By Susan Nicholson
THE BACKGROUND
Since the landmark ruling by the International Court of Justice on January 26, 2024 that at least some of Israel’s actions in Gaza are plausibly described as genocide (South Africa v. Israel), South Africa has returned to the ICJ on 3 occasions seeking provisional orders to protect the Palestinian people in Gaza. Provisional orders are the Court’s way of dealing with the fact that the targets of a genocide may suffer “irreparable harm” before the time the Court reaches a final decision on whether genocide has actually occurred, a process that can take years.
In its most recent application to the ICJ on May 10, South Africa focused on Israel’s ongoing military assault on Rafah. By attacking Rafah, South Africa argued, Israel was attacking the last refuge in Gaza for human habitation and public services, including medical care, for over 1.2M forcibly displaced Palestinians, half of them children. As South Africa put it, “Israel is attacking the only remaining area of the Strip that has not yet been substantially destroyed by Israel. With Rafah’s destruction, the destruction of Gaza itself will be complete.”
By the time of South Africa’s oral argument before the Court on May 16, Israel had already ordered 600,000 people to evacuate Rafah for areas South Africa described as “profoundly unsafe.” As South Africa informed the Court, Israel “had no plan in place to accommodate the hundreds of thousands of Palestinians ordered to flee Rafah – just like it had no plan to accommodate those forced to flee as a result of previous evacuation orders.”
For the sake of the very survival of future Palestinian generations in Gaza, South Africa asked the Court to order Israel to immediately stop its military offensive in Rafah.
The Court’s ruling came only a week later, on May 24. In that ruling, the Court concluded that the intensification of Israel’s military campaign in Rafah, together with Israel’s evacuation orders which now impacted over 800,000 Palestinians sheltering in Rafah, entailed the risk of “irreparable harm” to the Palestinian people in Gaza.
While duly noting Israel’s counter arguments, the Court declined to buy them. “The Court is not convinced,” it wrote, “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 Gaza Governorate, are sufficient to alleviate the immense risk to which the Palestinian population is exposed as a result of the military offensive in Rafah.”
THE ORDER
Besides reaffirming all its previous provisional orders, the ICJ issued 4 new ones:
- Immediately halt its military offensive in the Rafah Governorate
- Keep the Rafah Crossing open for unhindered provision of humanitarian aid
- Ensure unimpeded access to UN fact-finders investigating allegations of genocide
- Report to the Court within 1 month of actions taken to carry out these orders.
The decision on each of these 4 orders was nearly unanimous (13-2), including the judges from France, Australia, Germany, and the US. Only the Ugandan and Israeli judges dissented. For those who may be surprised by the vote of the US judge, the judges are expected to reach their conclusions independently, and not as representatives of the countries from which they come.
The 4 orders are legally binding (“The Court recalls that its orders on provisional measures…have binding effect and thus create international legal obligations for any party to whom the provisional measures are addressed”). As a signatory to the Genocide Convention, Israel has accepted the Court’s jurisdiction over disputes between it and other states relating to genocide, and thus has no legal basis on which to shirk the Court’s ruling.
IMPACT ON ISRAEL
While the Court’s orders are legally binding on Israel, the ICJ has no enforcement power if Israel chooses to defy them. Which it did. Less than 48 hours after the Court’s order to immediately halt its offensive on Rafah, Israel dropped likely US-made bombs on an encampment of displaced civilians in Rafah, killing at least 45 civilians and injuring 249.
Algeria subsequently proposed a resolution to stop the Rafah offensive at the UN Security Council, which does have the power to enforce the ICJ order. The resolution, however, was characterized by the US as “not helpful,” and faces the likelihood of a US veto if it comes to a vote.
It would be a mistake,however, to underestimate the broader impact of this latest ICJ ruling. A panel of 3 judges at the International Criminal Court is currently considering the ICC Prosecutor’s request for arrest warrants against Israeli Prime Minister Netanyahu and Defence Minister Gallant on grounds of war crimes and crimes against humanity. The spectacle of Israel’s blatant defiance of an ICJ order based on a plausible genocide increases the likelihood the warrants will be issued. Once issued, all 124 ICC member states will be required to arrest Netanyahu and Gallant if they enter their territory and transport them to The Hague for trial.
Other impacts are emerging as well. For example, on May 27 EU foreign minister unanimously agreed to call for a meeting with Israel to discuss its noncompliance with the ICJ decision, and review its compliance with its human rights obligations under the EU-Israel trade deal.
IMPACT ON THE US
This latest decision by the ICJ significantly heightens the risk that President Biden and other US officials will at some future point find themselves in the dock at the International Criminal Court for the crime of complicity in genocide. The ICJ has now forbidden any further Israeli offensive in Rafah in order to protect the Palestinians from irreparable harm caused by plausibly genocidal actions. Should the ICJ ultimately determine that Israel’s actions were indeed genocidal, the President’s decision to continue to arm Israel for operations which do not cross his own infinitely moveable red lines constitutes a clear case of complicity in genocide.
– Susan Nicholson is a retired health law attorney.
