ICJ finds SA's case on Palestinian rights was plausible

The International Court of Justice (ICJ) on Friday made several orders in South Africa's genocide case against Israel on Friday, saying there were sufficient facts and circumstances to conclude that some of the rights claimed by South Africa were plausible. 

“This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts in [the Genocide Convention],” said the court.

South Africa had approached the court urgently in December asking it to indicate “provisional measures” — binding interim orders that would protect parties’ rights while their long-term genocide case against Israel is argued and determined, which will likely take years. 

In these interim proceedings, the court was not deciding definitively on whether Israel had violated the Genocide Convention. “It need only decide whether the rights claimed by South Africa, and for which it is seeking protection, are plausible,” said the court.

South Africa was successful in its application for provisional measures, though the court decided that “the measures to be indicated need not be identical to those requested”. 

The court rejected Israel’s argument that the ICJ did not have jurisdiction to hear the case and that South Africa’s case should be thrown out entirely (removed from the “General List”) because South Africa had not shown even a plausible case of genocidal intent. It also rejected Israel’s case that there was no urgency warranting the indication of provisional measures.   

South Africa had asked the court to order that Israel suspend its military operations in Gaza. The wording of the court’s order was that Israel must “take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention”. These acts are particularised in the order as killing Palestinians in Gaza, causing them serious bodily or mental harm, deliberately inflicting on them conditions of life calculated to bring about the physical destruction of Palestinians in Gaza as a group and imposing measures intended to prevent births within the group. 

Israel is ordered to ensure its military does not commit any of these acts — “with immediate effect”. 

“The court recalls that these acts fall within the scope of Article II when they are committed with the intent to destroy in whole or in part a group as such,” said the order. 

In coming to its conclusion that there was a plausible case for the protection of Palestinians' rights under the Genocide Convention, the court said Palestinians constituted a distinct national, ethnical, racial or religious group and that the military operation by Israel had resulted in a large number of deaths and injuries.

The court referred to statements by UN officials and UN reports that “Gaza has become a place of death and despair” and that “an unprecedented 93% of the population in Gaza is facing crisis levels of hunger ... Starvation, destitution and death are evident”. 

The court also referred to “a number of statements made by senior Israeli officials” and gave examples including when defence minister Yoav Gallant said on October 9 that he had ordered “a complete siege” on Gaza and that there would be “no electricity, no food, no fuel”. 

Since the court found that some of the rights asserted by South Africa were plausible, it went on to say that there was a link between the rights claimed by South Africa “that the court has found to be plausible and at least some of the provisional measures requested”.

The court also ordered Israel take “immediate and effective measures” to prevent and punish the direct and public incitement to commit genocide, to enable the provision of urgently needed basic services and humanitarian assistance and to prevent the destruction and ensure the preservation of evidence related to allegations of genocidal acts and other breaches of the convention. 

It ordered Israel to report to court within a month “on all the measures taken to give effect to its order” and South Africa will be given an opportunity to comment on it.

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