The International of Justice (ICJ) at The Hague declared in its preliminary ruling on January 26, 2024, that Israel as an occupying force must act to stop its armed forces from carrying out acts of genocide, prevent and punish those who incite genocide, and make sure that humanitarian aid to Gaza is increased. During the war that broke out in reaction to the rocket assault by Hamas on October 7, 2023, South Africa accused Israel of perpetrating genocide against Palestinians in Gaza, killing more than 28,473 Palestinians, including more than 10,000 children in Israel’s counter-disproportionate bombing, 1200 individuals died in the attack itself. Israeli soldiers struck 14 homes and three mosques in Rafah on February 12, 2024, the day South Africa made their request, resulting in several casualties and forcing hundreds of displaced families to evacuate. Israel’s military operation in Gaza resulted in over 70% of the deaths. Over 25% of the population is in danger of starving due to humanitarian crisis that has forced over 80% of the people into migration and displacement. Although South Africa had wanted the ICJ to impose an immediate ceasefire, which it did not, the verdict of the International Criminal (ICC) did not declare Israel guilty of having committed genocide; nonetheless, such a determination may take years, and ICJ lacks the enforcement mechanism. Nevertheless, the ICJ continued to find Israel’s military operations and leaders’ remarks to be highly concerning. The 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) appears to apply to at least some of the acts and inactions that South Africa alleges Israel perpetrated in Gaza, as per the ICJ. However, Israel does not want the application of the Genocide Convention; instead, it wants to be tried under International Humanitarian Law (IHL), containing the set of rules that govern how war is fought and forbid purposeful damage to non-combatants.
What is the Genocide Convention?
Raphael Lemkin, a Polish lawyer, initially used the term “genocide” in his 1944 book Axis Rule in Occupied Europe. It comprises the Latin suffix cide, which means murdering, and the Greek word genos, which means race or tribe. Lemkin coined the phrase in reaction to past episodes in the history of targeted activities intended to destroy certain groups of people, as well as to the Nazi policy of systematic slaughter of Jews during the Holocaust. Raphael Lemkin later spearheaded the effort to get genocide officially acknowledged and criminalized as a global offence. The Genocide Convention states that genocide is a crime that can occur during both times of peace and conflict. The Convention’s definition of the crime of genocide has been generally accepted on a national and international scale, with the ICC’s Rome Statute from 1998 serving as one example.
Governments signed the Genocide Convention that forbids governments from carrying out genocide following World War II and the Holocaust. Furthermore, it indeed created the term “genocide” in many senses. It also established the notion that the whole or partial annihilation of a group is a crime in and of itself and that this is one of the most horrible crimes that can be done. It’s easy to forget that until shortly before the Genocide Convention was implemented, it was not recognized as a crime. Furthermore, the Genocide Convention designates some actions as acts of genocide, such as the complete or partial destruction of a group. It also necessitates proving that those actions were carried out to wholly or partially destroy the group in question. Furthermore, because of the specific-intent requirement, it is exceedingly difficult to prove genocide because one must demonstrate not only that a large number of people have been killed or that a particular group of people have had their lives severely restricted, if not destroyed, but also that the genocide was intended and carried out.
Credible Accusations under the Genocide Convention
Given the amount of evidence that has been demonstrated, it is reasonable to conclude that Israel has committed acts that might plausibly be considered violations of the Genocide Convention. These activities include both genocidal acts and perhaps incitement to commit genocide. Although they haven’t concluded that genocide has occurred, the situation is so severe that the ICJ must impose these temporary limitations. The ICJ is ruling that Israel, a state that was established following World War II to safeguard individuals who had witnessed the horrors of the Holocaust, is facing credible accusations that it violates the Genocide Convention. The Convention was primarily established to denounce and work towards the prevention of genocides such as the Holocaust from occurring in the future. Thus, this is a significant choice. South Africa requested temporary measures in this case, and since the ICJ lacks access to the evidence, it cannot decide whether the merits of the applicant’s claims have been established. Instead, it will decide on the provisional measures. It just has the two sides’ arguments in front of it. Its only task is to determine whether the accusations made have a reasonable chance of being a violation of the Genocide Convention and, if so, whether the situation is serious enough for the ICJ to take action to protect its ability to decide the case on its merits, which is required to protect the rights at stake in the litigation.
