There is no legal or moral reason for the ICJ not to order the provisional measures sought by South Africa unanimously.
The three hours of oral arguments by the six members of the South African legal team, on the first day of hearings at the International Court of Justice (ICJ) on the genocide case initiated against Israel by South Africa were highly professional and impressive.
In 2020, in the genocide case brought by Gambia against Myanmar, the ICJ unanimously ordered the following “provisional measures”, which are fully (and no doubt intentionally) consistent with the provisional measures sought by South Africa:
For these reasons, The Court,
Indicates the following provisional measures:
Unanimously,
The Republic of the Union of Myanmar shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:
(a) killing members of the group;
(b) causing serious bodily or mental harm to the members of the
group;
(c) deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part; and
(d) imposing measures intended to prevent births within the group.
‘Explicitly Genocidal Intent’
While the horrors inflicted upon the Rohingya were appalling, it is clear, as argued by the South African legal team, that the horrors already inflicted and continuing to be inflicted upon the Palestinian people in Gaza are “sadly even more stark” and “of much greater severity”.
And, significantly for proving “intention” under the Genocide Convention, these horrors are openly advocated and avowed by abundant public declarations of explicitly genocidal intent.
Accordingly, there is no legal or moral reason for the ICJ not to order the provisional measures sought by South Africa unanimously, subject only to the presumed politically motivated dissent of the ad hoc judge added to the court by the Israeli government and the possible politically motivated dissent of the American judge.
Since four of the court’s judges, including the American judge, who is currently serving as president of the court, are scheduled to retire and be replaced on February 6, one may anticipate that the court will issue its order prior to February 6.
In light of the urgency of the matter, one may hope that the court will issue its order much sooner.
While ICJ orders are binding and non-appealable, it is clear that Israel will ignore any order of the ICJ, as it has ignored the court’s near-unanimous (the American judge dissenting) 2004 opinion on the illegality of the Apartheid Wall and all “binding” UN Security Council resolutions and “non-binding” UN General Assembly resolutions against it.
Everything You Need to Know about South Africa’s ICJ Case against Israel – LIVE BLOG & RESOURCES
However, after such an order is issued, it will be awkward (albeit far from impossible) for the the governments of the US, the UK and other Western countries to defy a “binding” order of the world’s highest judicial authority by continuing to support, militarily, financially and diplomatically, Israel’s genocidal assault against the people of Gaza.
Notably, in the case of the United States, by vetoing a new UN Security Council resolution (probably to be introduced by new temporary member Algeria) demanding that all states comply with the ICJ’s order – effectively, another demand for an immediate ceasefire.
If the United States were to veto such a resolution, it would be reconfirming that the subservience of its political class to Israeli domination and control has reduced the United States to the status, like Israel, of an outlaw, rogue and pariah state.
Even Genocide Joe might hesitate.
– John V. Whitbeck is a Paris-based international lawyer. He contributed this article to The Palestine Chronicle.
