Durban — It was a widely held view that South Africa’s hopes for a “ceasefire” order would be doused after stating their case before the International Court of Justice, earlier this month, over the genocide allegations made against Israel over the current Gaza conflict situation.
It came to pass when presiding judge Joan Donoghue handed the interim order at The Hague on Friday.
However, many regard the provisional orders that the South African legal team landed as being “significant” as it asked Israel to take the necessary measures to prevent acts of genocide.
The stipulated provisions were approved by the panel of 17 judges and they include Israel acting decisively against those inciting acts of genocide and that humanitarian aid to Gaza should be allowed.
In its ICJ action, South Africa claimed Israel had violated the Genocide Convention with its responding attacks on Gaza, which have led to well over 25 000 deaths since October.
They reacted to Hamas operatives’ unexpected attacks on Israel from Gaza, on October 7, leaving 1400 people dead and 200 hostages taken.
Professor Cathleen Powell, the University of Cape Town’s international law expert said the court outcome regarding the ceasefire aligned with her forecast.
“The moment Israel made the point about the situation of the armed conflict and the tying of the hands of one party and not the other would be unfair leaving one side vulnerable, I found it was an argument the ICJ would not be able to answer.”
Powell found it interesting that the majority did not engage with why they were not ordering a ceasefire, all they asked was for Israel to comply with the Genocide Convention.
She noticed that the Israeli judge on the panel, Aharon Barak, an ad hoc appointment, confirmed that the ceasefire order would have incapacitated one side.
Powell said the provisions ordered were a “momentous decision” because it included an ad hoc judge (Barak) voting in favour of two provisional measures.
“That is almost unheard of. I found a statistic that showed 94% of ad hoc judges voted for the country that appointed them.
“It was significant that he was not only prepared to find that the court had jurisdiction to hear the matter, which implies a prima facie case of genocide, he was also prepared to say that incitement should be punished and humanitarian aid should be permitted.”
Powell said in delving into the alleged intention and acts of genocide, the court relied on submissions made by South Africa, with the majority of judges believing there was a plausible case for genocide.
Sheetal Soni, a senior lecturer and academic leader of research and higher degrees at the school of law at the University of KwaZulu-Natal said while a ceasefire was not granted, the court made several statements that have immense legal significance.
“ The court stated that the Palestinian people constitute ‘a national group’ as defined in the Genocide Convention.
“Not only does this mean they can be victims of genocide, but it has far-reaching consequences for Palestine’s possible recognition as a state in the future.”
Soni highlighted that the ‘plausibility of genocide’ also meant that states supporting Israel, whether politically or with military support, may be complicit in genocide, which is also a crime under the Genocide Convention.
“The International Criminal Court may also be under pressure as the situation in Palestine was referred to this court in November, which reinforces an existing investigation by the ICC into Palestine.”
Sunday Tribune