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CNN International: ICJ: Israel Must Take Measures With "Immediate Effect" With Regards To Its Operation In Gaza. Aired 7-8a ET
Aired January 26, 2024 - 07:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[07:00:31]
MAX FOSTER, CNN ANCHOR: Hello. I'm Max Foster in London monitoring two breaking news stories for you this hour.
The International Court of Justice expected to rule and on an interim verdict on the South African case accusing Israel of genocide in Gaza.
Also, major sports news. The manager of the English premier league club Liverpool has announced that he's stepping down the end of the current season. More on that in a moment.
But, let's bring in Nic Robertson. He's in Tel Aviv for us.
Just try to sum up what this hearing is about and really what it can conclude.
NIC ROBERTSON, CNN INTERNATIONAL DIPLOMATIC EDITOR: Yeah, I think the big picture here, Max, is that a final ruling on whether or not on a South Africa's claim that Israel is perpetrating genocide in Gaza. That's going to take this court perhaps several years to decide what they -- and would involve the -- would involve the judges coming to the conclusion which would be a very, very high bar, that the Israeli government itself, and it's setting its priorities, setting its agenda, setting its policy that they were going to eradicate all or some of an ethnic group, population, religious -- religious, religious group, meaning, in this case the people in Gaza. That is a very, very high bar.
So what this ruling will be now is an interim ruling, made very quickly by these 15-plus judges that would -- that would not determine that level of that high bar, but would take a view that if they considered that in the future, there is a possibility that this issue of genocide may become something for which they find evidence over time, they would take this precautionary measure. And we know that South Africa asked for a number of measures quite a long list of measures. But at the top of that measure, those measures that South Africa asked for an interim ruling was that there would be an immediate end to the hostilities.
So that's sort of where we stand at the moment. Now, the judges themselves may not necessarily choose to pick any or all of those points at South Africa has asked for. We know that -- we know that, for example, there is, you know, a possibility that they might try to roll in some way that would increase or improve the humanitarian situation in Gaza. But it really isn't made at the moment, it's just guesswork until the judges actually speak.
But I think, you know, the other points to take away here are that Israel has been very, very strong in its defense. It did send representatives, legal representatives to defend itself at the ICJ. We will expect the Israeli government to comment after -- after hearing this ruling. And the ruling again, I think it's important to state here, that it's not binding, but potentially depending what it is could create more international pressure on Israel and principally the country to look to there would be the United States and that's something that may, you know, begin to take effect in a matter of weeks. But again, depends on the ruling here, Max.
FOSTER: Okay, Nic. We're just seeing that justice is there. There's, you know, a long line of them there. The ICJ, they know the world is watching. We're streaming globally and other networks are presumably as well because it really does speak to a truly seismic issue, a lot of people questioning know what real impact of verdict would have. Let's listen in.
JUDGE JOAN DONOGHUE, PRESIDENT, INTERNATIONAL COURT OF JUSTICE: -- or its decision on the request for indication of provisional measures submitted by South Africa in the case concerning application of the convention on prevention and punishment of the crime of genocide in the Gaza Strip, South Africa versus Israel.
Judge Robinson, who duly participated in both the deliberation and the final vote used for reasons made known to me, unable to take his seat on the bench today.
I would like to welcome the eminent representatives of the Republic of South Africa and the state of Israel, who are in the great hall of justice today. In particular, I recognize the presence of Her Excellency, Ms. Naledi Pandor, minister of International Relations and Cooperation of the Republic of South Africa.
[07:05:07]
I recall that on 29 December 2023, South Africa filed in the registry of the court an application instituting proceedings against Israel concerning alleged violations in the Gaza Strip of obligations under the Convention on the Prevention and Punishment of the Crime of Genocide to which I shall refer as the Genocide Convention, or the Convention.
The application of South Africa contained a request for the indication of provisional measures submitted with reference to Article 41 of the statute, and two Articles 73, 74, and 75 of the rules of court. In accordance with the usual practice, I shall not read the introductory paragraphs of the order which set out the procedural history of the case. I shall also omit or summarize some other paragraphs.
