Clearing the smoke over Gaza

There is smoke over the Gaza Strip. We’ll see later if there really is a fire. In the meantime, Israel must take immediate steps to prevent the fire and extinguish what appears to be flames.

This is how we could summarize in a few lines the decision that the International Court of Justice (ICJ) rendered Friday in The Hague in the case between South Africa and Israel. Nelson Mandela’s country claims that the Jewish state is committing genocide against the Palestinians in the Gaza Strip. Israel, for its part, says the accusations are not only “baseless” but also “false and scandalous.”

The Court, which rendered its first decision in this case since it was seized on December 29, does not conclude for the moment that the worst crimes against humanity are being perpetrated at this time in the enclave. Palestinian. That wasn’t the question she had in her hands. That will come later. In the past, the same court took up to ten years to decide on the merits of a question of genocide in Bosnia and Herzegovina. You don’t have to hold your breath.

No, the questions the Court answered on Friday were of a different order, but they are no less important. After determining that the ICJ had the authority to hear the case put forward by South Africa, the panel of 17 judges considered whether it was “plausible” that the rights protected by the Genocide Convention could be evoked and whether it was necessary to take “provisional measures” if “irreparable harm” risks being caused to these rights.

The legal wording is a bit indigestible, but it could be translated as follows: is there reason to be sufficiently concerned about the actions of Israeli actors towards the Palestinians in the Gaza Strip to dictate immediate protections in order to to prevent genocide from being committed? To these questions, the vast majority of judges answered yes and prescribed six “provisional measures” to order Israel to review its military operations in Gaza immediately.

The Court notably asks Israel to ensure that it takes all necessary means to prevent any genocidal act from being committed in the Gaza Strip, to “prevent and punish” public incitement to genocide, to allow basic services are restored and humanitarian aid arrives safely as well as to protect evidence that could be used in a trial for genocide. It also orders the Israeli state to provide a report on all the precautions adopted within a month.

The Court also addresses Hamas and orders the Islamist movement, which is in control of the Gaza Strip, to immediately and unconditionally release all the hostages.

These directives are binding, even if the Court does not have police or armed forces to enforce them.

The most fervent supporters of the South African approach hoped that the Court would order a ceasefire as it did against Russia barely a year ago in a comparable case opposing the immense Nordic country to Ukraine.

This time, the Court does not go that far, but it comes a little close. By the band. It is difficult to see how services to citizens could be restored and aid delivered to the Gazan population without stopping the bombings and without major changes in the modus operandi of the Israeli army. Even without lifting the “complete siege” imposed on the entire Gaza Strip.

The reaction of the Israeli government was a rebuff on Friday after the announcement of the decision by the chief judge of the ICJ, the American Joan Donoghue.

Defense Minister Yoav Gallant said Israel did not “need lessons on morality to distinguish between terrorists and the civilian population of Gaza.” Ironically, in its decision, the Court noted a “dehumanizing” quote in which the same minister, by claiming to fight “human animals,” blithely mixed Hamas fighters with the entire population of Gaza.

It is clear that this ruling from the highest court of the United Nations, which falls on the eve of the International Day dedicated to the memory of the victims of the Holocaust, is difficult to swallow in Israel. The anger aroused by the barbaric Hamas attacks on October 7, which left 1,200 people dead, left deep marks in all layers of Israeli society and created significant blind spots in the Israeli response.

This unprecedented military response, accompanied by inflammatory statements from senior Israeli leaders, left tens of thousands dead and injured, according to reports from Gaza health authorities. It forced more than a million civilians, already deprived of the essentials, to flee their homes without having a safe place to shelter. And all this while the majority of the enclave’s infrastructure – including hospitals – is destroyed or damaged. The United Nations now estimates that more than 90% of Gazans are at risk of starvation.

What does the decision of the International Court change in all this? This is a warning shot in the heavens of international law. To warn both Israel and its closest allies. That includes Canada.

“Canada is receiving a warning that Israel may be committing genocide,” Marina Sharpe, a professor of international law at the Collège Militaire de Saint-Jean, told me. All countries that are signatories to the Genocide Convention must prevent and punish genocide. This decision restricts the possibilities of supporting Israel,” she says, adding that countries that turn a deaf ear could themselves expose themselves to legal proceedings.

In other words, at the moment, we do not know beyond any doubt whether there is fire in the Gaza Strip, but we have to take the smoke very seriously.