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MIDDLE EAST CRISIS

No ceasefire, but SA wins substantive rights measures in the Gaza genocide case

The World Court orders that Israel stop killing and harming people in Gaza and that it report provisional measures to the ICJ and South Africa by 26 February.
No ceasefire, but SA wins substantive rights measures in the Gaza genocide case President Cyril Ramaphosa is embraced by the deputy Ambassador of Palestine Bassam Elhussiny at Birchwood Hotel during the the outcome of the International Court of Justice ruling on 26 January, 2024. (Photo: Felix Dlangamandla)

It took International Court of Justice (ICJ) President Judge Joan E Donoghue less than an hour to order a decisive turn in what the Court agreed is the “death and despair” haunting Gaza.

A majority of 15 and 16 judges on a bench of 17 granted most of the measures requested by South Africa to prevent a rising genocide in Gaza and the rest of Palestine. But it stopped short of the most important — ordering a ceasefire in a three-month-long war.

The Court said that while accurate figures are not available, it accepted that the war had caused the deaths of 25,700 people, most of whom are women and children.

More than 63,000 people had been injured, while over 300,000 homes (the majority of Palestinian housing stock) had been destroyed.

Read more in Daily Maverick: Middle East crisis news hub

While the ceasefire request failed, the Court sought to bind Israel’s hands, ground its jets and effectively empty the bullet chambers of its guns with its order. But this is only if Israel accedes to the Court’s order.

The Court ordered Israel to:

  • Take all measures to prevent killings, severe mental and bodily harm, and cease preventing care during births in the (Palestinian) group;
  • Take steps to ensure the military forces do not cause the above acts (this may be tantamount to a ceasefire);
  • Take steps to limit the adverse conditions of life in the Gaza Strip (this is to allow humanitarian aid to flow freely and to stop communications and other blockades); and
  • To submit a report to the Court by 26 February on progress and that this report will be shared with South Africa.

International Relations Minister Naledi Pandor said the effect of the order was tantamount to a ceasefire, but Israel disagreed in first reactions.

Judge Donoghue said the order is binding. The jury is out on whether Israel will accede because it has historically ignored international UN resolutions to stop international humanitarian laws in Palestine.

The order was made to preserve the future rights of Palestinians (once the substantive genocide case is heard) and to stop the ongoing killings and humanitarian disasters unfolding.

The Court agreed with South Africa’s argument that there was a plausible case of genocide to be heard but made it clear in numerous parts of the order that it made no finding on whether there was an ongoing genocide.

Judge Donoghue quoted various heads of UN agencies who found that Israel’s operations were “causing massive civilian casualties and displacement”.

“The court is acutely aware of the extent of the human tragedy and concerned by ongoing loss of life,” said Donoghue in her opening statement.

SA Jurisdiction

By a substantial majority, the ICJ found that South Africa had a prima facie case and jurisdiction to bring the case. Israel had sought to have the case thrown out. The Court agreed there was a dispute between South Africa and Israel. It reaffirmed that a ‘common interest’ in preventing genocide applied from ‘one to all’ parties to the 1948 Genocide Convention, regarding which SA ought to order. Israel argued there was no dispute with South Africa and therefore no legitimate case before the ICJ.

The Court agreed with UN statements that a substantial proportion of Gaza’s two million people would carry lifelong scars and had been impacted by the war now just over 100 days long. It quoted UN agencies who had said: “An entire generation of children is traumatised and will take years to heal”. It also accepted UN data, which showed a looming famine in Palestine, with 93% of people going hungry and most not having access to potable water.

The ICJ also appeared to accept South Africa’s argument on the genocidal intent of Israel. It said that statements by Israeli leaders, including its President Isaac Herzog, dehumanised Palestinians.

The Israeli Attorney-General belatedly announced an investigation into these statements. While welcoming this, the Court said it was still sufficient to conclude that at least some of the rights sought by SA are plausible.

ANC NEC members listen to the outcome of the International Court of Justice ruling on 26 January, 2024, at Birchwood hotel. (Photo: Felix Dlangamandla)
ANC NEC members listen to the outcome of the International Court of Justice ruling on 26 January, 2024, at Birchwood Hotel. (Photo: Felix Dlangamandla)

Ferial’s view

It’s an almost slam-dunk human rights victory for South Africa, which always knew it was unlikely to get a ceasefire. The preventive measures ordered should bring succour to Palestinians still dying in scores every day. It should open up humanitarian corridors because the Court has ordered a short-term return date for a progress report on 26 February. Of course, it may not if Israel decides not to accede.

The most important outcome is the fact that a genocide case will be heard, likely for years. This means Israel’s allies will think several times before supplying arms and turning a blind eye to its human rights abuses.