I shall therefore begin to reading of the order at paragraph 13. In the order, the court begins by recalling the immediate context in which the present case came before it. It observes that on 7 October 2023, Hamas and other armed groups present in the Gaza Strip carried out an attack in Israel, killing more than 1,200 persons, injuring thousands, and abducting some 240 people, many of whom continued to be held hostage.
Following this attack, Israel launched a large-scale military operation in Gaza by land, air, and sea which is causing massive civilian casualties, extensive destruction of civilian infrastructure, and the displacement of the overwhelming majority of the population in Gaza. The court is acutely aware of the extent of the human tragedy that is unfolding in the region and is deeply concerned about the continuing loss of life and human suffering. The ongoing conflict in Gaza has been addressed in the framework of several organs and specialized agencies of the United Nations.
In particular, reservations have been adopted by the general assembly and the security council of the United Nations, referring to many aspects of the conflict. The scope of the present case submitted to the court, however, is limited. As South Africa has instituted these proceedings under the Genocide Convention.
The court then turns to the conditions needed to be fulfilled in order for it to indicate provisional measures. With respect to the question of prima facie jurisdiction, the court observes that it may indicate provisional measures only if the provisions relied on by the applicant appear prima facie to afford a basis on which its jurisdiction could be founded. But it need not satisfy itself in a definitive matter that it has jurisdiction as regards the merits of the case in.
In the present case, South Africa seeks to found the jurisdiction of the court on Article 36, paragraph one of the statute of the court. And on article nine of the Genocide Convention. The court must therefore first determine whether those provisions prima facie confer upon it jurisdiction to rule on the merits of the case, enabling it if the other necessary conditions are fulfilled to indicate provisional measures.
Article Nine of the Genocide Convention provides, I quote, disputes between the contracting parties relating to the interpretation, application, or fulfillment of the present convention, including those relating to the responsibility of a state for genocide or for any of the other acts enumerated in an Article Three shall be submitted to the International Court of Justice at the request of any of the parties to the dispute, end of quote.
South Africa and Israel are both parties to the Genocide Convention. And neither of them has entered a reservation to article nine or any other provision of the convention. The court then recalls that Article Nine of the Genocide Convention makes its jurisdiction conditional on the existence of a dispute relating to the interpretation application, or fulfillment of the convention a dispute is a disagreement on a point of law or fact, a conflict of legal views are of interest between parties. In order for a dispute to exist, it must be shown that the claim of one party is positively opposed by the other. The two sides must hold clearly opposite views concerning the question of their performance or nonperformance of certain international obligations. To determine whether a dispute exists in the present case, the court cannot limit itself to noting that one of the parties maintains the convention applies while the other denies it.
[07:10:03]
Since South Africa has invoked as a basis for the court's jurisdiction, the compromissory clause of the Genocide Convention, the court must also ascertain at the present stage of the proceedings whether it appears that the acts and omissions complained of by the applicant are capable of falling within the scope of that convention precia (ph) materia.
The court recalls that for purposes of deciding whether a dispute existed between the parties at the time of the filing of the application, it takes into account in particular any statements or documents exchanged between the parties, as well as any exchanges made in multilateral settings. In so doing, it pays special attention to the author of the statement or document, its intended or actual addressee, and its content. The existence of a dispute is a matter for objective determination by the court. It is a matter of substance, not a question of form or procedure.
The court notes that South Africa issued public statements in various multilateral and bilateral settings in which it expressed its view that in light of the nature, scope, and extent of Israel's military operations in Gaza, Israel's actions amounted to violations of its obligations under the Genocide Convention.
For instance, at the resumed tenth emergency special session of the United Nations General Assembly on 12 December 2023, at which Israel was represented, the South African representative to the United Nations stated that, I quote the events of the past six weeks in Gaza have illustrated that Israel is acting contrary to its obligations in terms of the Genocide Convention, end of quote.
