Lerato Mbhiza
The International Court of Justice (ICJ) has delivered its ruling on the emergency measures requested by South Africa in its genocide case against Israel over its war on the Gaza Strip.
The court said, among others, that Israel must take steps to prevent acts of genocide in Gaza but stopped short of ordering a ceasefire.
Israel has lost its bid for the ICJ to throw out South Africa’s case against it. Israel argued that the court does not have jurisdiction to adjudicate the matter. The court has ruled that it has. The court noted that there is a prima facie case of genocide which means Israel is suspected of genocide.
Judge president Joan E. Donoghue detailed the context of the case, which focuses on the military operation launched against Gaza by Israel, after the militant and political group Hamas murdered 1 200 people and abducted 240 others in a surprise October 7 attack on Israel.
Donoghue stressed that the ICJ is mindful and concerned about the immense human suffering in Gaza, where over 25000 people have been killed since the conflict began
She addressed whether the ICJ has the jurisdiction to hear South Africa’s case and whether there is a legally defined dispute between South Africa and Israel over the situation in Gaza.
In other words, for the ICJ to have a legal basis to decide a case related to alleged violations of the Genocide Convention, it needs to be satisfied that – at the time that the case was lodged – there was a legally defined dispute between the countries involved.
She cited the Article IX of the Genocide Convention, to which both itself and South Africa are parties, makes the ICJ’s jurisdiction in a genocide case “conditional on the existence of a dispute relating to the interpretation, application or fulfilment of the Convention”.
That article further states that the relevant date for determining the existence of such a dispute is the date on which the relevant application is submitted to the Court.
Donoghue added that the ICJ has found that there is a genuine dispute between Israel and South Africa and therefore the ICJ has jurisdiction to hear the case.
She says the ICJ has also found that certain of the acts and omissions that South Africa complains of are capable of falling under the Genocide Convention. The Court rejected Israel’s argument that South Africa’s case against it should be removed from the court’s roll.
Du Plessis stressed that the rights of Palestinians in Gaza “are immediately and urgently in need of protection because of the ongoing denial by Israel of the conditions necessary for life”.
Donoghue also stressed that the ICJ only needs to find that the rights of the Palestinian people in Gaza, which South Africa asserts must be protected, are plausible – and then lists the alleged acts by Israel that South Africa argues are genocidal.
Donoghue further argued that: “Where the international community has failed Palestinians for so long, despite Israel’s wilful defiance of Palestinians’ rights, South Africa turns to this Court seeking to protect the core rights of Palestinians in Gaza to be protected from acts of genocide, attempted genocide, direct and public incitement to genocide, and complicity in and conspiracy to commit genocide.
“As the Court knows, the Convention prohibits the destruction of a group, or part of that group, including through killing, causing serious bodily and mental harm, and inflicting conditions of life calculated to bring about the group’s physical destruction”.
The ICJ has the power to indicate provisional measures such as the suspension of Israel’s military operation in Gaza “if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused before the Court gives its final decision”
The ICJ has the power to indicate provisional measures such as the suspension of Israel’s military operation in Gaza “if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused before the Court gives its final decision”
The judges have not ruled on the merits of the genocide allegations, which may take years to decide.
Since October 7, Israel’s military campaign has killed at least 26,083 people and wounded 64,487 others, according to officials in Gaza. Thousands more are missing under the rubble, most of them presumed dead.
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