The word ‘ceasefire’ does not occur in the provisional measures handed down by the International Court of Justice (ICJ) on January 26, 2024, in the matter of South Africa v Israel. However, argues ADVOCATE ANWAR ALBERTUS SC, the judgment was a humiliating defeat for Israel.
The measures ordered by the court constitute a resounding victory for South Africa, and particularly for the Palestinians in Gaza, in holding Israel accountable in terms of the Genocide Convention of 1948. A sound analysis of the preliminary proceedings, pending a final judgment on whether Israel is committing genocide in Gaza, reveals that Israel is finally being held accountable by the highest court in the world.
The court’s material findings were firmly anchored in evidence, more particularly that there is a plausible case that Israel is committing genocide in Gaza, with the required genocidal intent. The court, on the evidence, rightly rejected Israel’s denial of incitement to violence. The court also rightly rejected Israel’s false assertions that it was taking all reasonable measures to avoid civilian deaths and destruction of civilian infrastructure and that it was granting access to sufficient humanitarian aid to Gaza.
Some argue that the failure of the ICJ to accede to South Africa’s request for an immediate ceasefire by Israel, reflects a major deficiency in the measures. I respectfully disagree. In my considered view, the first, second and fourth measures, effectively, oblige Israel to cease its military operations in Gaza.
First, an immediate ceasefire injunction against Israel would have been an incompetent measure, given the fact that Hamas, the other party involved in the conflict, was not before the court, and in respect of whom, no corresponding order in the nature of a ceasefire, could have been granted.
Second, given Israel’s adroitness at deception, it could easily feign a ceasefire purportedly as a response to an injunction to that effect, but re-activate its military operations. Israel could do so on the pretext that Hamas had either not desisted from further attacks or had renewed hostilities. Israel could purportedly, then once again, claim it was compelled to defend itself.
Third, the measures are firmly grounded in the wording of the Genocide Convention, and as such, have placed Israel (and its allies) in a moral and legal straitjacket.
Fourth, the measures effectively amount to a ceasefire imposed on Israel.
The first measure directs Israel to take all measures within its power to uphold the Genocide Convention. This includes preventing: the killing of the people of Gaza; causing them serious bodily or mental harm; imposing conditions that cause their physical destruction; and imposing measures intended to prevent births within the group.
The first measure is entirely consistent with the court’s finding of a plausible case that genocide is being committed, and it is firmly rooted in the Genocide Convention. Israel cannot reasonably comply with the first injunction unless it ceases its military operations in Gaza.
The second measure reinforces the first. Again, Israel cannot reasonably meet this particular injunction, without ceasing its military operations.
The fourth measure directs Israel to immediately ensure the provision of effective basic services and humanitarian assistance to the people of Gaza. Again, a ceasefire would be necessary to provide effective humanitarian assistance.
Unfortunately, the US and its allies continue to seek ways to enable Israel to continue its genocide. They have demonstrated this by halting their funding of the United Nations Work and Relief Agency (UNWRA), based on unsubstantiated allegations that a dozen of UNWRA’s 13,000 employees had participated in the attack by Hamas on October 7, 2023.
It is significant that Israel is still required, in terms of the ICJ measures, to report to the court within a month. This imposes accountability on Israel, because the court recognises the importance of monitoring Israel’s compliance with the provisional measures.
These measures represent a historic intervention at a time when international political structures have failed to uphold the Genocide Convention. The court has created an opening to the moral majority of the world, to challenge the failure of some of the global elite political class in upholding international law.
Given that the ICJ has retained its right to monitor Israel’s compliance with the measures, and as life for the people of Gaza deteriorates each day, South Africa may have to approach the ICJ, once again, on an urgent basis, to compel Israel and its allies to comply with the measures.
MA Albertus SC is a practising member of the Cape Bar, former Chairperson of the Cape Bar, and former Visiting Professor in Comparative Law at the Levine College of Law, University of Florida.
