U.N. Court Orders Israel to Halt Killings in Gaza, but No Cease-Fire

The Washington Post / Emily Rauhala, Steve Hendrix

15:11 JST, January 28, 2024

THE HAGUE – The International Court of Justice on Friday ordered Israel to do more to prevent the killing of civilians in Gaza but did not call for a cease-fire, disappointing Palestinians who had hoped the court would endorse their pleas for immediate relief from the violence.

At a closely watched hearing at The Hague’s Peace Palace, the court confirmed that it has jurisdiction in the landmark case brought by South Africa last month and in a preliminary finding said the plausibility of genocide makes the need to prevent harm to civilians urgent.

In an order read out by court president Joan E. Donoghue, the panel called on Israel to prevent the possibility of genocide in its war on Hamas, allow more aid into Gaza and sanction its officials and soldiers for comments that amount to incitement. It directed Israel to submit a report within one month outlining how it is implementing those orders.

Palestinians had hoped the court would issue an order to immediately halt the fighting, as requested by South Africa, much as the court in 2022 demanded that Russia stop its military operations in Ukraine.

“We find ourselves in a perplexing situation as a court decision acknowledging the possibility of genocide falls short of demanding a complete cease-fire,” said Mohammed Mahmoud, 36, a father of five who fled Gaza City in the north for Rafah in the south. “Waiting longer in such circumstances only prolongs death and enduring pain.”

Legal scholars said there were key differences in Russia’s and Israel’s actions that made a cease-fire order in Gaza far less likely.

Israel launched its war on Hamas after the militant group killed 1,200 people in Israel and took more than 240 hostage in a surprise attack on Oct. 7, according to Israeli authorities. It was the deadliest day for Jews since the Holocaust.

“The court found that Russia had no foundation under international law for its claims of self-defense and that it should stop waging war,” said Hebrew University law professor Yuval Shany, a former chairman of the U.N. Human Rights committee. “In this case, you might read the court’s rulings as an implicit validation that Israel does have a legitimate claim of self-defense.”

Israel should be able to comply with the court’s directives to protect civilians from harm and increase aid without substantially changing its operations in Gaza, Shany said. Israel already insists it warns Gazans of impending attacks and facilitates aid.

“I don’t think these orders require Israel to do anything it is not claiming to be doing anyway,” he said.

But Diana Buttu, a Palestinian human rights lawyer, said the ruling means Israel must significantly reduce its attacks in Gaza or risk being referred to the U.N. Security Council.

“The fact that they have to take measures to prevent genocide, that is, in other words, a cease-fire,” she said. “There are going to be a lot of eyes on this ICJ opinion. I don’t think Israel is going to be able to just slide by like they usually do.”

Friday’s decision is not a verdict on whether Israel has committed genocide; that finding could take years. Rather, the provisional measures aim to prevent the situation from getting worse while the case proceeds.

U.S. National Security Council spokesman John Kirby, asked Friday if President Biden was “disappointed” the court didn’t “definitively dismiss” the claim Israel was committing genocide, said the ruling was “consistent with many of our positions and much of the approach that we’ve taken with Israel.”

He said the court affirmed Israel’s right to take action against the perpetrators of the Oct. 7 attack and obligations to minimize civilian casualties and enable humanitarian assistance.

“All of these are things that we have been pushing and urging for as well,” Kirby said.

Donoghue, formerly a longtime State Department legal adviser, said the ICJ “considers that the civilian population in the Gaza Strip remains extremely vulnerable. “The Court considers that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment.”

The case brought by South Africa has spotlighted deep divisions over the Israeli campaign in Gaza and the way it’s being conducted. In a hearing this month, South Africa argued that Israel had violated the Convention on the Prevention and Punishment of the Crime of Genocide by both committing and failing to prevent genocidal acts. It asked the court to order Israel to cease military operations there immediately.

Other governments have voiced support for South Africa’s case, as has the 22-member Arab League and the 57-member Organization of Islamic Cooperation.

