The United Nations International Court of Justice (ICJ) on Friday ordered Israel to take all necessary measures to prevent genocide against the Palestinian population in Gaza, but avoided taking the most forceful measure: calling for a ceasefire in Gaza . The judges did not order the Jewish state to end its military offensive in the enclave, which has already left more than 26,000 dead, but the demand that Israel allow “the provision of vital humanitarian assistance that the Palestinians urgently need” shows that the court, the highest judicial body of the United Nations, is “aware of the human tragedy that is unfolding in the region,” as its President Joan Donoghue stated.
The Hague-based court's decision follows the lawsuit filed at the end of December by South Africa at the International Court of Justice, arguing that Israel allegedly has “genocidal intentions” against the Palestinian population (more than 1% of the population of the Palestinian enclave). died due to the military invasion. To this end, he invoked the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, to which both countries are a party, and which must ensure the protection of the population of Gaza. South Africa also emphasized in its allegations that the events in Gaza “go beyond legitimate defense.” South Africa called for precautionary measures to prevent this situation of possible genocide. This Friday's decision only relates to the immediate measures required. It may take years before the core question – whether genocide was committed in Gaza or not – is resolved.
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The measures dictated by the International Court of Justice include the requirement that Israel ensure that its troops do not commit acts of a genocidal nature; that incitement to genocide be prevented and punished; and that the destruction of evidence of crime is avoided. In addition, Israel must inform the International Court of Justice within one month of its compliance with these measures.
In reading the decision, Donoghue made it clear that the court was fully aware of the context in which the events unfolded. Not just because of what Israel is doing in Gaza, but also because of the reasons it gives for launching its offensive after the Hamas attack on October 7th. For this reason, he has described the humanitarian situation in Gaza as “catastrophic” and said there is “urgency because of the risk of the situation getting worse,” but he also alluded to Hamas. In this context, the court called for “the immediate and unconditional release of the Israeli hostages who are in the hands of the Islamist militia and other groups.”
The TIJ decision was one of the most complex this court has faced and was surrounded by political tensions. “It carefully examined the allegations made against Israel by experts and United Nations officials to justify its actions,” Asier Garrido Muñoz, a former lawyer at the International Court of Justice, said by phone. Although there was no call for a cessation of hostilities, in his opinion “the judges went as far as the convention allowed them.” And the section on the entry of humanitarian aid into Gaza “shows that the court understands the terrible humanitarian situation of the Palestinian people.” Does this regulation isolate Israel? “The international pressure on Israel will be very strong from now on, so if it does not stop the military operation, it will at least carry it out in a completely different way than before,” he stressed.
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Although the precautionary measures are binding on the parties, it is possible that Prime Minister Benjamin Netanyahu's government will not comply with them because the court does not have the capacity to ensure compliance. Therefore, judges use the executive mechanism to ask Israel for reports on its activities. Article 41 of the ICJ Statute, in turn, states that it must inform the UN Security Council of the decision made. The council can remind Israel to follow the judges' orders or take its own action. It is not obliged to do the latter and in this case relies on the Charter of the United Nations.
The court consists of 17 judges: the 15 regular judges and two additional ad hoc judges, appointed by the parties to the dispute and not of their nationality. On the Israeli side, Aharon Barak, former president of his country's Supreme Court, intervened. He voted to allow humanitarian aid into Gaza and for Israel to prevent and punish incitement to genocide. Dikgang Moseneke, who was vice-president of the Supreme Court, intervened on the South African side.
From now on, if South Africa continues to hear this case, the merits will be examined and Israel may submit preliminary objections to the court's jurisdiction. Overall, a decision on whether there was a genocide in Gaza could take several years.
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