What led the UN’s top court to order Israel to prevent genocidal acts in Gaza and why did it stop short of demanding a halt to the war?

At this stage of the case, the Court only had to determine whether it was plausible that acts of genocide could be occurring and it ruled that it was indeed plausible and therefore issued the provisional order. This in itself is a serious rebuke to Israel and its allies. Can you imagine? We are in 2024 and it is plausible that there may be an intention to destroy a national, ethnical, racial or religious group?

However, the court did not order Israel to stop the war. The case was entered under the Genocide Convention; so the Court is bound by the provisions of that Convention when dealing with this case. Death and destruction are not sufficient by themselves to establish a violation of the Genocide Convention. The Convention requires an intention to destroy a national, ethnical, racial or religious group. Israel adduced evidence that its intent was focused on defeating Hamas which had attacked it on October 7. South Africa will have to establish Israel’s intent to destroy Palestinians in Gaza by proof of actual intent, not by inference. And that intent will not be easy to prove.

Can you explain the context and implications of the controversial case brought against Israel by South Africa at the ICJ?

The barbarious acts of October 7 2023 committed by Hamas are horrendous, inhumane and unacceptable. But so are the conditions in which Palestinians have been living for years in Gaza. That entire people has been living in inhumane conditions for years and it is unfortunate that it took the barbarism of October 7 for the world to wake up to what do the Palestinians go through on a daily basis, which is basically apartheid. There is no need to take sides: both Israelis and Palestinians have themselves to blame for the mutual attacks on each other and for the mistrust that exist today in both camps. The solution must be two-States and Palestinians must have their own sovereign State in which they can live freely. As for Israel, it will be then up to it to determine its own homeland security policies and determine who can enter its territory for the security of its nationals. It is a country which has suffered horrendous acts of terrorism over the years and it will be entitled to determine who to admit on its territory.

Be that as it may, as horrendous as the barbaric atrocities of October 7 were, Israel’s actions in retaliation by destroying Gaza had a devastating impact on the civilian population causing tens of thousands death and millions of people forcibly displaced and now living in inhumane conditions. The world could not continue to watch this powerless, which is why South Africa needs to be credited for its initiative which goes towards restoring the credibility of international institutions and application of international law. But more importantly, it has the merit of addressing the roles of the US and the UK in this tragedy: the ruling serves as a judicial notice on them, literally suggesting that their support to Israel could be construed as a support to a possible genocide in Gaza.

How significant is the International Court of Justice’s ruling in the broader context of international law and the case against Israel?

The orders issued by the ICJ, albeit provisional, are binding and create legal obligations on any party to whom the provisional order is addressed. However, they remain largely symbolic given that only the United Nations Security Council has the power to enforce the Orders and any attempt at securing an enforcement resolution from the UNSC will surely meet with the veto power of the US. It is material to note, however, that several human rights NGOs have already launched legal proceedings against the US and UK officials for their roles in the war, pursuant to Section 1091 of Title 18 of the United States Code, which is the US domestic law that implements the Genocide Convention in the US. Also, as I mentioned earlier, the ruling serves as a notice on all those countries supporting and assisting Israel: their actions could be construed as assisting and supporting a genocide.

What is the importance of the ICJ finding that it had jurisdiction in this matter and recognizing a plausible case under the 1948 Genocide Convention?

ICJ finding it had jurisdiction has been a fundamental milestone for the good of international law. I am not sure where we would have been going had it found it had no jurisdiction. There is this perception that international law is largely a product of the west aimed at policing the rest of the world. The ICJ ruling represents an attempt at restoring credibility in international law. In that sense, it is a significant rebuke to Benjamin Netanyahu’s policies and decisions.

On a different note, Britain’s Foreign Secretary David Cameron has provoked fury by abruptly ruling out the resettlement of former inhabitants of the Chagos Islands, months after his predecessor revealed that the UK was discussing their potential return. How come?

Well it is not surprising, is it? David Cameron is the symbol of imperialist colonialism which places the interest of the British empire over fundamental and peremptory norms of international law. It does not reflect the true values of Great Britain and the basic principles on which the Commonwealth has been founded. It is a mere symbol of the far-reaching grip of a bunch of white supremacist far right politicians has on the rule of international law.

You realise that the Chagos Islanders constitute a people of its own, with distinct identity and they are recognized as such with their own culture and heritage. By forcibly removing them from their islands and keeping them away for so long, it has now been found that a destruction of the chagossian culture is happening. This raises issues under the Genocide Convention. Do you see a pattern here?

How has this stance affected islanders who a year ago had celebrated the news that the UK was discussing their return on the islands?

The chagos islanders are resilient people. They have been used to the deceptive policies of the British politicians and nothing can surprise them. They will continue their fight until their fundamental rights are restored by international law.