Court stops short of ceasefire call but lets genocide case stand

28 January 2024, The Age & Sydney Morning Herald / Reuters, by Stephanie van den Berg Bassam Masoud

The World Court ordered Israel to prevent acts of genocide against the Palestinians and do more to help civilians, although it stopped short of ordering a ceasefire as requested by the plaintiff, South Africa.

While the ruling yesterday denied Palestinian hopes of a binding order to halt the war in Gaza, it also represented a legal setback for Israel, which had hoped to throw out a case brought under the genocide convention established in the ashes of the Holocaust.

The court found that there was a case to be heard about whether Palestinian rights were being denied in a war it said was causing grievous humanitarian harm. It also called for Palestinian armed groups to release hostages captured in the October 7 attacks on Israel that precipitated the conflict.

The Palestinian Foreign Ministry said the decision was a welcome reminder ‘‘no state is above the law’’. Senior Hamas official Sami Abu Zuhri told Reuters it would contribute to ‘‘isolating the occupation and exposing its crimes in Gaza’’.

Israeli Prime Minister Benjamin Netanyahu welcomed the ICJ’s decision not to order a ceasefire, but rejected the claim of genocide as ‘‘outrageous’’ and said Israel would continue to defend itself. Israel says it makes the utmost efforts to avoid civilian casualties.

Israel had sought to have the case thrown out when South Africa brought it to the International Court of Justice (ICJ) this month under the legal principle that genocide is such a grave crime that all countries are duty-bound to prevent it.

Pretoria accused Israel of stateled genocide in its offensive, begun after Hamas militants stormed into Israel killing 1200 and kidnapping more than 240.

It asked the court to grant emergency measures to halt the fighting, which has killed more than 26,000 Palestinians and displaced the majority of the population in a more than three-month campaign of intensive bombardment.

The ICJ judges ordered Israel to take all measures within its power to prevent its troops from committing genocide, punish acts of incitement, take steps to improve the humanitarian situation and report back on its progress in a month.

It did not decide the merits of the genocide allegations, which could take years. Although the ruling cannot be appealed, the court has no mechanism to enforce its decision.

In reading out the decision, ICJ president Judge Joan Donoghue described the plight of Palestinians in Gaza, singling out harm to children and quoting descriptions of the humanitarian emergency from UN officials. This, she said, justified the court’s decision to take emergency action to prevent irreparable harm. She also read out calls from Israeli officials for a harsh campaign, which she said justified the court’s order to Israel to punish people guilty of incitement.

Israel called South Africa’s allegations false and ‘‘grossly distorted’’. It says it has acted in Gaza in self-defence against a foe that attacked first, and blames Hamas for harm to civilians for operating among them, which the fighters deny.

South Africa hailed the court order as a ‘‘decisive victory’’ for international rule of law and both it and the European Union said Israel must implement it immediately.

In Gaza, the war has entered a particularly destructive phase, with the heaviest fighting in weeks now taking place in crowded areas jammed with hundreds of thousands of people who fled from earlier fighting elsewhere. Displaced Palestinians at a shelter in southern Gaza said they felt let down by the lack of a ceasefire order from the court, but also hopeful the ruling would bring accountability.

‘‘What happened was a victory,’’ said Mustafa Ibrahim, a human rights activist.

In Israel, Jonathan Dekel-Chen, whose son is being held hostage in Gaza, said he was encouraged by the ICJ’s call for the release of the captives, which he said reflected a largely neglected point that the Hamas assault sparked the war.

The militants released a video on Friday featuring three female hostages calling for an end to the conflict. Israel has said such videos amount to psychological abuse.

Israel kept up its bombardment of the main southern city of Khan Younis, reporting ‘‘intensive battles’’ and strikes on dozens of Hamas fighters and infrastructure from the air and ground.

Israel said it had discovered some 200 tunnel shafts and destroyed more than 130 militant infrastructure sites in its latest operations, as well as killing ‘‘numerous militants’’.