In its pursuit of justice and adherence to peaceful means for resolving international disputes in accordance with the principles of justice and international law, the international community deemed it necessary to establish a court aimed at upholding these principles. The International Court of Justice (ICJ) plays a crucial role as one of the principal organs of the United Nations (UN), with all UN members being parties to its Statute. To ensure the court’s ability to uphold justice, each member state commits to abide by the court’s rulings in any case in which they are involved. Article 92 of the ICJ’s Statute declares the court as the primary judicial organ of the UN.
Respect for the ICJ and its functions is essential for the rule of law and for prioritizing reason and logic in international affairs.
In support of international efforts to address crimes committed against civilians in Gaza, the Republic of South Africa filed a lawsuit against Israel at the ICJ in December 2023, accusing it of committing genocide against Palestinians, especially in the Gaza Strip. South Africa alleged in its lawsuit that Israel’s actions amounted to genocide, as they were aimed at destroying Palestinians in Gaza as part of the national, ethnic, and racial Palestinian group.
South Africa’s request to the court had two main objectives: first, to seek provisional measures, and second, to confirm the accusation that Israel committed international crimes, particularly genocide, against civilians residing in Gaza.
The ICJ announced it would hold two hearings regarding the situation in Gaza. South Africa requested that the court issue provisional protective measures immediately, ordering Israel to halt its military operations in Gaza.
Following this, Namibia supported South Africa’s stance in the urgent case before the ICJ, asserting that the Israeli entity was violating the UN Convention on the Prevention and Punishment of the Crime of Genocide, which was signed in 1948.
From the above, it is clear that the court has not yet examined the substantive aspects of the case. It has, however, considered the request for provisional measures under Article 41 of the court’s Statute. This article allows the court to issue provisional measures to preserve the rights of either party in a dispute if circumstances warrant it. The court, at this stage, is tasked with assessing whether temporary measures are necessary to protect the parties involved when there is an imminent threat. The court then informs the UN General Assembly so it can take the necessary steps through its various bodies.
Such provisional measures must be timely and effective to preserve fundamental rights and maintain the status quo of the dispute, preventing further escalation or changes in circumstances that might impede a fair resolution. These measures are inherently temporary and preparatory, and they do not constitute a resolution of the dispute itself, meaning they can be modified or annulled later.
Regarding the situation in Gaza, the court aims, through these provisional measures, to compel the accused authorities of committing genocide or aggression to fulfill their legal and moral duties, protect the weaker party, and take all necessary actions to stop the killing and prevent physical and psychological harm. Such acts are considered international crimes. Therefore, issuing these provisional measures is not only a step toward ensuring the proper application of international law and relevant treaties, but also a humanitarian obligation, as dictated by conscience and international humanitarian law, as well as the UN Charter. The charter’s first article calls for “the maintenance of international peace and security” and the adoption of “effective collective measures for the prevention and removal of threats to peace, and for the suppression of acts of aggression or other breaches of the peace.”
Although no decision has yet been made to halt the aggression in Gaza, several rulings by the ICJ have provided a strong foundation for the substantive examination of the case. This substantive examination, which could take additional time, will address both the legal and criminal aspects of the case. The court has recognized that the dispute merits attention, given the occurrence of acts by Israel that are internationally recognized as crimes under the Genocide Convention. The ICJ has documented these crimes and requested Israel to submit a report on its response to the court’s rulings.
The actions taken by the court represent an international legal indicator condemning Israel and its allies in the Gaza war. This opens the door for South Sudan or any other international community member to join in providing evidence of Israel’s international crimes against Palestinians.
In its ruling on January 26, 2024, the court stated that the grave situation requires the immediate and effective implementation of the provisional measures mentioned earlier. The court emphasized that these measures apply to all areas of the Gaza Strip, including Rafah. Therefore, there is no need to issue additional provisional measures. The recent developments in Gaza, particularly in Rafah, are likely to significantly worsen what is already a humanitarian catastrophe with far-reaching regional consequences.
In March 2024, the ICJ issued new additional provisional measures. The court added further measures to those requested by South Africa in its case against Israel, relating to the application of the Convention on the Prevention and Punishment of the Crime of Genocide in Gaza. The court found that the provisional measures in its initial ruling did not fully address the consequences of the changing situation, justifying the need to amend them.
The court’s decision noted that since January, the catastrophic living conditions of Palestinians in Gaza have deteriorated further, especially with the prolonged and widespread deprivation of food and other essential needs that the population has been suffering.
The additional provisional measures included in the court’s decision required Israel to immediately ensure that its military forces do not commit acts violating any of the rights of Palestinians in Gaza as a group protected under the Genocide Convention. This included preventing any further violations and ensuring the urgent delivery of humanitarian aid, reflecting the court’s view on the magnitude of crimes committed by Israeli forces against Palestinians.