Impunity is deep in the world, and while the debate will now be on how much effect the court order will have, at least for today, the rights of peace have vanquished the impunities of war. DM

Comments (10)

raymond schur Jan 28, 2024, 04:01 PM

The article does not mention that Hamas is required to release all the hostages.

Markgelman.ct Jan 28, 2024, 08:39 PM

There was no order of a ceasefire, because the ICJ recognises that this war is a legitimate act of defence against the brutal aggression of Hamas on October 7, as well as the continual and ongoing indiscriminate rocket attacks that originate from Gaza. No reasonable human being wishes for the continuation of this or any other war or celebrates the loss of a single life. The court recognises that a major justification for the continued actions of Israel is in the obligation a government has to protect its citizens and free those that are held in captivity and raped on a daily basis. By calling for the immediate release of these hostages, the complicity of Hamas in the continuation of this war is finally spoken aloud on the world stage. We are finally reminded that this is a war in response to an unspeakable aggression, with an objective, and there are two parties who have agency in how those objectives are met. There was not a single specific act identified or mentioned. The provisional measures and orders, were merely a general statement of the obvious and pre-existing expectations placed on Israel to act within the confines of international law, which it does and will. And the requirement to report and be scrutinised on this, will give a globally recognised framework by which to be further legitimised. The notion that the “steps” to be taken, forbid the continuation of the war, with the potential for civilian death, is tragically a manipulative distortion aimed at I am not sure who? Further sewing the seeds of expectations that will not be met, such as South Africa emerging as the big peace maker of the world. Similarly, by accepting jurisdiction to hear the case, a framework is provided by which to be cleared of this charge, however costly this proves to be in terms of time, resources and distraction, and the further divisions sewn by biased and distorted reporting as exampled by the above article. The orders were directed at Israel alone, because the Palestinians lack a credible leadership to which similar cautions may be addressed, having elected a terror organisation as their leadership who couldn’t care less about international law. What point would there be to order the cessation of rocket attacks, themselves unambiguously indiscriminate in their intent? What point would there be to order Hamas to not impede the flow of civilians away from targeted areas? To allow aid to reach its intended civilian recipients and not end up stockpiled in tunnels? To step down from its position of appropriating the entire territory of Gaza, under the guise of leadership, to wage a futile and costly war of annihilation against Israel that has precluded any semblance of progress towards autonomy and state-building for the Palestinians? The actions of October 7 do not require a careful examination to be recognised as war crimes, or simply as crimes, since these actions do not deserve to be even partly shielded behind a cloak of war. These were acts of rape, torture, mutilation and execution that have become a footnote to every article – the 1400 that must be mentioned as a duty to maintain some illusion of balance, before laying into Israel. So no, this is not a victory, for anyone really. It is a sideshow. I would applaud any meaningful effort, to bring an end to this war. Where is South Africa’s attempt to negotiate for the release of hostages, given their relationship with Hamas? Where is the sincerity in the condemnation of the horrific atrocities of October 7, when seen alongside the cosying up to Hamas – receiving delegations and the like? Where is anything of any substance? A great amount of attention has now been given to a process that will achieve nothing positive but will have negative unintended consequences. Organisations like Hamas will feel legitimised and emboldened. Israel will be further vilified, further isolated, and less able to see ways towards peaceful settlements that feel sufficiently secure for its citizens. They will wear the heavy mantle of those accused of genocide until eventually cleared – much as a man’s life may be ruined by the charge of rape, even when he is eventually shown to be innocent. These consequences have not been considered. What seems to irritate many other respondents too, is just the dissonance of seeing our politicians enjoy this limelight. Our politicians who cannot oversee a single conviction after our country has been stripped bare by state capture. Our politicians under whose watch this country collapses a little more each day. As a final comment, Gaza has been described by many as the biggest open-air prison in the world. These people have obviously not driven past Du Noon or Khayelitsha lately. Huge swathes of our population exist in true open-air prisons. They are prisoners of the economic hopelessness perpetrated on this country by an inability to lead and serve, by a corrupt and self-interested party. People are right to feel aggrieved that a complex and remote geopolitical situation, receives more attention and warrants live television posturing by our cardboard cutout state president, while the majority of our own population live out their dismal existences in conditions far worse than those experienced in Gaza. Hypocrites. Release hostages. Hamas surrender and disarm. Ceasefire.

Graeme de Villiers Jan 29, 2024, 11:15 AM

You win the internet for sure. Great post.

