to which both countries are party. South Africa’s immediate objective was to prompt action from the ICJ to order Israel to take “provisional measures” to prevent further humanitarian tragedy and uphold the rights of the Palestinian people mentioned in the Genocide Convention.
The UN’s top court on Friday Instructed Israel, after the appeal of South Africa:
- Under the Genocide Convention and following its obligations to the Palestinians in Gaza, Israel must ‘take all measures within its power’ to prevent acts prohibited by the Convention, especially killing and causing physical or mental harm.
- Israel must ensure that its military forces do not commit any of the acts described in Article 1.
- Israel must take all measures within its power to prevent and punish direct and public incitement to genocide.
- Israel must take immediate and effective steps to facilitate the delivery of humanitarian aid to Gaza.
- Israel must take effective measures to prevent the destruction of evidence related to alleged violations of the Genocide Convention.
- Israel must submit a report to the court within a month on the steps it has taken to implement the order.
Unfortunately, the ruling didn’t call for a rapid indispensable ceasefire, nor did it take any decision on whether or not genocide had been committed.
Friday’s ruling represents a nuanced outcome, neither favouring one side nor achieving a decisive victory, yet it underscores the victimisation of Palestinians and lends credence to their assertions. The ICJ placed limits on how Israel can continue its war. Although it won’t stop the war, Friday’s decision has the potential to create a pressured environment for Israel to justify its operations, especially to those countries backing Israel unwaveringly. On the contrary, Israeli Prime Minister Benjamin Netanyahu responded through a video message, reiterating that Israel has a right to defend itself. He called South Africa’s request for a ceasefire “vile” and “blatant discrimination against the Jewish state,” pressing that “Israel’s commitment to international law is unwavering,” and that it will continue to facilitate humanitarian aid to Gaza.
A final decision is a long way away and arduous in this case. The court’s decisions are legally binding but difficult to enforce, exemplified by Russia’s ignorance of the court’s preliminary ceasefire order in 2022 after invading Ukraine. In this case, both South Africa and Israel are obligated to follow the court orders because they are party to the 1948 Genocide Convention. The ICJ is the UN’s top court; its enforcement mechanism lies with the UN Security Council. Firstly, The US has permanent membership and has a history of vetoing against any effort it sees as an antagonist towards Israel. Secondly, the Security Council is considered to be highly hanging on political dynamics, reflecting the limits of its ability to enforce resolutions.
Confirming genocide brings up tough challenges, demanding evidence of both systematic action and intent. These acts include killing members of a “national, ethnic, racial or religious group”; causing them “serious physical or mental harm”; and “the deliberate subjection of a group of life to conditions calculated to bring about its physical destruction, in whole or in part.” Such actions must be accompanied by the objective: “To destroy, in whole or in part, a national, ethnic, racial or religious group.” Is that an objective Israel does have?
The loss of more than 27,000 civilian lives, including children and women, coupled with the forced displacement of nearly two million Palestinians – representing 90 percent of Gaza’s population, Israel’s imposition of a ‘total siege’ that allows the killing of Palestinians through hunger, the disproportionate, collective and indiscriminate bombardments, demolishment of the residential environs; targeting of hospitals, and healthcare professionals; the deterioration and destruction of cultural, and schools, libraries and universities, and mosques. These all reflect the actions of genocide.
While the intent may be challenging to ascertain, the presentation of 500 statements underscored the Israeli State’s purported intention for inciting genocide since October 7, 2023. The statements are uttered by those with command authority in different sectors of government. The charged party’s intention is indirect and expressive. The law for Palestine database showed people with command authority made genocidal statements several times in the last three months.
Israeli Prime Minister Benjamin Netanyahu depicted Gaza as “the city of evil” on October 7, and then on December 24, crafted Israel’s onslaught as a battle against “monsters”. “This is a battle, not only of Israel against these barbarians, it is a battle of civilization against barbarism,” he let out. Israeli Defence Minister Yoav Gallant clarified Palestinians, as “human animals,” in his statement about the “total siege” on October 9. Similarly, Israeli President Isaac Herzog declared on December 5, that Israel’s attack on Gaza is “a war that is intended, really, truly, to save western civilization… [from] an empire of evil.”
Israel depicted Hamas as an existential threat to themselves, presenting genocide in their case as a legitimate and indispensable defence. This mindset draws resemblances with the Nazis’ interpretation of their genocidal assault on Jews during World War II. Currently, all eyes are on the ICJ to fulfil its entrust duty after employing the explicit language of genocide and massive attacks on Gaza by Israel to save Palestine.
Yasir Khan Kakar
Yasir Khan Kakar, Student of International Relations. At Air University
