The UN’s highest court has ordered Hamas to release all hostages held in Gaza immediately and unconditionally and has instructed Israel to take every possible measure to avoid genocidal acts in a “catastrophic” conflict which, it said, increasingly threatens regional security.
The International Court of Justice did not, however, order a ceasefire in the conflict, which exploded after Hamas attacked Israel on October 7th, killing about 1,200 people and taking 240 hostage, according to Israel, which retaliated with an air and ground assault on Gaza that has killed more than 26,000 and displaced the majority of the population, according to the Hamas-run health ministry.
The landmark case against Israel was taken by South Africa which, during two days of hearings earlier this month, petitioned the ICJ to order an immediate end to Israel’s military operations, claiming they concealed a genocidal campaign against Palestinians in the enclave and requesting emergency interim measures to stop it.
Israel in reply denied the “outrageous” genocide allegations. It said its campaign to pursue Hamas and free its hostages was being conducted wholly in accordance with international law, and said it based its defence on its entitlement to protect its population.
Friday’s ruling related only to South Africa’s request for emergency measures and the court’s president, Judge Joan E Donoghue, stressed that the measures ordered by the court did not prejudge the merits of the substantive case against Israel alleging breach of the 1948 Genocide Convention, which would take a number of years to adjudicate.
For Israel, however, which had asked the court to reject South Africa’s case outright, those emergency measures are undoubtedly a major diplomatic embarrassment – even in the absence of a ceasefire order.
Two crucial rights, Judge Donoghue said, had been established by South Africa on behalf of Gaza’s Palestinian population: firstly, their fundamental right to be protected from genocide, and secondly, their right to seek Israel’s compliance with its obligations under the Genocide Convention.
On that basis, said the court’s ruling, which took just under an hour to deliver: “The state of Israel shall take all measures within its power to prevent the commission of all acts within the scope of Article II of the Genocide Convention.”
The ruling also required Israel to ensure that its military complies with the emergency measures order; to ensure that there were no utterances that would be interpreted as “incitement to genocide”; to ensure that basic services were restored as quickly as possible to the people of Gaza, and to ensure that any evidence germane to the substantive genocide case should be protected and not destroyed.
Judge Donoghue also ordered Israel to report in one month’s time on the practical measures it had taken to comply with the interim measures ruling. In the circumstances, she said, the court could not accede to Israel’s request that the case be removed from the court’s list.
The six provisional measures were approved by a large majority of the judges – two of them by 16 to one and four by 15 to two.
Afterwards, the South African government hailed the ruling as “a decisive victory” for the rule of international law and said it hoped Israel would not attempt to “frustrate” the order.
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Israel’s prime minister, Binyamin Netanyahu, welcomed the fact that the court had not ordered a ceasefire, which would have deprived Israel of “the basic right to depend itself”. However, the court’s willingness even to discuss South Africa’s allegation of genocide was “a disgrace”, he said.
Sami Abu Zuhri, a senior Hamas official, told Reuters the ICJ decision would contribute to “isolating the occupation and exposing its crimes in Gaza”. A spokesman for Fatah, the dominant political party in the Palestinian Authority, which governs the West Bank, said Israel had been “handed a yellow card”.
The decisions of the ICJ are legally binding under international law and cannot be appealed. However, the court does not have a mechanism to enforce them.
