All eyes were on Friday on The Hague, in the Netherlands, where the International Court of Justice delivered a long-awaited judgment after being seized of allegations of genocide perpetrated against Palestinians living in the Gaza Strip. The president of the highest international court, American judge Joan Donoghue, read her decision and ordered Israel to comply with a series of precautionary measures aimed at avoiding further suffering for Gazans and in order to prevent any acts that could possibly be described as genocide.
What was commanded of Israel?
The Court issued six orders. Basically, Israel was required to “take all measures in its power” to prevent the commission of acts prohibited by the Convention on the Prevention and Punishment of the Crime of Genocide ( notably the murder, serious attacks on physical and mental integrity, and the imposition of living conditions likely to lead to the destruction of a group).
The Jewish state was ordered to ensure that its army did not commit any of these acts and to allow needed humanitarian aid into the Gaza Strip. The Jewish state must also “prevent and punish” incitement to commit genocide and preserve any evidence relating to allegations of genocide.
Is this a ceasefire order?
No, replies Marie Lamensch, project coordinator at the Montreal Institute for the Study of Genocide and Human Rights at Concordia University. The Court could have ordered it, but did not do so. Instead, she chose to prohibit Israel from certain acts, such as not killing or harming residents of the Gaza Strip. Which does not mean that the Jewish state is prevented from continuing any military operation, she explains, but it must take measures to protect civilians, not target them, and allow humanitarian aid to enter. “The Court could have gone much further. »
Is Israel committing genocide according to the Court?
She didn’t have to decide that question right now. “Such a conclusion could only be formulated by the Court at the stage of examining the merits of the present case,” it is written in the judgment.
The high court, however, ruled that it is “plausible” that certain Palestinian rights are not currently protected, including the right to be free from acts of genocide. This conclusion allows the Court to issue so-called “protective” orders. »
According to Mme Lamensch said Friday’s ruling means the court “sees signs” of genocide on the ground, which is also reflected in its order for Israel to withhold any evidence that could possibly support such a conclusion.
What is a precautionary measure?
It is in a way an injunction which aims to safeguard rights, pending a judgment on the merits of the case. A full trial will take place, but years may pass before a judgment is rendered.
The Court has the power to order such provisional measures when there is a “real and imminent” risk that irreparable harm will be caused to a group if nothing is done. In short, there must be urgency to act.
The Court ruled here that the damage could be irreparable. She considers that “the civilian population of the Gaza Strip remains extremely vulnerable. » She recalls that the military operation led by Israel after October 7, 2023 has so far caused tens of thousands of deaths and injuries and caused the destruction of homes, schools, medical facilities and other vital infrastructure, as well as massive population displacements.
She notes that this operation is “still ongoing” and that the Prime Minister of Israel announced in mid-January that the war “will last [it] many more months.” The Court adds that even today, many Palestinians in the Gaza Strip “do not have access to basic foodstuffs, drinking water, electricity, essential medicines or heating. »
In its decision, the Court describes this humanitarian situation as “catastrophic” and notes that it is likely to deteriorate further before it renders its final judgment. In short, there is definitely an emergency.
Is Israel obligated to comply?
In its decision, the Court recalled that its orders are “obligatory”, that is to say that they constitute real legal obligations for the countries. The decisions of the Court are final. However, she has no way of enforcing them. For example, it ordered Russia in 2022 to suspend its invasion of Ukraine, which did not put an end to the conflict.
Israel’s Prime Minister, Benjamin Netanyahu, has already suggested that he would not feel obliged to follow a court order.
The Court’s judgment is important, although above all symbolic given the Court’s lack of means to enforce compliance, believes Ms.me Lamensch. However, it can be used by states that want to put pressure on Israel to stop its murderous response.
Asking the UN Security Council to intervene and authorize the use of force is “possible in theory” but unlikely, particularly considering that the United States, an almost unwavering ally of Israel, there is a right of veto, reminds Mme Lamensch.