The International Court of Justice: A reading of the decision. by Dr. Walid Abdulhay

The International Court of Justice: A reading of the decision.

by Dr. Walid   by Dr. Walid Abdulhay
Translated from Arabic by Sawtoroba.com/Eng/
February 1. 2024

A careful reading of the decisions of the International Court of Justice regarding the case filed by South Africa against Israel, accusing it of committing inhumane acts that fall under the category of “genocide,” requires the following observations:
First: The admissibility of the lawsuit means implicit acknowledgment that Israel has carried out acts that give the court the right to respond to the consideration of the South African case, and it suffices to consider the following text of the preamble to the decisions, the text reads verbatim: “About whether the acts and shortcomings complained of by the plaintiff appear to fall within the provisions of the Genocide Convention, the Court notes that South Africa considers Israel responsible for the genocide in Gaza and for the failure to prevent genocide. South Africa alleges that Israel has also violated other obligations under the Genocide Convention, including those relating to “conspiracy to commit genocide, direct and public incitement to genocide, attempted genocide, and complicity in genocide.” In the Court’s view, it appears that some of the acts and omissions alleged by South Africa were committed by Israel in Gaza could fall within the provisions of the Convention.”
The preceding text of the Court’s decision indicates that the fact of committing acts of extermination has sufficient grounds for the Court, which, in the Court’s view, will remain with Israel because the Court concludes, by the operative part of the preamble to its decision, “that South Africa has the right to submit to it the dispute with Israel over alleged violations of obligations under the Genocide Convention. In the Court’s view, the above facts and circumstances are sufficient to conclude that at least some of the rights that South Africa claims and seeks to protect are reasonable, as this is the case concerning the right of Palestinians in Gaza to be protected from acts of genocide and related prohibited acts specified in Article III, and South Africa’s right to seek Israel’s compliance with the provisions of the Convention.”
Based on this premise, the Court demands that Israel do the following (verbatim):
1. The State of Israel shall, by its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide against the Palestinians in Gaza, take all measures in its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:
(a) Killing of community members
(b) Causing serious bodily or mental harm
(c) Intentional imposition of living conditions on the population of Gaza to carry out acts of physical destruction in whole or in part
(d) Imposition of measures aimed at preventing births.
The State of Israel shall immediately ensure that its army does not commit any acts described in point 1 above;
The above requires a specific question: how will Israel conduct its military operations under the “restrictions stipulated in Resolution No. 1”? The resolution avoided the explicit provision of a “ceasefire,” but implementing the above complicates military operations. Some may say that Israel ignores that, and here we ask: Would it have complied if the resolution had stipulated a ceasefire? If Israel adheres to them (which is highly doubtful), this will weaken the mechanism of pressure on Gazan society and thus reduce some of the burden on the resistance. If Israel does not comply, its legal position will become more complicated for the international community.
2. In its rulings, the Court calls for “Israel to undertake to take all measures in its power to prevent and punish direct and public incitement to commit genocide about members of the Palestinian group in the Gaza Strip.” Perhaps the statements of some Israeli ministers in the first moments of the announcement of the court’s decisions fall under this item, which is the beginning of the violation of the decisions.
3- The Court demands that Israel take “immediate and effective measures to enable the provision of essential services and urgently needed humanitarian assistance to address the unfavorable living conditions faced by Palestinians in the Gaza Strip,” and I believe that this text is binding on Israel, but it opens the door for Egypt – if it wishes – to open the Rafah crossing wide on the basis that this is an implementation of the decisions of the International Court, whether Israel agrees or not, as the Court’s decision represents a legal basis for Egypt.
4. The Court calls on Israel to take “effective measures to prevent the destruction and to ensure the preservation of evidence relating to allegations of acts falling within the scope of articles II and III of the Crime Prevention and Punishment Convention,” i.e., Israel must not conceal its acts of genocide to evade the consequences, which implies an acknowledgment by the court that there is material evidence of the act of extermination. Therefore, the court wants to preserve this act. Evidence.
5- The Court asked Israel to submit “a report to the Court on all measures taken, provided that it includes evidence that Israel has fulfilled its obligations in this regard, and the Court set the period for implementation of this within one month from the date of the Court’s decision (i.e. on February 26), which means that the continuation of the fighting in the manner practiced by Israel in the previous months will add to the list of charges against it, which will make its legal position more complicated.
6- The Court expressed “grave concern about the fate of the hostages who were abducted during the attack on Israel on 7 October 2023, and have since been held by Hamas and other armed groups, and calls for their immediate and unconditional release.” The request is clearly a “gift to Netanyahu.” He can argue that the failure of the resistance to respond to it justifies him taking measures that are interpreted as “implementing the court’s decision” in this regard.
The bottom line:
The court’s decisions were better than they initially seemed. Still, they are inferior to the “ambition” that accompanied the court’s proceedings before reaching the conclusions. I have no doubt that the closed-door discussions played a role in that, and therefore, the report that Israel must submit within a month may push the Netanyahu government to two steps (if it submits the report required by the court):
(a) Attempting to appear less coarse in its military operations to entice the court not to take decisions containing new violations of Israel;
Israel will take advantage of the court’s decision to release the hostages, which requires the resistance and South Africa (and those who joined them) to raise the issue of hostages captured by Israel in Gaza during the war at least (not to mention those who were detained before the war).
The scene may become more complicated to the extent that it pushes toward the Security Council, and another scene will begin that may push toward further escalation of the possibilities of expanding the battlefield regionally. Maybe.