Foreign affairs minister Naledi Pandor makes statements to press members after attending a session on the day of the International Court of Justice (ICJ) rule on the Gaza genocide case against Israel made by South Africa in the Hague, the Netherlands on January 26, 2024. (Photo by Selman Aksunger/Anadolu via Getty Images)
In a victory for South Africa, the International Court of Justice (ICJ) granted an interim order on Friday outlining steps that Israel must take to prevent acts of genocide against Palestinians in Gaza, including killing and causing bodily and mental harm to citizens.
But the judgment handed down by the ICJ president, Judge Joan Donoghue, stopped short of ordering a ceasefire and for Israel to withdraw its troops from Gaza.
Donoghue said the court had concluded “prima facie” that South Africa had standing to submit to the ICJ its dispute with Israel over its alleged violations of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.
She said South Africa had on various occasions publicly raised its concerns regarding the dispute with Israel and that the Palestinians met the requirements for special protection in terms of section two of the convention, which outlines that in defining genocide there must be intent to destroy at least a substantial part of a particular group.
“This is demanded by the very nature of the crime of genocide, since the object and purpose of the convention … to prevent the intentional destruction of groups. The parts targeted must be significant enough to have an impact on the group as a whole. The Palestinians appear to constitute a distinct national ethnical racial or religious group and hence a protected group within the meaning of Article Two of the Genocide Convention,” she said.
Donoghue said the court had observed that, according to United Nations sources, the Palestinian population in the Gaza Strip comprised more than two million people and therefore constituted “a substantial part of the protected group”.
“The court notes that the military operation being conducted by Israel following the attack of 7 October 2023 has resulted in a large number of deaths and injuries as well as massive destruction of homes, the forcible displacement of the vast majority of the
population and extensive damage to civilian infrastructure,” she added, noting that recent unverified information indicated that about 25 700 Palestinians have been killed.
“Over 63 000 injuries have been reported. Over 360 housing units have been destroyed or partially damaged and approximately 1.7 million persons have been internally displaced.”
Donoghue said the court took into account eyewitness accounts and statements including that of UN secretary general for humanitarian affairs and emergency relief coordinator Martin Griffis, who on 5 January said: “Gaza has become a place of death and despair. Families are sleeping in the open as temperatures plummet. Areas where civilians were told to relocate for their safety have come under bombardment and medical facilities are under relentless attack. A public health disaster is unfolding. Gaza has simply become uninhabitable. Its people are witnessing daily threats to their very existence, while the world watches.”
The World Health Organisation reported that as of 21 December, an unprecedented 93% of the population of Gaza was facing crisis levels of hunger, with insufficient food and high malnutrition.
Donoghue said the ICJ also noted the statement by the commissioner general of the UN Relief and Works Agency for Palestine Refugees in the Near East, Philippe Lazzarini, on the devastating 100 days since the 7 October attacks by Hamas, which killed more than 1 000 people while scores of hostages were taken taken and Israel’s devastating retaliation
“It’s been 100 days of ordeal and anxiety for hostages and their families. In the past 100
days of sustained bombardment across the Gaza Strip caused the massive displacement of a population that is in a state of flux, constantly uprooted and forced to leave overnight, only to move to places which are just as unsafe,” Lazzarini said.
Donoghue said in the circumstances the court considered “the catastrophic humanitarian situation” in the Gaza Strip was “at serious risk of deteriorating further before the court renders its final judgment”.
“The court concludes on the basis of the aforementioned considerations that the conditions required by statute for it to indicate provisional measures are met … It is therefore necessary pending its final decision for the court to indicate certain measures
in order to protect the rights claimed by South Africa,” she said.
The court ruled by 15 votes to two that Israel should “take all measures within its power to prevent the commission of all acts in the scope of article two of the convention”.
It highlighted “killing members of the group [Palestinians]” as well as “causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
imposing measures intended to prevent births within the group”.
“The court recalls that these acts fall within the scope of Article Two of the convention when they are committed with the intent to destroy in whole or in part of the group as such,” Donoghue said.
The court ruled Israel must “with immediate effect” ensure that its military did not commit any acts described in terms of the convention and should “punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip” as well as taking immediate and effective measures to ensure the provision of urgently needed basic services and humanitarian assistance to Palestinians in Gaza.
Israel must also take measures to prevent the destruction and ensure the preservation of evidence related to allegations of genocidal acts against Palestinians, and submit a report on implementation of all these measures to the court within one month.
Donoghue said the court was also concerned about the plight of the more than 200 hostages Hamas had abducted.
“The court deems it necessary to emphasise that all parties to the conflict in the Gaza Strip are bound by international humanitarian law. It is gravely concerned about the fate
of the hostages abducted during the attack in Israel on 7 October 2023 and held
since then … and calls for their immediate and unconditional release,” she said.
South Africa’s international relations and cooperation minister, Naledi Pandor, welcomed the ruling, saying the ICJ had dealt expeditiously with the matter to protect innocent civilians.
“The saving of life is not merely in respect to having a ceasefire. It ensures that humanitarian aid is provided to those who need support as well as ensuring the state of Israel, which is currently occupier and administrator in Palestine, provides the necessary basic services that the residents of Gaza and the West Bank require,” she told journalists outside the courthouse.
“This case was very much about international bodies ensuring that they exercise their responsibility to protect us all, as global citizens … South Africa had the view that we could not stand idly by and continue to observe the killing of thousands of Palestinian
citizens.”
“We also in our various engagements with our partners internationally believe the moment is now right, for there to be negotiations for a two-state solution to end this conflict decisively.”
“I would have wanted a ceasefire but I’m not going to say I’m disappointed,” she added.
President Cyril Ramaphosa said the judgment affirmed South Africa’s right to take Israel to court — even though it was not a party to the conflict in Gaza — and that his government expected Israel to abide by the measures handed down by the ICJ.
“This marks an important first step in our quest to secure justice for the people of Gaza,” he said. “Some have told us to mind our own business. Others have said it was not our place. And yet it is very much our place, as people who know too well the pain of dispossession, discrimination, state-sponsored violence.”
Also responding to the ruling, Israeli Prime Minister Benjamin Netanyahu said his country’s commitment to international law was “unwavering” but added that “equally unwavering is our sacred commitment to continue to defend our country and defend our people”.
“The vile attempt to deny Israel this fundamental right is blatant discrimination against the Jewish state, and it was justly rejected.The charge of genocide leveled against Israel is not only false, it’s outrageous, and decent people everywhere should reject it,” he said.
Human Rights Watch’s associate international justice director, Balkees Jarrah, said Friday’s ruling put Israel and its allies on notice that “immediate action is needed to prevent genocide and further atrocities against Palestinians in Gaza”.
“Lives hang in the balance and governments need to urgently use their leverage to ensure that the order is enforced. The scale and gravity of civilian suffering in Gaza driven
Israeli war crimes demand nothing less,” Jarrah said.
“The court’s clear and binding orders raise the stakes for Israel’s allies to back up their stated commitment to a global rules-based order by helping ensure compliance with this watershed ruling.”
The ICJ comprises 15 judges elected by the United Nations General Assembly and Security Council for nine-year terms.
When two countries have a dispute and the court does not include their nationals on the bench, the governments can appoint ad hoc judges. In this case, South Africa appointed former deputy chief justice Dikgang Moseneke and Israel has appointed Aharon Barak, a retired Israeli supreme court president. — Additional reporting by Lunga Mzangwe