Determining the Rationale and Merits
The ICJ concluded that Israel is headed towards genocide. The decision was as good as could be hoped for, or at least as good as could be expected. It was determined, massively, and definitively. The ICJ dismissed all of Israel’s defences, citing the military’s actions—many of which were captured on camera—and the statements made by Israel’s commanders as indisputable evidence. The ICJ serves yet another example of our era’s helplessness. While our institutions can identify genocide when they witness it, they are ill-equipped to deal with the most severe crimes. The ICJ did not impose—and probably could not—substantial penalties to put an end to the mass murders it has uncovered. In reality, the Israel Defence Force (IDF) struck Khan Younis’ Nasser Hospital just hours following the decision. However, the rationale is that the allegations in the complaint will be carefully considered by the ICJ, which will take time since an ICJ case usually takes years to reach a ruling on the merits. In order to safeguard Palestinians, South Africa claims to have requested that the ICJ examine whether Israel’s proposal to expand its attack in the Gaza Strip into the heavily populated Southern city of Rafah calls for the use of further emergency measures. Israel announced its intention to increase the scope of its ground strike into Rafah, where over 1 million Palestinians have taken sanctuary from the onslaught that has destroyed a large portion of the enclave since Hamas rebels assaulted Israel on October 7, 2023. This would constitute a grave and irreversible violation of the January 26, 2024, court order as well as the Genocide Convention.
In such a circumstance, the issue arises; however, if the case drags on for years before a judgment is made, it’s possible that all the harm has already been done, and it will be too late to stop what the applicants and plaintiffs are attempting to do. And it’s evident in the event of genocide. Suppose the ICJ grants a claim of ongoing genocide and states Okay, we’ll take your documents and hold off on deciding for two years. In that case, the genocide will have already occurred, and there is no way to turn back time or bring those who were affected back to life. Thus, this process aims to determine whether South Africa has sufficiently stated here for us to believe that, should these allegations prove true when the case moves forward, there may have been violations of the Genocide Convention. Additionally, are we convinced that the situation is severe enough to warrant the issuance of interim measures to protect the parties’ rights so that, when the matter comes down to it, those rights would not have been so severely violated as to render a merits decision that will have no real-world impact? We are thus in that very preliminary stage, which explains why they were able to conclude in just two weeks, just based on the parties’ arguments and without the inclusion of any form of a proof at all, as one might anticipate.
Framing the Question of Genocide
The ICJ operates according to its protocols. Individuals who are unfamiliar with the ICJ’s workings and are tuning in for the first time may not comprehend how the ICJ makes decisions or that what was going on here was a request for provisional measures, which is a specific procedural process that never involves the ICJ being asked to rule on the existence or absence of genocide. Even someone who listened to the arguments made when South Africa listed every occurrence that it claims to be a genocidal act would have thought, “Oh, this is asking the ICJ to rule that there has been genocide after all.” However, if you pay careful attention to those oral arguments, South Africa clarified that the ICJ was not required to decide whether or not genocide had been proven. All it needed to do was determine if there was sufficient evidence to draw the judgement that there may be and that a strong case had been presented for breaches of the Genocide Convention. This is significant because it is challenging to establish genocide. People may be underestimating the significance of this ruling because they believe it is evident that genocide is occurring here. Hence, it’s a bit of a gape to say that the accusations are credible.
Protection of Palestinians in Gaza
The ICJ draws several significant conclusions, and one of them is that acts taken against the Palestinians may violate the Genocide Convention since they may constitute acts that destroy the group in whole or in part. Since the Palestinians are a protected group under the Genocide Convention, and since a significant portion of them reside in Gaza, such acts may violate the Genocide Convention. The following query is: How can intent to commit genocide be proven? Circumstantial evidence of genocidal acts, which made it unbearable for the locals to live there, might be used to demonstrate intent. The ICJ also looks to Israeli authorities’ remarks to provide some proof that there may have been a particular purpose, even if it does take note of the many sorts of claims made regarding the living circumstances of residents in Gaza. They do not need to establish that it took place here. However, I believe that they included those remarks to make it apparent that the ICJ found sufficient evidence in both the application and the public record to raise the possibility that Israel may be planning to commit genocide.
The most challenging issue for South Africa to do right from the start was to demonstrate that there was a deliberate plan to entirely or partially annihilate the Palestinian community. Mainly because saying, “Look, we are not trying to destroy Palestinians as a group in whole or in part,” is one way Israel can and has defended it. We are attempting self-defence, and Hamas is to blame for innocent people getting in the path and dying as a result. However, we don’t specifically want to damage anything, either entirely or partially. Interestingly, the argument would be persuasive to a few judges; it won over only one of the seventeen judges, who were convinced that the evidence presented was insufficient to establish a case of genocidal intent. However, he ruled in favour of some- not all provisional measures along with the other sixteen parties, including the intriguing judge appointed by Israel. This suggests that he thought there was no quibbling about the sufficient allegations to support the notion that some of the acts alleged could, at the very least, amount to genocide, which includes both specific intent and genocidal acts and the same appeared like a startling discovery.
