RADAR

NO CEASEFIRE, BUT SOUTH AFRICA WINS SUBSTANTIVE RIGHTS MEASURES IN THE GAZA GENOCIDE CASE

The International Court of Justice (ICJ) ordered Israel to stop killing and harming people in Gaza and to report provisional measures to the ICJ and South Africa by 26 February. The ICJ verdict, issued on Friday 26 January, becomes a moral victory for South Africa whose legal team led the international community in a peace bid for the Palestinian people.

BY FERIAL HAFFAJEE | DAILY MAVERICK

IT TOOK ICJ President Judge Joan E Donoghue less than an hour to order a decisive turn in what the Court agreed is the “death and despair” haunting Gaza.

A majority of 15 and 16 judges on a bench of 17 granted most of the measures requested by South Africa to prevent a rising genocide in Gaza and the rest of Palestine. However, it stopped short of the most important —ordering a ceasefire in a three-month-long war. The Court accepted— while accurate figures are not available—that the war had caused the deaths of 25 700 people, most of whom are women and children.

More than 63 000 people had been injured, while over 300 000 homes (the majority of Palestinian housing stock) had been destroyed.

While the ceasefire request failed, the Court sought to bind Israel’s hands, ground its jets and effectively empty the bullet chambers of its guns with its order, provided Israel accedes to the Court’s order.

The Court ordered Israel to:

• Take all measures to prevent killings, severe mental and bodily harm, and cease preventing care during births in the (Palestinian) group;
• Take steps to ensure the military forces do not cause the above acts (this may be tantamount to a ceasefire);
• Take steps to limit the adverse conditions of life in the Gaza Strip (this is to allow humanitarian aid to flow freely and to stop communications and other blockades); and
• To submit a report to the Court by 26 February on progress and that this report will be shared with South Africa.

International Relations Minister Naledi Pandor said the effect of the order was tantamount to a ceasefire, but Israel disagreed in first reactions.

Judge Donoghue said the order is binding. The jury is out on whether Israel will accede because it has historically ignored international UN resolutions to stop international humanitarian laws in Palestine.

The order was made to preserve the future rights of Palestinians (once the substantive genocide case is heard) and to stop the ongoing killings and humanitarian disasters unfolding.

The Court agreed with South Africa’s argument that there was a plausible case of genocide to be heard but made it clear in numerous parts of the order that it made no finding on whether there was an ongoing genocide.

Judge Donoghue quoted various heads of UN agencies who found that Israel’s operations were “causing massive civilian casualties and displacement”.

“The court is acutely aware of the extent of the human tragedy and concerned by ongoing loss of life,” said Donoghue in her opening statement.

SA Jurisdiction

By a substantial majority, the ICJ found that South Africa had a prima facie case and jurisdiction to bring the case. Israel had sought to have the case thrown out. The Court reaffirmed that a ‘common interest’ in preventing genocide applied from ‘one to all’ parties to the 1948 Genocide Convention, regarding which SA ought to order.

The Court agreed with UN statements that a substantial proportion of Gaza’s two million people would carry lifelong scars and had been impacted by the war. It quoted UN agencies who had said: “An entire generation of children is traumatised and will take years to heal”. It also accepted UN data, which showed a looming famine in Palestine, with 93% of people going hungry and most not having access to potable water.

The ICJ also appeared to accept South Africa’s argument on the genocidal intent of Israel. It said that statements by Israeli leaders, including its President Isaac Herzog, dehumanised Palestinians.

The Israeli Attorney-General belatedly announced an investigation into these statements. While welcoming this, the Court said it was still sufficient to conclude that at least some of the rights sought by SA are plausible.

Ferial’s View

The preventive measures ordered should bring succour to Palestinians still dying in scores every day. It should open up humanitarian corridors because the Court has ordered a short-term return date for a progress report on 26 February.

The most important outcome is the fact that a genocide case will be heard, likely for years. This means Israel’s allies will think several times before supplying arms and turning a blind eye to its human rights abuses.

Impunity is deep in the world, and while the debate will now be on how much effect the court order will have, at least for today, the rights of peace have vanquished the impunities of war.