Israel and the ICJ
JVL Introduction
Israel’s doublespeak never ceases to amaze. Chutzpah squared!
The ICJ orders Israel to cease its operation in Rafah because they “may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.”
Israel says it has no case to answer as IDF operations never involve genocide.
So it’s OK for Israel to continue doing what it is doing. Only please make sure to call it “self-defence”.
This line of reasoning is encapsulated in Judge Barak’s dissenting opinion:
“I find myself unable to vote in favour of the operative clause of today’s Order, because the military operation does not plausibly raise questions under the Genocide Convention. In particular, there is no evidence of intent.”
No evidence of intent? Goodness me. Those Israeli leaders were only joking when the made their statements of intent, or when turning a blind eye while right-wing mobs attack and destroy food aid trucks.
Also included below is a Lawyers for Palestinian Human Rights briefing paper, the Conclusions of the ICJ Report on Rafah, 24th May 2024, and a link to a video of the South African presentation to the Court.
RK
Welcome to your Israel briefing from the Jewish Chronicle.
Sunday May 26
Black is white because we say so…
[This heading is JVLs]
Israel says that Friday’s “emergency ruling” by the International Court of Justice (ICJ) doesn’t rule out Rafah operations. The ICJ ordered Israel to: “Immediately halt its military offensive, and any other action in the Rafah governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.”
Israeli officials responded by suggesting that the ruling was irrelevant, as IDF operations never involve genocide, this one wil be no exception, and therefore it can continue. National Security Adviser Tzachi Hanegbi said: “What they are asking us is not to commit genocide in Rafah. We did not commit genocide and we will not commit genocide.” Hanegbi also asserted: “According to international law, we have the right to defend ourselves and the evidence is that the court is not preventing us from continuing to defend ourselves.”
LPHR statement on the International Court of Justice order upon Israel to immediately halt its military offensive on Rafah
Today’s exceptionally significant Order by the International Court of Justice (ICJ) against Israel to immediate halt its military offensive on Rafah must now be followed by tangible action from all governments and UN bodies to ensure Israel’s full compliance.
In making its Order, the Court emphasised that the catastrophic humanitarian situation in the Gaza Strip has continued to deteriorate despite its previous legally binding orders of 26 January 2024 and 28 March 2024. It noted that since Israel began its military offensive on 7 May, nearly 800,000 Palestinians have been displaced from Rafah as at 18 May 2024, and crucially asserted it is:
“not convinced that the evacuation efforts and related measures that Israel affirms to have undertaken to enhance the security of civilians in the Gaza Strip, and in particular those recently displaced from the Rafah Governorate, are sufficient to alleviate the immense risk to which the Palestinian population is exposed as a result of the military offensive in Rafah.”
In addition to ordering Israel to “immediate halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part”, the ICJ ordered Israel to:
-
“Maintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance.”
-
“Take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide.”
-
“The provisional measures in its [ICJ] Orders dated 26 January 2024 and 28 March 2024 should be immediately and effectively implemented.”
The government of Israel has demonstrated its unwillingness to act in compliance with previous legally binding ICJ orders. It is therefore vital that all governments and UN bodies take necessary lawful measures to compel Israel’s immediate and full compliance. The fundamental rights of the extremely vulnerable Palestinian population of Gaza, including their right to life, gravely depend upon it.
APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT
OF THE CRIME OF GENOCIDE IN THE GAZA STRIP
(SOUTH AFRICA v. ISRAEL)
III. CONCLUSION AND MEASURES TO BE ADOPTED
-
- The Court concludes, on the basis of the above considerations, that the circumstances of the case require it to modify its decision set out in its Order of 28 March 2024.
- The Court recalls that, in accordance with Article 75, paragraph 2, of its Rules, when a request for the indication of provisional measures has been made, it has the power under its Statute to indicate measures that are, in whole or in part, other than those requested. In the present case, having considered the terms of the provisional measures requested by South Africa and the circumstances of the case, the Court finds that the measures to be indicated need not be identical to those requested.
- The Court considers that, in conformity with its obligations under the Genocide Convention, Israel must immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.
- The Court recalls that, in its Order of 26 January 2024, it ordered Israel, inter alia, to “take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of [the Genocide Convention]” (see paragraph 5 above). In the present circumstances, the Court is also of the view that, in order to preserve evidence related to allegations of acts falling within the scope of Article II and Article III of the Genocide Convention, Israel must take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide.
- The Court also considers that the catastrophic situation in Gaza confirms the need for the immediate and effective implementation of the measures indicated in its Orders of 26 January 2024 and 28 March 2024, which are applicable throughout the Gaza Strip, including in Rafah. In these circumstances, the Court finds it necessary to reaffirm the measures indicated in those Orders. In so doing, the Court wishes to emphasize that the measure indicated in paragraph 51 (2) (a) of its Order of 28 March 2024, requiring the “unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance”, necessitates that the Respondent maintain open land crossing points, and in particular the Rafah crossing.
- In view of the specific provisional measures it has decided to indicate, the Court considers that Israel must submit a report to the Court on all measures taken to give effect to this Order, within one month as from the date of this Order. The report so provided will then be communicated to South Africa, which shall be given the opportunity to submit to the Court its comments thereon.