ICJ Jurisprudence in Ordering Ceasefire
In the Ukraine v. Russia case, Ukraine invoked the Genocide Convention to bring legal action against Russia. The case stated as follows: Russia had declared war on us, claiming it had the right to do so because we, the people of Ukraine, were committing acts of genocide in the country’s east. However, we counter that these claims are untrue, and they serve as the foundation for Russia’s invasion. As a result, we are asking the ICJ to rule that Russia’s invasion was illegal and violated international law. Thus, the ICJ stated in its interim orders that there is no credible evidence to support the accusation that Ukraine is committing genocide, and to the degree that Russia’s invasion has been authorized, it must halt the invasion to put an end to the alleged genocide because there was none in the first place. This is a very different sort of case, though, given that there is no meaningful disagreement about Israel’s right to self-defence against Hamas.
It is important to note that this issue is only taken before the ICJ under the Genocide Convention because of a clause stating that disputes about the Convention may be brought before the ICJ. The Geneva Conventions, a different body of law pertinent but not indeed in front of the ICJ, and the IHL are not at issue in this case. The ICJ’s position is that, while it will not impose a ceasefire, Israel must conduct its ongoing fight in a way that complies with the Genocide Convention by taking these particular actions. It outlines many more specific actions that Israel must do to defend itself. There has been no suggestion here that nations do not have the right to act in self-defence following Article 51 of the UN Charter. They can not do it in a way that would be against international law. The ICJ has recognized a new form of standing, which South Africa also invokes in this case. This form of standing means that if there is an obligation owed to all state parties to a convention like the Genocide Convention or the Torture Convention, any state that is party to that Convention can bring inaction in the ICJ if there is an alleged violation of that Convention and hold that state accountable. In Gambia v. Myanmar (2020), the Gambia brought this case against Myanmar, which was also brought under the Genocide Convention. Canada and the Netherlands v. Syrian Arab Republic (2023) was another case in which the ICJ found from the UN Commission of Inquiry on Syria that there were good reasons to think that the Syrian government tortured and ill-treated the people.
This is a reasonably revolutionary move on the part of the ICJ because it allows the applicant to bring the state accountable for its alleged acts of genocide in Gaza before the ICJ, even in situations where the applicant has no connection whatsoever to the events taking place. In this case, South Africa does not assert that it has any connection to the claimed acts of genocide in Gaza. The ICJ can then decide whether the state violates international law. This serves as a potent reminder that this is a new term for the ICJ, and is ready to carry out its task regularly. Furthermore, it is prepared to enter some pretty heated political circumstances and attempt to apply the rule of law, even in situations where you have states with strong supporters—Israel, of course, has strong backing in the US. It may also represent a significant advancement for the law as it provides a means of upholding international human rights responsibilities for which there was previously no apparent means of enforcement.
Grim Picture Ahead
Enforcing the ICJ ruling entails holding the state accountable for those actions, directing them to behave legally, determining that their actions are at odds with their treaty obligations, and providing precise instructions on how the state is to react. One conceivable response from Israel in this situation would be to downplay or ignore it. The next issue that will come up is how other states—and especially how the US—would react to that. Because even without a Security Council resolution, a judgement like this may have a reasonably significant impact on its own. South Africa is requesting that the court impose more sanctions on Israel, claiming that the country has already disregarded the ruling that was promulgated a few weeks ago. In the end, a proclamation that would save Palestinian lives is what South Africa is contending. Even if that doesn’t happen, states that are arming Israel in this conflict, especially the US, which is providing military support, ought to take serious notice of a ruling that there are reasonable allegations that Israel is violating the Genocide Convention in the manner that it is conducting this war. A choice may prompt them to consider whether continuing to provide Israel with military support would put them in breach of their legal duties. Therefore, depending on how other governments react to this judgement, it may still have a significant effect on Israel even if Israel is willing to disregard it.
Nafees Ahmad is a Ph.D. (International Refugee Law and Human Right), LL.M. (International Law), Associate Professor, Faculty of Legal Studies, South Asian University, New Delhi. Contact at: [email protected] https://orcid.org/0000-0003-1791-3060