South Africa didn’t get the cease-fire it requested but nonetheless declared a “decisive victory for the international rule of law and a significant milestone in the search for justice for the Palestinian people.”

“The International Court of Justice (ICJ) has determined that Israel’s actions in Gaza are plausibly genocidal and has indicated provisional measures on that basis,” it said in a statement. “For the implementation of the international rule of law, the decision is a momentous one.”

Israel has roundly rejected the allegations. It said South Africa presented a “grossly distorted” picture by ignoring the role of Hamas and “weaponizing” the international convention against genocide.

“The charge of genocide leveled against Israel is not only false, it’s outrageous, and decent people everywhere should reject it,” Prime Minister Benjamin Netanyahu said Friday. He said Israel continues to facilitate humanitarian aid to civilians and would not end its campaign against Hamas.

The Biden administration dismissed the filing as “meritless.” Britain called the claims “nonsense.”

More than 26,000 Palestinians have been killed in the Israeli offensive, according to the Gaza Health Ministry, the majority of them women and children.

ICJ decisions are legally binding, but they can be difficult to enforce. Russia ignored the 2022 order to cease its war against Ukraine. Still, the provisional orders will help shape the global conversation on the conflict.

“This is definitely a ‘win’ for South Africa, although there won’t be enormous immediate change on the ground,” Juliette McIntyre, a lecturer in law at the University of South Australia who specializes in international courts and tribunals, wrote in an email. “Which means some will criticize the court for not going far enough.”

Amichai Cohen, a law professor at Israel’s Ono Academic College, noted that a cease-fire order, the outcome Israel feared most, did not materialize. “All in all, Israel’s position is certainly not better, but the worst anxieties regarding the court’s possible position were not realized,” he said.

Some rights groups welcomed the orders.

“The World Court’s landmark decision puts Israel and its allies on notice that immediate action is needed to prevent genocide and further atrocities against Palestinians in Gaza,” said Balkees Jarrah, associate international justice director at Human Rights Watch.

In Ramallah, where around 150 people gathered at an auditorium Friday to watch a live stream of the proceedings, Palestinians expressed frustration that the court did not go further.

“I came here to see international justice achieved, but unfortunately the decision was unjust,” said Iyad Stesti, 41, a musician. “I was hoping and hoping for a complete cease-fire because people are suffering …

“The decision gives Israel a full month to kill Palestinian people in Gaza and commit genocide,” he said.

At the heart of South Africa’s case is the claim that Israel has shown genocidal intent in Gaza.

“Nothing will stop the suffering except an order from this court,” Adila Hassim, one of the lawyers representing South Africa, said this month.

In three hours of testimony on Jan. 11, South Africa’s legal team laid out the war’s devastating impact on civilians, including a soaring death toll and a spiraling humanitarian crisis.

“It is becoming ever clearer that huge swaths of Gaza – entire towns, villages, refugee camps – are being wiped from the map,” Blinne Ni Ghralaigh, an Irish lawyer on the South African team, said at the hearing. “On average, 247 Palestinians are being killed and are at risk of being killed each day, many of them literally blown to pieces. They include 48 mothers each day, two every hour. And over 117 children each day.”

They also argued that Israeli officials have used dehumanizing language in a calculated effort to normalize “genocidal rhetoric” and incite soldiers.

Israel argued against all the claims. The Israeli legal team argued Jan. 12 that the civilian toll in Gaza was an unfortunate but unavoidable consequence of fighting a militant group that hides in civilian areas, including hospitals.

Israel accused the South Africans of taking remarks from leaders out of context and ignoring orders from officials to avoid unnecessary casualties. The team also sought to highlight efforts to limit civilian harm, citing, for example, its practice of calling homes and dropping leaflets to warn Palestinians of incoming airstrikes.

“It is in response to the slaughter of Oct. 7, which Hamas openly vows to repeat, and to the ongoing attacks against it from Gaza that Israel has the inherent right to take all legitimate measures to defend its citizens and secure the release of the hostages,” said Christopher Staker, a lawyer representing Israel.