The court requested that Israel submit a report detailing the measures it has taken to implement this ruling within one month.
In response, the Israeli legal team argued that its dual military objectives were the elimination of the existential threat posed by Hamas fighters and the release of hostages still being held in the Gaza Strip, claiming self-defense.
Upon analyzing Israel’s stance and its justification of its actions in Gaza based on the principle of self-defense, and without delving into the specifics of self-defense, we find that Israel does not meet the criteria for legitimate self-defense. The United Nations Charter, in Article 51, grants the right to self-defense, and for this right to absolve a party from international criminal responsibility, several conditions must be met:
- The defense must be the only means to repel an unlawful attack against oneself or others, and it must be directed at the source of the aggression or threat.
- The threat or attack must be imminent or have already occurred.
- There must be proportionality in the use of force, matching the severity of the attack or aggression.
These conditions do not align with the Israeli aggression in Gaza.
We believe that self-defense is not acceptable in cases of international crimes. It is unimaginable to absolve individuals who commit or contribute to such crimes, as they are fully aware of their international violations. To argue otherwise is to establish a lawless world and undermine human dignity and rights, which are protected by law. Even if self-defense can sometimes absolve responsibility, it does not apply to those committing international crimes and spreading corruption. Crimes against humanity, in particular, are in violation of all legal systems and conventions. Therefore, invoking self-defense as a reason for avoiding responsibility, especially for crimes against civilians in Gaza, is unjustified.
It is important to point out that disputes brought before the International Court of Justice (ICJ) concerning international crimes against civilians in Gaza are legal disputes, not merely political ones. Political disputes fall under the jurisdiction of the Security Council. The ICJ has expressed that any dispute can have multiple aspects, legal and political, and it is unreasonable for the court to refuse to address a dispute simply because it raises political issues. The court bases its judgments solely on legal grounds, not political considerations, when issuing decisions, rulings, or advisory opinions.
Even if veto power is used to block court decisions, such as when Algeria presented a resolution to the Security Council on February 20, calling for an immediate ceasefire in Gaza for humanitarian reasons and to reject the forced displacement of Palestinian civilians, the resolution failed due to the United States’ use of its veto power. This undermines international justice and denies fairness. In such cases, the same resolutions can be referred to the United Nations General Assembly under the “Uniting for Peace” principle. This principle stipulates that if the Security Council fails in its primary duty to maintain international peace and security due to a lack of consensus among its permanent members, the General Assembly assumes responsibility to recommend collective measures, including the use of armed force if necessary. The principle, adopted in 1950, was meant to preserve international peace and security.
This principle has been invoked multiple times when the Security Council proved incapable of addressing crises that endangered international peace and security.
It is also important to distinguish this case from another currently before the ICJ, where the General Assembly requested an advisory opinion on the legal consequences of Israel’s policies and practices in the occupied Palestinian territories, including East Jerusalem. In this case, Egypt presented a legal argument affirming the illegality of Israel’s systematic practices against the legitimate rights of the Palestinian people. Egypt’s argument emphasized that stability in the Middle East could only be achieved by recognizing an independent Palestinian state. Egypt also provided evidence of the illegality of Israel’s occupation of Palestinian territories, focusing on four key issues:
- Confirming the ICJ’s jurisdiction to offer an advisory opinion on Israeli practices in the occupied Palestinian territories since 1967.
- Analyzing the legal consequences of Israel’s prolonged occupation, which violates international law and the principles governing the legitimate use of force, particularly regarding the prohibition on acquiring land by force and the right of peoples to self-determination.
- Refuting Israel’s legal justifications for invoking self-defense or security and military necessity.
- Summarizing the legal consequences of Israel’s actions, making it impossible to ignore the responsibility of international parties in changing the current situation.
Despite the fact that advisory opinions from the ICJ are not legally binding, they carry significant moral and legal weight and can eventually become part of international customary law. The importance of such advisory opinions lies in the fact that they come from the highest international court and set legal precedents. These opinions apply to Israel’s occupation of Palestinian territories, reinforcing Palestinian rights and challenging Israel’s behavior towards the Palestinian people.
In conclusion, the violations occurring in Gaza represent a clear breach of international legal resolutions, particularly under international law, international humanitarian law, and international criminal law. Israel has violated all of these. This highlights the Security Council’s failure to address the obvious violations of international peace and security or to mitigate the humanitarian crisis in Gaza. The failure is due to the use of veto power by some of its permanent members, preventing the issuance of a resolution condemning Israel for committing international crimes against Palestinians.
Will international justice for the Palestinian cause prevail as we have outlined, or will we witness selective and double standards of justice? Justice, as a timeless and universal concept, remains the ultimate goal of all laws and rules. In the context of the international community, justice aims to achieve peace and security.
