The order of the International Court of Justice concerning Israel’s against the Palestinians of Gaza
By Riccardo Petrella, Professor Emeritus at the University of Louvain, Agora des Habitants de la Terre
There is no freedom
without rights, without justice
In its ruling of 26 January 2024 , the International Court of Justice, the highest international judicial institution, confirmed (paragraph 54 of the Order) that “the facts and circumstances referred to above are sufficient to conclude that at least some of the rights which South Africa claims and whose protection it seeks are plausible. This is true of the right of the Palestinians in Gaza to be protected against acts of genocide and related prohibited acts“.
In other words, the Court confirms that the military and other actions under way by Israel in the Gaza Strip (described in detail in paragraphs 46-53) can plausibly be considered to meet the criteria required by the Genocide Convention to be acts of genocide.
Moreover, since the Court’s power to indicate provisional measures is exercised only if there is urgency, that is to say, if there is a real and imminent risk that irreparable harm will be caused to the rights claimed before the Court has given its final decision (the present order is not the final decision on the matter), the Court stated (paragraph 66) that “ the plausible rights at issue in the present case, namely the right of the Palestinians of the Gaza Strip to be Gaza Strip to be protected against the acts of genocide and related prohibited acts referred to in Article III of the Genocide Convention and the right of South Africa to demand Israel’s compliance with its obligations under that instrument, are of such a nature that the damage to them could be irreparable“. According to the Court, the dramatic situation of the Palestinian population is such that the risk is real and imminent.
On the basis of these two findings, and in conclusion, the Court orders, in paragraph 74, the following provisional measures:
1) The State of Israel must….take all measures within its power to prevent the commission, against the Palestinian population, of the acts described above, in particular the following acts: a) murder of members of the group; b) serious bodily or mental harm to members of the group; c) deliberate infliction on the group of conditions of life calculated to bring about its physical destruction in whole or in part; and d) measures intended to prevent births within the group.
2) The State of Israel must ensure, with immediate effect, that its army does not commit any of the acts referred to in paragraph 1 above
3) The State of Israel shall take all measures in its power to prevent and punish direct and public incitement to commit genocide against members of the Palestinian group in the Gaza Strip
4)The State of Israel must take immediate and effective measures to enable provision of urgently needed basic services and humanitarian aid to alleviate the difficult living conditions of the Palestinians in the Gaza Strip
5) The State of Israel must take effective measures to prevent the destruction and ensure the preservation of evidence relating to allegations of the scope of Articles II and III of the Convention on the Prevention and Punishment of the Crime of Genocide committed against members of the Palestinian group in the Gaza Strip
6) The State of Israel must submit to the Court a report on all the measures it has taken to give effect to this Order within one month of the date of this Order”.
In its defence, on the day of the Court’s presentation of South Africa’s application …., the Government of Israel denied the legitimacy of the Court to take up the case and, asserting that Israel had intervened solely in self-defence, it proposed to consider the situation as a purely humanitarian matter.
Through its orders, particularly the first three, the International Court of Justice not only reaffirmed the Court’s full legitimacy to intervene, but also establishes that the situation really does constitute a series of acts of genocide and that the State of Israel must immediately take measures to stop and prevent the continuation of these acts by its army and other institutions in the country. To this end, order n.6, the State of Israel must submit to the Court a report on all the measures it has taken to give effect to this Order.
This intervention by the Court is of great importance because, first and foremost, it “renders justice”, i.e. it reaffirms the primacy of the law over any other “imperative”, reason or objective. While asserting, the legitimacy of its competences, obligations and powers, the Court reaffirms that the principles of justice must be respected without exception by any State, whatever it may be. No State, not even the most powerful (i.e. the United States !) can escape such an obligation. The Law exists, it has not disappeared . No one is above the Law.
We live in a world where the dominant classes have succeeded in making people to believe that they can do whatever they want wherever they want. That they can launch wars, disregard international treaties, and go on predating and destroying life on Earth with impunity, because the only rules that count are those established by them. They act as absolute masters of the Earth, exclusively in their own interests and, above all, to defend the security of their power. In this context, the Court’s order is a unique, remarkable act.
Some will say that the Court did not order an immediate and unconditional ceasefire. That is correct. They forget, however, that the order is not final, that it legally concerns only the actions of the State of Israel in Palestine, and that the indication of provisional measures in no way prejudges the nature and content of the final order. In addition, it is sufficient to read the first three orders to see that the application by Israel of the measures ordered by the Court would result in the cessation of its current military actions.
I am not a lawyer, but I believe that the Court has done an enormous service to the value of that great global public good that is Justice with a capital J. It has re-emphasised the fundamental role of the law, of the rules, for the proper functioning of society and the global community of life on Earth. Yet, as we know, the United States and the world’s other powerful states, Israel included, have systematically ignored and disregarded the UN resolutions, its many international treaties, the articles of the Universal Declarations of Human Rights and Peoples’ Rights.
By its order, the Court reminds us that life, and therefore Justice, is sacred. A wonderful act of love, especially for the younger generations.