South Africa recalled this statement in its note reval (ph) of 21 December 2023, to the embassy of Israel in Pretoria. The court notes that Israel dismissed any accusation of genocide in the context of the conflict in Gaza, in a document published by the Israeli Ministry of Foreign Affairs on 6 December 2023, which was subsequently updated and reproduced on the website of the Israel Defense Forces on 15 December 2023 under the title the War Against Hamas Answering Your Most Pressing Questions, setting that I quote, the accusation of genocide against Israel is not only wholly unfounded as a matter of fact and law, it is morally repugnant, end of quote.
In the document, Israel also stated that, I quote, the accusation of genocide is not just legally and factually incoherent, it is obscene, and that there was no valid basis in fact or law for the outrageous charge of genocide, end of quote. In light of the foregoing, the court considers that the parties appear
to hold clearly opposite views as to whether certain acts or omissions allegedly committed by Israel in Gaza amount to violations by the latter of its obligations under the Genocide Convention. The court finds that the aforementioned elements are sufficient at this stage to establish a prima facie. The existence of a dispute between the parties relating to the interpretation, application, or fulfillment of the genocide convention.
As to whether the acts and omissions complained of by the applicant appear to be capable of falling within the provisions of the Genocide Convention, the court recalls that South Africa considers Israel could be responsible for committing genocide in Gaza and for failing to prevent and punish genocidal acts. South Africa contents that Israel has also violated other obligations under the Genocide Convention, including those concerning conspiracy to commit genocide, direct and public incitement to genocide, attempted genocide, and complicity in genocide.
At the present stage of the proceedings, the court is not required to ascertain whether any violations of Israel's obligations under the genocide convention have occurred such a finding could only be made by the court at the stage of the examination of the merits of the present case. At the stage of making an order on the request for an indication of provisional measures, the court's task is to establish whether the acts and omissions capable -- sorry, complained of by the applicant appear to be capable of falling within the provisions of the Genocide Convention.
In the court's view, at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the convention, in light of the following. The court concludes that prima facie, it has jurisdiction pursuant to Article Nine of the convention to entertain the case.
[07:15:02]
Given this conclusion, the court considers that it cannot exceed to Israel's request that the case be removed from the general list.
The court turns next to the question of standing of South Africa. Court notes that the respondent did not challenge the standing of the applicant in the present proceedings. In the case concerning application of the convention on the prevention and punishment of the crime of genocide, the Gambia v. Myanmar, where Article Nine of the Genocide was -- of the Genocide Convention was also invoked, the court observed that all states parties to the convention have a common interest to ensure that prevention, suppression, and punishment of genocide by committing themselves to fulfilling the obligations contained in the convention.
Such common interest implies that the obligations in question are owed by any state party to all the other state parties to the relevant convention. Their obligations erga omnes partes, in the sense that each state party has an interest in compliance with them in any given case.
The common interest in compliance with the relevant obligations under the Genocide Convention entails that any state party without distinction is entitled to invoke the responsibility of another state party for an alleged breach of its obligation erga omnes partes. Accordingly, the court found that any state party to the Genocide Convention may invoke the responsibility of another state party, including through the institution of proceedings before the court with a view to determining the alleged failure to comply with its obligations, erga omnes partes under the convention, and two, bringing a failure to the end.
The court concludes prima facie that South Africa has standing to submit to it the dispute with Israel concerning alleged violations of obligations under the Genocide Convention.
The court then turns to the question of the rights whose protection is sought and the link between such rights and the measures requested. It recalls that its power to indicate provisional measures under Article 41 of the statute has as its object, the preservation of the respective rights claimed by the parties in a case pending its decision on the merits thereof.
It follows that the court must be concerned to preserve by such measures the rights which may subsequently be a judged by it to belong to either party. Therefore, the court may exercise this power only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible. At this stage of the proceedings, however, the court is not called upon to determine definitively whether the rights which South Africa wishes to seek protected exist. It need only decide whether the rights claimed by South Africa and for which it seeks protection are plausible.
Moreover, a link much must exist between the rights his protection is sought, and the provisional measures being requested. The court recalls that in accordance with article one of the convention, all states parties there to have undertaken to prevent and to punish the crime of genocide. Article Two provides that, I quote, genocide means any of the following acts committed with intent to destroy in whole or in part, a national, ethnical, racial, or religious group as such, A, killing members of the group, B, causing serious bodily or mental harm to 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, D, imposing measures intended to prevent births within the group, E, forcing forcibly transferring children of the group to another group, end of quote.
