ICJ orders Israel to halt killing of Palestinians in landmark ruling
The International Court of Justice on Friday (26 January) ordered Israel to take immediate steps to limit Palestinian deaths in its assault on Gaza, in a major victory for South Africa that sets a legal precedent for future conflicts.
The court in The Hague did not order a ceasefire, nor did it rule on whether Israel has been guilty of genocide. But its ruling effectively orders Israel to radically change the manner in which it is carrying out military action in Gaza.
Reading out the judgement, the president of the Court, Joan Donoghue, said there was sufficient evidence of a dispute between Israel and South Africa and that at least some of the rights sought by South Africa to protect Palestinians from genocide were plausible.
Lawyers for the South Africa government accused Israel of committing genocide in Gaza in violation of the 1948 Genocide Convention.
Israel has described the allegations as a "blood libel", describing their military actions which have so far killed more than 23,000 people in Gaza as an act of self-defence following the 7 October terrorist attacks by Hamas that killed some 1,200 Israelis and seized more than 200 hostages.
Israel’s legal team, led by Britain’s Malcolm Shaw, had hoped to have the case thrown out as inadmissible, while government officials had expressed confidence that they would win the case ahead earlier this week.
The wider case is likely to run for several years. Legal experts say that South Africa’s legal team, which has been widely-praised for its professionalism and the quality of its legal arguments, faces a very high bar to prove that Israel has breached the convention and has done so with "the intent to destroy in whole and in part, a national, ethnical or religious group".
Donoghue also referred to statements on the war made by Israeli president Isaac Herzog and defence minister indicating that the Israeli Defence Force should act without restraint and describing Palestinians as "human animals" which, she said, "made South Africa’s case plausible".
She also pointed to "repeated warnings" by senior United Nations officials, including secretary-general Antonio Guterres to the UN security council that the healthcare sector of Gaza was collapsing, of the war leading to mass displacement of Palestinians and of a break down in public order that would be "potentially irreversible".
By a margin of 15 votes to 2, the judges on the ICJ (from 15 countries including Russia, China, the United States, France, Australia, Brazil, Germany, India, Lebanon and Morocco), ruled that Israel must take all measures to prevent the killing of Palestinians, and attacks on women, injuries. It also ordered that Israel must not destroy any evidence of crimes.
By a margin of 16-1, the justices ruled that Israel must also punish all incitements to commit genocide, and allow all humanitarian aid into Gaza.
Israel’s former Supreme Court chief Aharon Barak and Ugandan judge Julia Sebutinde were the dissenting voices on the court. Sebutinde voted against all the measures,
"The World Court’s landmark decision puts Israel and its allies on notice that immediate action is needed to prevent genocide and further atrocities against Palestinians in Gaza," said Balkees Jarrah of Human Rights Watch, an NGO.
The ruling is a major diplomatic triumph for South Africa and could also have implications for countries, including the US, the UK and Spain, which sell arms to Israel and could face arguments that they are legally complicit in the killing of civilians.
The EU has not taken an official position on the case though Slovenia has formally supported South Africa and Ireland and Belgium have indicated that they, too, are sympathetic. The German government dismissed the case as "meritless" earlier this month.
The African National Congress, the governing party in South Africa, has had a close relationship with Palestinian leaders dating back to its own liberation struggle against the apartheid regime.
"My message to the Palestinian people is not to give up hope. South Africa got over the apartheid oppression. They will overcome," Pretoria’s foreign minister Naledi Pandor told reporters following the court judgement.