The International Court of Justice (ICJ) has issued a judgment that represents a significant victory for South Africa and a devastating legal and moral defeat for Israel. The court's majority decision negotiated the legal terrain put up by Israeli lawyers, particularly regarding the jurisdiction of the court to hear the case, the test for granting provisional measures, and the concomitant test for genocidal intent.
The Israeli argument regarding jurisdiction was not without merit, as it was evident from a reading of Gambia v Myanmar that the court paid considerable attention to whether a dispute was properly before the court, with great reference to whether the parties had engaged properly before the referral. However, the court was confronted with egregious levels of destruction and death directly linked to Israel’s military bombardment.
The legal move the court made was to find on the basis of this set of factual findings that rights held by protected groups in terms of the Genocide Convention had been eroded/destroyed. Article 2 of the Genocide Convention is key, as it defines genocide as any act committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.
There was some debate about the test at the stage of a provisional order for genocidal intent, but the problem for Israel’s legal defense was that at the stage of provisional measures the bar is lower. The clear statements which fell within the Genocide Convention by the president of Israel, Isaac Herzog, the minister of defence, Yoav Gallant, and the minister of energy, Israel Katz, were coupled with the devastating facts on the Gaza ground to justify a conclusion of genocidal intent which sufficed at this stage of the proceedings.
It was predictable that the court would not grant a ceasefire as Hamas is not a party to the convention. For this reason, it may be incorrect that the order cannot receive compliance unless there is a ceasefire, as it does not prohibit military action so long as it is in compliance with the convention. However, Israeli military action will need to be targeted to avoid civilian casualties, which is admittedly a high bar for Israel to negotiate.
Israel should move to charge genocide inciters and do far more to ensure that humanitarian aid flows into Gaza. Even Israeli judge Aharon Barak agreed to these parts of the order. South Africa emerges with great credit as a defender of international law, and the hope is that this commitment will be consistently applied.
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