Pursuant to article three of the Genocide Convention, the following acts are also prohibited by the convention, conspiracy to commit genocide, direct and public incitement to commit genocide. Attempt to commit genocide and complicity in genocide.
The provisions of the convention are intended to protect the members of a national ethnical, racial, or religious group from acts of genocide or any other punishable acts enumerated in Article Three. The court considers that there is a correlation between the rights of members of groups protected under the genocide convention the obligations incumbent on state parties there, too. And the right of any state party to seek compliance there with by another state party.
As the court has stated in other cases, in order for acts to fall within the scope of Article Two of the convention, the intent must be to destroy at least a substantial part of a particular group.
[07:20:06]
This is demanded by the very nature of the crime of genocide, since the object and purpose of the convention as a whole is to prevent the intentional destruction of groups the part -- part targeted must be significant enough to have an impact on the group as a whole. The Palestinians appear to constitute a distinct national, ethnical, racial, or religious group, and hence a protected group within the meaning of Article Two of the Genocide Convention. The court observes that according to United Nations sources, the Palestinian population in the Gaza strip comprises over 2 million people. Palestinians in the Gaza Strip form a substantial part of the protected group.
The court notes that the military operation being conducted by Israel following the attack of 7 October 2023 has resulted in a large number of deaths and injuries, as well as massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure while figures relating to the Gaza strip cannot be independently verified. Recent information indicates that 25,700 Palestinians have been killed, over 63,000 injuries have been reported, over 360 housing units have been destroyed or partially damaged and approximately 1.7 million persons have been internally displaced.
The court takes note in this regard of the statement by the United Nations undersecretary general for humanitarian affairs and emergency relief coordinator, Mr. Martin Griffiths, on 5 January 2024.
I quote: Gaza has become a place of death and despair. Families are sleeping in the open as temperatures plummet. Areas where civilians were told to relocate for their safety have come under bombardment. Medical facilities are under relentless attack.
A public health disaster is unfolding. Gaza has simply become uninhabitable. Its people are witnessing daily threats to their very existence while the world watches on, end of quote.
Following a mission to north Gaza, the World Health Organization reported that as of 21 December 2023, I quote, an unprecedented 93 percent of the population of Gaza is facing crisis levels of hunger, with insufficient food and high levels of malnutrition, end of quote.
The court further notes the statement issued by the commissioner- general of the United Nations Relief and Works Agency for Palestinian -- Palestine refugees in the near east, or UNRWA, Mr. Philippe Lazzarini, on 13 January 2024.
I quote: It's been 100 days since the devastating war started, killing and displacing people in Gaza following the horrific attacks that Hamas and other groups carried out against people in Israel. It's been 100 days of ordeal and anxiety for hostages and their families. In the past 100 days, sustained bombardment across the Gaza Strip caused the massive displacement of a population that is in a state of flux, constantly uprooted and forced to leave overnight, only to move to places which are just as unsafe.
This war affected more than 2 million people, the entire population of Gaza, many will carry his lifelong scars, both physical and psychological. The vast majority, including children, are deeply traumatized, overcrowded, and unsanitary UNRWA shelters have become home to more than 1.4 million people. They lack everything, from food to hygiene, to privacy. People live in inhuman conditions where diseases are spreading, including on children.
They live through the unlivable in the -- with the clock ticking fast towards famine. The plight of children in Gaza is especially heartbreaking, an entire generation of children is traumatized and will take years to heal. Thousands have been killed, maimed, and orphaned, hundreds of thousands are deprived of education. Their future is in jeopardy with far-reaching and long-lasting consequences.
The UNRWA commissioner-general also stated that the crisis in Gaza is, I quote compounded by dehumanizing language, end of quote. In this regard, the court has taken note of a number of statements made by senior Israeli officials.
