The war between Israel and Hamas: what should be remembered from the decision of the International Court of Justice on the Gaza Strip

His decision was eagerly awaited. The International Court of Justice (ICJ) on Friday asked Israel to do everything possible to “prevent” any possible act of “genocide” in the Gaza Strip and allow access for humanitarian aid. The decision was welcomed by South Africa, which referred the matter. to court.

What did the International Court of Justice say?

At this time, the Court has not commented on whether Israel is actually committing genocide. She made emergency rulings before considering the merits of the case, a process that could take years.

Among these emergency measures, the Court orders Israel to do everything to “prevent the commission of any acts falling within the scope” of the Genocide Convention. The Jewish state must also “prevent and punish” incitement to commit genocide and allow humanitarian aid in the Gaza Strip.

But contrary to what South Africa demanded in its request, the International Court of Justice made no mention of a ceasefire. According to lawyer and former legal adviser to UNRWA (the UN program for Palestine refugees) Yohan Sufi, she will not be able to do this. “First of all, the UN Security Council, as the body responsible for peace and international security, should give an order for a ceasefire,” he believes, however, considering that the Court’s decision is “a strong invitation in this sense.”

However, in March 2022, the court ruled that Russia would “immediately suspend its military operations” in Ukraine. But the situation was “completely different,” the lawyer assures: “Russia accused Ukraine of genocide to justify the start of the war,” the lawyer recalls. From the moment the Court denied this risk, it logically asked Moscow to suspend its activities.”

How to interpret this decision?

By calling on Israel to “prevent” any act of “genocide” without ordering a ceasefire, the Court’s decision creates “neither a winner nor a loser,” notes David Halfa, co-director of the North Africa and Middle East Observatory. Jean-Jaurès Foundation.

He said the decision reflected the Court’s “dissatisfaction” with the South African application, “which is not without political ulterior motives.” “Pretoria is set to establish itself as a central geopolitical player,” the researcher points out, in which we also see an “ulterior electoral motive” as South Africa holds general elections in April. “Such instrumentalization of international law for political and diplomatic purposes is dangerous, since it contributes to the weakening and discredit of the International Court,” the researcher believes.

What consequences?

“The Court’s decisions are binding, but it does not have the means to enforce them,” emphasizes Mathilde Philippe Gay, professor of law at Jean Moulin University Lyon. 3 Thus, the International Court of Justice’s ruling calling on Russia to suspend its activities in Ukraine had no effect.

Israeli Prime Minister Benjamin Netanyahu, for his part, suggested that he would not feel obliged to comply with the court’s ruling. But this will not be difficult to achieve, says Jan Jurovich, a lecturer in international law at the University of Paris-Saclay. “There is nothing complicated in this decision to ask Israel: to allow humanitarian aid or to submit a report are not huge restrictions,” he said.

Because it considers that there is a “real and imminent danger” to Palestinians in Gaza, the Court “initiates (according to the 1948 Genocide Convention) a legal obligation for the entire international community to take action to prevent genocide,” says Johann Sufi. That could justify an arms embargo, as well as economic or diplomatic sanctions, he said.

What are key stakeholders saying?

After this decision, Benjamin Netanyahu considered the accusations of “genocide” in Gaza made by South Africa “scandalous.” The “despicable attempt to deny Israel” the “fundamental right” of self-defense is “blatant discrimination against the Jewish state and has been “rightly rejected,” the Israeli prime minister said.

The decision “contributes to Israel’s isolation” and “condemnation of its crimes” in the Gaza Strip, the Hamas terrorist movement responded in a statement. South Africa, which filed the complaint, said it was “a decisive victory for the international rule of law and an important step in the search for justice for the Palestinian people.”

And now ?

Israel must submit a report to the International Court of Justice within one month on all measures taken to respond to the requests.

The Court must then rule on the merits of the case, answering the question of whether Israel committed genocide in the Gaza Strip. But first of all she will have to say whether she is competent to judge. According to Jan Jurovich, this seems likely given his decision on Friday: “She gives the impression of wanting to have influence in this context,” he points out. If the Court declares itself competent, we will still have to wait “about two years” to know its final decision.