U.N. Court says Gaza genocide is ‘plausible’ but does not order cease-fire
The International Court of Justice has found it is “plausible” that Israel has committed acts that violate the Genocide Convention. In a provisional order delivered by the court’s president, Joan Donoghue, the court said Israel must ensure “with immediate effect” that its forces not commit any of the acts prohibited by the convention.
Donoghue said the court cannot make a final determination right now on whether Israel is guilty of genocide. But she said that given the deteriorating situation in Gaza, the court has jurisdiction to order measures to protect Gaza’s population from further risk of genocide.
The Court ordered the followings
- Israel must, in accordance with its obligations under the Genocide Convention and in relation to Palestinians in Gaza, ‘take all measures within its power’ to prevent the commission of acts prohibited in the Convention, in particular killings, causing serious physical or mental harm, the deliberate infliction of conditions of life calculated to bring about the physical destruction of the population in whole or in part, and the imposition of measures intended to prevent births;
- Israel must ensure that its military forces do not commit any of the acts mentioned in point 1;
- Israel must take all measures within its power to prevent and punish direct and public incitement to commit genocide;
- Israel must take immediate and effective measures to enable the provision of humanitarian relief to Gaza;
- Israel must take effective measures to prevent destruction of evidence relating to allegations of acts contrary to the Genocide Convention;
- Israel must submit a report to the Court within one month regarding the measures it has taken to give effect to the Order.
Orders 1, 2, 5 and 6 above were made by a vote among the judges of 15-2, the two in opposition being judge Sebutinde (of Uganda) and judge ad hoc Barak (of Israel). Orders 3 and 4 were decided upon by all the judges except judge Sebutinde.
The Court also noted that all parties are bound by international humanitarian law; it stated that it was gravely concerned by the fate of the hostages and called for their immediate release.
The provisional measures
The Court has not taken a decision on whether or not genocide has been committed. Nor has the Court decided whether it even has jurisdiction to hear the case.
For the purpose of the provisional measures order, the ICJ only had to decide whether it had prima facie jurisdiction – at first glance – as well as:
- Whether there was a link between the measures requested and the rights covered by the case;
- Whether the underlying case was at least plausible;
- Whether there would be irreparable prejudice to the case if measures were not ordered;
- Whether the matter was urgent.
In taking their decision of 26 January, the Court described how it regarded all these conditions as being met.
The Court also decided that South Africa prima facie has ‘standing’ to bring the case, that is, it has the right to do so under the Genocide Convention, recalling that the obligations under the Convention are erga omnes: they concern the International community as a whole.
South Africa had requested the Court to order a ceasefire. The Court did not do so. And the Court did not follow the language, nor in some case the content, of the other requests made by South Africa.
The provisional measures are legally binding on Israel and there is no right of appeal. There is of course no international police to enforce rulings of the ICJ, but any decisions the Court takes have at least reputational, political and diplomatic impact including in the court of public opinion. It would also be possible to take the issue to the UN Security Council.
This is a developing news…
