The United Nations International Court of Justice asked Israel, on Friday, to “prevent and punish incitement to genocide against the Palestinians,” as part of its preliminary ruling on the lawsuit filed by South Africa against Israel, accusing it of committing “genocide” in the Gaza Strip, without ordering A ceasefire as requested by South Africa.
South Africa filed the lawsuit in the International Court of Justice last month, asking it to impose emergency measures to stop the fighting that has killed more than 26,000 Palestinians, according to the Ministry of Health in Gaza.
During the sentencing, the judges said that Israel must take all measures within its authority to prevent and punish its forces from committing acts of genocide, in addition to taking the necessary steps to improve the humanitarian situation in Gaza.
What does the decision mean?
International law expert Anis Al-Qassim says, “The court’s decision obligates Israel to lift the blockade on basic supplies, such as medicine, water, and food, which is very important for people who are dying of hunger, in addition to obliging Israel to implement other requests received from the court.”
The court ordered against killing or incitement to commit genocide, prevent destruction and ensure the preservation of evidence relating to allegations of genocide.
For his part, the international arbitrator and lawyer Omar Al-Jazi believes that the court’s decision is “important and pivotal in achieving justice for the Palestinian people,” as the mere acceptance of the case to be heard by the International Court of Justice, and acceptance of its jurisdiction and powers in the original case constitutes a victory for South Africa, as the right to South Africa is suing Israel on charges related to the genocide of Palestinians from the highest international judicial body in the world, according to Al-Jazi.
In presenting its decision, the court affirmed its jurisdiction to consider and decide on this lawsuit, and found that South Africa has the right to hold Israel accountable regarding its failure to adhere to the issue of preventing genocide in accordance with the Geneva Convention, and the court refused to accept a request that Israel had submitted to refuse to consider the lawsuit filed. against it, and on its authority to take measures to prevent any existing harm or danger, and it can issue a final ruling.
While Israeli Prime Minister Benjamin Netanyahu rejected the accusation of committing genocide, he said in a press statement, “The mere allegation that Israel is committing genocide against the Palestinians is not only false, but it is shameful, and the mere willingness of the court to discuss this is a disgrace that will not be erased for generations.” Netanyahu stressed that his country would continue to defend itself.
For Al-Qassem, the court’s decision does not represent a victory for South Africa nor a defeat for Israel, given that what was announced are “temporary” measures that do not affect the root of the conflict, which is the accusation of committing genocide. Al-Qassem explains that the decision does not constitute a presumption that Israel is committing the crime of genocide, but he points out The court seemed sympathetic to “the current tragic situation” in Gaza, as evidenced by the vote of the overwhelming majority of court members on temporary measures, which makes it describe the decision as “exceptional.”
Why did the resolution not include a ceasefire?
Although the court’s decision did not include an explicit text for a ceasefire as requested by South Africa in the lawsuit filed on the twenty-ninth of last December, the country’s Minister of Foreign Affairs considered in a press conference after the end of the session that the orders of the Court of Justice could not be implemented without… cease-fire.
South Africa had asked the court last month to indicate nine interim measures in relation to the Palestinian people as a protected group under the Genocide Convention, the most prominent of which was “Israel’s immediate suspension of its military operations in and against Gaza,” as stated in its request.
“Interim measures” are described as orders issued by a court before its final ruling in a case, with the aim of preventing irreparable damage. Under it, the defendant state is obligated to refrain from taking certain measures until the court issues the final ruling.
International arbitrator and lawyer Omar Al-Jazi says that the team standing alongside South Africa hoped that the resolution would include an explicit and clear text for a ceasefire, but from a legal standpoint there may be differences regarding considering this a political rather than a legal formula.
Al-Jazi says, “Some may disagree about this, and consider that the ceasefire decision is a political term and not a legal term, even if it was previously used by the court in the case of Ukraine and Russia, but at that time it viewed the case as a conflict between two regular armies.”
Al-Jazi believes that the decision will lead to a ceasefire, and adds, “The decision is good for the Palestinian side and does not affect the rest of the measures. Temporary measures cannot be implemented except with a ceasefire.”
For his part, international law expert Anis Al-Qassem expresses his surprise that the resolution does not include a clear formula about a ceasefire and adds, “Frankly, I did not find a reason not to utter this word, because what the court requires of Israel cannot be implemented without a ceasefire.” However, Al-Qassem believes that the rest of the measures taken are more extensive than the decision to stop hostilities, and will necessarily lead to a ceasefire. He says: “It is unreasonable for the blockade of food, water and medicine to be lifted in light of the continued bombing.”
UN-accredited journalist Dina Abi Saab told the BBC, “Not including the ceasefire formula caused disappointment on the side supporting the lawsuit against Israel.”
Abi Saab explains that the court’s decision in this case was “taken very quickly” compared to other previous decisions that were approved in similar cases, the most prominent of which was the one taken by the court in the Russian-Ukrainian war.
For his part, Netanyahu welcomed the International Court’s decision, which did not order a ceasefire, and added in a statement, “Like every country, Israel has an inherent right to defend itself… The International Court in The Hague is right in rejecting the outrageous request to deprive us of this right.”
The US State Department also said that the decision of the Hague Court is consistent with its vision that Israel has the right to take measures to ensure that October 7 is not repeated.
Abi Saab explains that Israel must provide the International Court of Justice a month from now with a report on the measures it has taken. It says, “If Israel ignores or refrains from implementing the court’s decisions, it is possible that the matter will be referred to the UN Security Council and the UN General Assembly, which will take a decision in the event of failure to implement the decisions of the Court of Justice.”
Abi Saab added that reaching the Security Council would once again place the matter subject to the American veto, after it had been used several previous times since the start of the war against the ceasefire resolution, but if this matter were to happen, this would “put the United Nations at a very critical point in its history.” Considering that the court is the first legal authority for the United Nations and the highest judicial authority in the world, which puts all its tasks under review.
Regarding the report requested by the Court of Justice from Israel, Abi Saab says that the South African legal team will also document any violations occurring by Israel, and it is possible that South Africa will have the authority to submit a similar report in the next session in which Israel is supposed to submit its report, and she explained that Executive actions are usually referred to the Security Council, which would decide and translate any demands to the court.
International arbitrator and lawyer Omar Al-Jazi adds that South Africa can request other preventive procedures and measures depending on the development of the conflict on the ground as long as the international court has jurisdiction to consider the case. He confirms that these measures can be used to put pressure on the International Criminal Court later, and they can also be used in other courts that may consider the case.
He believes that the recent decision paves the way for several countries to join South Africa’s lawsuit or work on new lawsuits that could increase international legal pressure on Israel later.
The post first appeared on www.bbc.com