Thread by @MouinRabbani

THREAD: On 28 March the International Court of Justice issued a new ruling (“Order”) in the case known as Application of the Convention on the Prevention and Punishment of the Crime of Genocide in The Gaza Strip (South Africa v. Israel).

The ICJ’s ruling came in response to a new request by South Africa, submitted on 6 March, asking the Court “to indicate further provisional measures and/or modify its provisional measures indicated on 26 January 2024”.

The historic 26 January ruling had come in response to South Africa’s initial 29 December 2023 invocation of the Genocide Convention with respect to Israel’s conduct in the Gaza Strip.

By an overwhelming 15-2 majority the ICJ’s judges found that South Africa had plausibly accused Israel of violating its obligations under the Genocide Convention.

On this basis the Court announced that it would proceed to a full hearing of the case, which has yet to commence and will probably require several years before a final verdict is issued.

To ensure that no “irreparable harm” is inflicted while the ICJ considers the matter, the Court in late January set out a series of “provisional measures” required of Israel as well as other signatories to the Convention.

It additionally ordered Israel to report back within 30 days on compliance. Had the ICJ found South Africa’s case to be insufficiently persuasive, or Israel’s rebuttal convincing, it would have dismissed South Africa’s application, closed the file, and moved on to the next case.

As it stands, the state that presents itself as reparations for Germany’s campaign of extermination against Europe’s Jews, and which has weaponized the Holocaust to shield its policies from scrutiny and criticism,

is now indelibly associated with genocide as a perpetrator of the “crime of crimes”.

South Africa’s most recent application to the Court essentially argues that Israel’s refusal to implement the provisional measures ordered by the Court in January, and the continued deterioration of conditions in the Gaza Strip, require the Court to take further action.

It is not the first time South Africa has called upon the Court to take additional action. On 12 February, referencing “the developing circumstances in Rafah”, it filed an “urgent request” with the ICJ,

calling upon the Court to invoke its powers to issue additional provisional measures. In its response the Court disappointed not only South Africa but also those who insist the ICJ is a partisan institution.

Although it confirmed the assessment of United Nations Secretary-General Antonio Guterres than an Israeli ground invasion of Rafah “would exponentially increase what is already a humanitarian nightmare with untold regional consequences”,

the Court concluded that “the perilous situation demands the immediate and effective implementation of the [January] provisional measures … which are applicable throughout the Gaza Strip, including in Rafah, and does not demand the indication of additional provisional measures”.

In other words, the Court declined to go beyond what it had already pronounced in January, even as it again emphasized that “the State of Israel remains bound to fully comply with its obligations under the Genocide Convention”.

Fast forward to 28 March and the ICJ is singing a different tune.

Recounting the case thus far, the Court notes, without further comment, that it received both Israel’s report on its compliance with the January Order and South Africa’s comments on this report (neither of which have been made public).

It also summarizes South Africa’s 6 March application for additional measures and Israel’s response - both of which are available on the ICJ website.

The Court clarifies that, according to its statutes, it can only issue additional provisional measures (or modify or revoke existing ones) if it determines there has been a “change in the situation” that would justify doing so.

It also notes that, according to these same statues, the Court’s options are not limited to either accepting or rejecting those measures requested by South Africa.

Reviewing the evidence before it, the Court “observes that Palestinians in Gaza are no longer facing only a risk of famine [as it had noted in January] … but that famine is [now] setting in,

with at least 31 people, including 27 children having already died of malnutrition and dehydration".

“The Court [therefore] considers that the above-mentioned developments, which are exceptionally grave, constitute a change in the situation that within the meaning” of the court’s own rules.

It additionally notes that its existing measures ordered in January no longer “fully address the consequences arising from the changes in the situation” in the Gaza Strip, “thus justifying the modification of these measures”.

The Court notes it also has to satisfy two additional conditions. First, that there is a genuine risk of “irreparable harm” to the rights of the Palestinian people under the Genocide Convention, and second, “that there is urgency,

in the sense that there exists a real and imminent risk that such prejudice [i.e. irreparable harm] will materialize before the Court gives its final decision in the case”.