- The Court recalls that its orders on provisional measures under Article 41 of the Statute have binding effect and thus create international legal obligations for any party to whom the provisional measures are addressed (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Provisional Measures, Order of 22 February 2023, I.C.J. Reports 2023, p. 29, para. 65).
- The Court underlines that the present Order is without prejudice to any findings concerning the Respondent’s compliance with the Orders of 26 January 2024 and 28 March 2024.
- In its Orders of 26 January 2024 and 28 March 2024, the Court expressed its grave concern over the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and called for their immediate and unconditional release. The Court finds it deeply troubling that many of these hostages remain in captivity and reiterates its call for their immediate and unconditional release.
-
- For these reasons, THE COURT,
(1) By thirteen votes to two,
Reaffirms the provisional measures indicated in its Orders of 26 January 2024 and 28 March 2024, which should be immediately and effectively implemented;
IN FAVOUR: President Salam; Judges Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi;
AGAINST: Vice-President Sebutinde; Judge ad hoc Barak;
(2) Indicates the following provisional measures: The State of Israel shall, in conformity with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in view of the worsening conditions of life faced by civilians in the Rafah Governorate:
(a) By thirteen votes to two,
Immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part;
IN FAVOUR: President Salam; Judges Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi;
AGAINST: Vice-President Sebutinde; Judge ad hoc Barak;
(b) By thirteen votes to two,
Maintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance;
IN FAVOUR: President Salam; Judges Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi;
AGAINST: Vice-President Sebutinde; Judge ad hoc Barak;
(c) By thirteen votes to two,
Take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide;
IN FAVOUR: President Salam; Judges Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi;
AGAINST: Vice-President Sebutinde; Judge ad hoc Barak;
(3) By thirteen votes to two,
Decides that the State of Israel shall submit a report to the Court on all measures taken to give effect to this Order, within one month as from the date of this Order.
IN FAVOUR: President Salam; Judges Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi;
AGAINST: Vice-President Sebutinde; Judge ad hoc Barak.
Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-fourth day of May, two thousand and twenty-four, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of South Africa and the Government of the State of Israel, respectively.
(Signed) Nawaf SALAM, President.
(Signed) Philippe GAUTIER, Registrar.
Vice-President SEBUTINDE appends a dissenting opinion to the Order of the Court; Judges NOLTE, AURESCU and TLADI append declarations to the Order of the Court; Judge ad hoc BARAK appends a dissenting opinion to the Order of the Court.
The ICJ ‘s (Judge Nolte inspired) questions to Israel – about what Israel has actually DONE to protect Rafah civilians from harm and to provide humanitarian assistance in the zones it sent them to – proved illuminating.
Israel said it did NOTHING MORE to help the civilians than give (misleading) information about “safe” evacuation routes and zones; and tell international relief agencies so THEY might supply the civilians’ needs for water, shelter, medical care etc.
Israel’s 8 page response to the ICJ can be summarised as “we don’t give a stuff about international law, we don’t know or care what will happen to the civilians, not our problem, mate”.
Anyone wanting to evaluate Israel’s response to the ICJ questions should read South Africa’s response to Israel’s note. South Africa demolished it.
Amongst other points, South Africa listed:-
– evidenced IDF attacks on Palestinians trying to use the “safe” evacuation routes and zones
– the desperately unsuitable conditions and absence of humanitarian support within the “sand dunes” evacuation zones; and
– Israel’s manipulation of facts about the size of the zones and their boundaries to suit different audiences (US and Palestinian).
Israel’s position on this is simple, and completely insane: that the only way Israel can succesfully defend itself against Hamas is to destroy Palestine and any hope the Palestinians might have of gaining for themselves an independent state. In other words, its self-defense strategy IS the committing of genocide . Israel is incapable of seperating the two concepts. Israel, pathologically fixed in its ways, will only alter them if and when some sort of force is applied. But so long as Israel continues to be enabled in its obfuscations and hypocrisies by the self-interest of certain others, Israel has no reason to stop, and the genocide will be complete before the world gets round to taking any measure which might actually prevent it. The IJC’s words must lead now to effective action: but I doubt that they will.
… And today (27.5.24), the IDF provided a “worked example” of Israel’s flagrant contempt for international humanitarian law, the world’s courts and common humanity.
Everyone who sanctioned or took part in that attack on displaced people living in tents within what Israel told them (and the world) was a safe evacuation area for civilians is guilty of war crimes and should be punished for them.
So many individuals and organisations within the government, armed forces and settler communities of Israel appear to have breached international humanitarian law it’ll be hard to find enough investigators, prosecutors and courts to try them before the alleged criminals die of old age. This urgent work will have to be shared out between all the countries that do respect both the rulings of the ICJ and ICC and the rights of all parties (victims, defendants and the public) within their investigative and judicial processes.
Perhaps Switzerland, Germany, Spain and Ireland might start the ball rolling by offering their investigative / prosecution services to the ICJ and ICC so defendants could be tried more promptly for alleged serious breaches of international humanitarian law?
The Israeli leadership is so confident that nothing will happen to them, they are laughing at the ICJ, they know that they have the full backing of the US because, if it stopped backing them Netanyahu could stop their Oil & Gas Corporations from extracting the Gas from under Gaza, losing them trillions of dollars.
Can the ICJ take Netanyahu and his Warmongering Cabinet to Court at The Hague without the backing of the US, we know it has vetoed UN resolutions against Israel for decades?