26 January 2024 , 12:51
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The International Court of Justice has declared that Israel may have committed some acts covered by the legal definition of genocide in Gaza – and cannot throw out a landmark legal case against it.
Delivering a preliminary decision , the ICJ's president Joan Donoghue said that at this stage the court does not need to decide if Israel has violated the genocide convention. Instead, it has to rule whether current acts appear to have fallen within realms of the violations. The court has confirmed that Israel has committed such acts.
Donoghue continued to say the court agrees that South Africa's claims of human rights violations are justified and that the case is urgent enough that provisional measures should be issued against Israel. These measures would force Israel to take some "effective measures: to prevent further genocidal acts taking place within Gaza. The ruling also orders Israel to take "effective measures" against the destruction of evidence of potential acts of genocide.
It must compile a report on its offensive against Hamas - which is thought to have killed more than 26,000 so far - within a month as the alleged “genocide” case continues. But the International Court of Justice fell short of ordering Israel to cease its assault on Hamas in Gaza, whilst saying it must take care in its actions.
Israel was ordered to take measures to avoid acts of “genocide” by the military within Gaza and to preserve any evidence that may be used in a genocide court case. In a humiliating ruling for Israel the International Court of Justice decided not to throw out South Africa’s legal claims it has committed “genocide” in Gaza.
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Israel launched its attack on Gaza after Hamas' October 7 massacre (AFP via Getty Images)But it stressed that whilst there may be a “genocide” case to answer Israel has not provably done it, although it must ensure measures are taken to avoid it. The legal case is likely to take many years to conclude but it can call for an investigation into the claims to stop to avoid further deaths and suffering among civilians.
Over a one hour ruling ICJ President Joan E. Donoghue, in the Hague, quoted Israel’s defence minister Yoav Gallant saying as war got underway, saying Gallant had said: “We have removed all restraints. We will eliminate everything.”
Judge Donoghue continued that Gallant went on to describe Hamas as comparable to Islamic State. After proceedings concluded today, the South African Government said that it welcomed the ICJ's decision.
Israel launched its massive air and ground assault on Gaza after Hamas militants stormed through Israeli communities on Oct. 7 killing some 1,200 people, mainly civilians, and abducting another 250. The offensive has decimated vast swaths of the territory and driven nearly 85% of its 2.3 million people from their homes.
More than 26,000 Palestinians have been killed, the Health Ministry in the Hamas-run enclave said on Friday. The ministry does not differentiate between combatants and civilians in its death toll, but has said about two-thirds of those killed were women and children.
A Palestinian man carries an injured boy as a result of Israeli attacks to Al-Aqsa Martyrs Hospital (Anadolu via Getty Images)The Israeli military claims at least 9,000 of those killed in the nearly four-month conflict are Hamas militants. UN officials have expressed fears that even more people could die from disease, with at least one-quarter of the population facing starvation.
Marieke de Hoon, an associate professor of international law at the University of Amsterdam, said she thinks the court is unlikely to throw the case out Friday since the legal bar South Africa has to clear at this early stage is lower than the one that would be applied for ruling on the merits of the accusation. "The standard... is not, has there been genocide? But a lower standard," she said. "Is it plausible that there could have been a risk of genocide that would invoke Israel's responsibility to prevent genocide?"
But De Hoon also does not expect the world court to order an end to Israel's military operation. "I think that they will shy away from actually calling for a full cease-fire, because I think they will find that beyond their abilities right now," she said in a telephone interview.
Provisional measures by the world court are legally binding, but it is not clear if Israel would comply with any order.Top Hamas official Osama Hamdan, meanwhile, said his group would abide by a cease-fire if ordered and would be ready to release the hostages it is holding if Israel releases Palestinian prisoners.
How the US - Israel's top ally - responds to any order will be key, since it wields veto power at the U.N. Security Council and thus could block measures there aimed at forcing Israel's compliance. The US has said Israel has the right to defend itself, but also spoken about the need for the country to protect civilians in Gaza and allow more aid in.
The genocide case strikes at the national identity of Israel, which was founded as a Jewish state after the Nazi slaughter of 6 million Jews during World War II. South Africa's own identity is key to it bringing the case. Its governing party, the African National Congress, has long compared Israel's policies in Gaza and the West Bank to its own history under the apartheid regime of white minority rule, which restricted most Black people to "homelands" before ending in 1994.
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