Middle aged Mike Jan 29, 2024, 01:49 PM

Hear hear.

anton kleinschmidt Jan 29, 2024, 02:31 PM

Bravo

Stephen Paul Feb 2, 2024, 02:39 PM

I have only seen this comment now. Amongst all the noise it is probably the most intelligent one posted on this thread.

Stephen Paul Feb 2, 2024, 02:39 PM

I have only seen this comment now. Amongst all the noise it is probably the most intelligent one posted on this thread.

olof.ribbing Jan 28, 2024, 08:49 PM

If this was a slam dunk victory for SA, how would it had been if SA had turned in Putin to the court? He didn't trust the ANC leadership to be the spineless cowards they are, so he didn't give you the chance. Instead SA has provided Putin with a diversion from Russia's intended ongoing genocide in Ukraine, and as it seems delivered weapons to do it.

John P Jan 29, 2024, 10:17 AM

The ICJ certainly does not recognise this ""war" as a "legitimate act of self defense." No ceasefire order could be made, that would require both parties to be bound by a ruling from the ICJ.

Ben Harper Jan 30, 2024, 06:27 AM

How ion EARTH did you come to that conclusion? That's really reaching

John P Jan 30, 2024, 08:32 AM

Just factual

Ben Harper Jan 31, 2024, 08:14 AM

In what way?

Tony Gomes Jan 28, 2024, 09:21 PM

What a mess. ANC proved nothing. Israel must and will continue the counter-offensive. Show the ANC how a real govt reacts to attacks against its people. Hamas' stated aim is the elimination of Israel. We would have had a much beter case if we took Hamas and Palestine to court on the same charges. The fact that Israel strikes harder than Hamas is irrelevant. I promise you that if Hamas could reverse the kill ratio they would.

Husky310.aw@icloud.com Jan 29, 2024, 07:07 AM

Does God say He curses those that curse Israel and He blesses those who bless Israel…….Derek Prince mentions this…I wonder how ANC will do in the next election. I suspect they just blew both feet off with a howitzer

Middle aged Mike Jan 29, 2024, 11:02 AM

Would be fantastic if our care bear of a prez could raise the same level of effort to stop the rampant civil rights abuses enabled by his appointees in our country. 70 south africans murdered every day doesn't even seem to raise his pulse

malopedavid4@gmail.com Jan 29, 2024, 11:58 AM

It is painfully heartening for a country to experience such mass loss of its civilians at the hands of those who have economic interests in it . I suggests the global countries who witnessed this genocide can unite against this kind of behavior from those who have resources to manipulate them .

Derick Strauss Jan 30, 2024, 12:31 PM

Now that the whole world acknowledge that UNWRA was captured by Hamas in exactly the same way the ANC cadres the South African Revenue services and the Tender system: Is it still a diplomatic victory? Was there really any gain for the ANC? It was not SA that brought the case before the ICJ but the ANC. The state capture narrative will stick to the ANC and eventually destroys them from the inside. It is the international banking system that hold the key to ANC financing. And who control the international banking system? ANC - Prepare yourselves for a huge exposé.

Pieter van de Venter Jan 30, 2024, 03:35 PM

What a convenient Hamas tinted view. Hopefully, this joy will fill your bellies and keep the roof over your heads when the retribution is handed out and we become Zimbabwe on steriods - economically.

Rafique Ismail Jan 30, 2024, 05:43 PM

DONT TRAMP ON A LIONS TAIL, WITHOUT A LOADED GUN, OR ROBUST SUPPORT FROM BIG POWERS! WELL DONE RSA , FOR YOUR HONOURABLE STANCE AGAINST INJUSTICE, BUT TAKE COGNIZANCE OF DIRE ECONOMIC CONSEQUENCES THAT POTENTIALLY WILL CRIPPLE, NOT THE ANC GOVERNMENT, BUT ITS POOR PEOPLE. SOUTH AFRICA CONTRIBUTES ONLY ABOUT 0.5% OF THE ECONOMY. JUST A MERE DROP!!

Stephen Paul Feb 2, 2024, 03:06 PM

"HONOURABLE STANCE AGAINST INJUSTICE" = Being baled out of liquidation by Iran. Who else would it be ? I trust D M is on to this miracle with the same journalistic zeal it has shown to portray that S A won a great victory at the ICJ. BTW just a side bar to say, with appropriate shout out to those with sight disabilities, we can read your comment without CAPITALS.

Con Tester Feb 2, 2024, 03:45 PM

Actually, longstanding common Internet protocol dictates that writing in all-caps is the typed equivalent of shouting in someone's face. However, that may well have been the intention, given the message's contents.

Stephen Paul Feb 2, 2024, 04:04 PM

Understood. Personally I could do without being shouted at in my face as the louder you talk the less the actual communication. :-)