It speaks to the weakness of Israel’s report to the ICJ on its compliance with the provisional measures ordered in January, the weakness of its response to South Africa’s 6 March application for additional measures,

and the sheer savagery of its military operations in the Gaza Strip, that the Court determined that “the circumstances of the case require it” to act.

The ICJ ruling begins by repeating “the need for immediate and effective implementation of the measures” it ordered in January, “which are applicable throughout the Gaza Strip, including in Rafah”.

Israel’s non-compliance, in combination with the “catastrophic situation in the Gaza Strip”, led the the Court to unanimously order the following new measure:

“[Israel shall] Take all necessary and effective measures to ensure, without delay, in full co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance,

including food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements, as well as medical supplies and medical care to Palestinians throughout Gaza,

including by increasing the capacity and number of land crossing points and maintaining them open for as long as necessary”.

By fifteen votes to one, it additionally ordered Israel to “submit a report to the Court on all measures taken to give effect to this order, within one month”.

As expected, and consistent with precedent, the judges once again rejected South Africa’s request that the ICJ order a ceasefire. In doing so the Court made no determination on either the nature or legitimacy of Israel’s military operations in the Gaza Strip.

Rather, it stated that because a ceasefire order would only oblige states who are parties to the Genocide Convention, but not other belligerents, it “cannot” do so.

By 15-1, the ICJ judges did however order Israel to “[e]nsure with immediate effect that its military does not commit acts which constitute a violation of any of the rights of the Palestinians in Gaza” under the Genocide Convention,

“including by preventing, through any action, the delivery of urgently needed humanitarian assistance”.

It must have been a close call for Israel, because seven of the sixteen judges – one short of half – appended opinions that the Court should have endorsed South Africa’s ceasefire request.

They did so primarily on the grounds that that without a ceasefire the provisional measures ordered by the ICJ will remain ink on paper.

The seven judges may have been responding to the concluding paragraph of South Africa’s application, which reminded the Court that in 1993 “it declined to order additional provisional measures” in the Bosnia Genocide Case”,

and within two years “approximately 7,336 Bosnians in the so-called ‘safe area’ of Srebrenica had been slaughtered, in what this court retrospectively determined to have been a genocide”.

“South Africa fears that this application may be the last opportunity that this court shall have to save the Palestinian people in Gaza already dying of starvation".

Once again I found the separate opinion submitted by the German judge, Georg Nolte, to be the most interesting. As in his January opinion, he initially expresses skepticism about the measures proposed,

in this case because these in his view imply Israeli non-compliance and could therefore prejudice its position when the Court holds full hearings on the case.

Nevertheless, as in January, he nevertheless voted for the measures, this time citing “a qualitative change in the situation [since January] which is exceptional. These circumstances also reflect a plausible risk of a violation of relevant rights under the Genocide Convention”.

The only judge to vote against the measures was the one appointed by the Israeli government, Aharon Barak. (Under ICJ procedures, states that are party to a case but do not have a sitting judge are entitled to appoint one for that particular case).

Barak made his name as president of Israel’s Supreme Court, which has served, also during his tenure, as an organic part of the machinery of occupation. His opinion is of a piece with his numerous rulings deferring to the Israeli military and his government’s expansionist agenda.

As many have noted, the ICJ’s latest ruling will have no impact on the situation in the Gaza Strip. But it is nevertheless significant. It represents one more chink in Israel’s shield of impunity,

and makes it more difficult for Western states to continue providing Israel with an unlimited line of credit.

Already Ireland has indicated that it will intervene in the case, and propose that the acts constituting genocide be broadened to include the deliberate blocking of humanitarian aid.

In the words of its foreign minister, Micheál Martin, “First of all there needs to be accountability for what happened in Gaza, but secondly we want to influence the future conduct of war”.

Only in Ireland would a European center-right government be capable of taking a principled position on Palestine. END

Correction: should read: as a formally accused perpetrator of "the crime of crimes"