[07:25:01]
It calls attention in particular to the following examples. On 9 October 2023, Mr. Yoav Gallant, defense minister of Israel, announced that he had ordered a complete siege of Gaza City and then that there would be no electricity, no food, no fuel. And that everything was closed.
On the following day, Minister Gallant stated -- speaking to Israeli troops on the Gaza border, I quote: I have released all restraints. You saw what we are fighting against it. We are fighting human animals. This is the ISIS of Gaza. This is what we are fighting against.
Gaza will return to what it was before. There will be no Hamas. We will eliminate everything. If it doesn't take one day, it will take a week. It will take weeks or even months. We will reach all places, end of quote.
On 12 October 2023, Mr. Isaac Hertzog, president of Israel, stated, referring to Gaza, I quote: We are working, operating militarily according to rules of international law, unequivocally. It is an entire nation out there that is responsible.
It is not true. This rhetoric about civilians not aware, not involved. It is absolutely not true. They could have risen up. They could have fought against that evil regime, which took over Gaza in a coup d'etat.
But we are at war. We are at war. We are at war. We are defending our homes. We are protecting our homes.
That's the truth. And when a nation protects its home, it fights. And we will fight until we break their backbone, end of quote.
On 13 October 2023, Mr. Israel Katz, then minister of energy and infrastructure of Israel, stated on X, formerly Twitter, I quote: We will fight the terrorist organization Hamas and destroy it all the civilian population in Gaza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world end of quote.
The court also takes note of a press release of 16 November 2023, issued by 37 special repertoires, independent experts and members of working groups, part of the special procedures of the United Nations Human Rights Council, in which they voiced alarm over, I quote, discernibly genocidal and dehumanizing rhetoric coming from senior Israeli government officials, end of quote.
In addition, on 27 October 2023, the United Nations Committee on the Elimination of Racial Discrimination observed that it was highly concerned about the sharp increase in racist hate speech and dehumanization directed at Palestinians since 7 October.
In the court's view, the aforementioned facts and circumstances are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of Palestinians and Gaza to be protected from acts of genocide and related prohibited acts identified in Article Three, and the right of South Africa to seek Israel's compliance with the ladders obligations under the convention.
The court then turns to the condition of the link between the plausible rights claimed by South Africa and the provisional measures requested. It considers that by their very nature, at least some of the provisional measures sought by South Africa are aimed at preserving the plausible rights it asserts on the basis of the Genocide Convention in the present case, namely the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts mentioned in Article Three. And the right of South Africa to seek Israel's compliance with the latter's obligations under the convention. Therefore, a link exists between the rights claimed by South Africa that the court has found to be plausible. And at least some of the provisional measures requested.
The court turns next to the question of risk of irreparable prejudice and urgency. It notes that pursuant to Article 41 of its statute, it has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings or when the alleged disregard of such rights might entail irreparable consequences.
However, the power of the court to indicate provisional measures will only be exercised if there's urgency in the sense that there's a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the court gives its final decisions.
[07:30:07]
The condition of urgency is met when the acts susceptible of causing irreparable prejudice can occur at any moment before the court makes the final decision in the case. The court must therefore consider whether such a risk exists at this stage of the proceedings.
The court is not called upon for purposes of its decision on the request for the indication of provisional measures to establish the existence of breaches of obligations under the Genocide Convention, but to determine whether the circumstances require the indication of provisional measures for the protection of rights under that instrument. As already noted, the court cannot at this stage make definitive findings of fact and the right of each party to submit arguments with respect to the merits remains unaffected by the court's decision on the request for the indication of provisional measures.
The court recalls that as underlined in General Assembly Resolution 9061 of 11 December 1946, I quote: Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings. Such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law into the spirit and aims of the United Nations, end of quote
In view of the fundamental values sought to be protected by the Genocide Convention, the court considers that the plausible rights in question in this proceeding, namely the right of Palestinians in the Gaza Strip to be protected from acts of genocide and related prohibited the acts identified in Article Three of the Genocide Convention, and the right of South Africa to seek Israel's compliance with the latter's obligation under the convention are of such a nature that prejudice to them is capable of causing irreparable harm.
During the ongoing conflict, senior United Nations officials have repeatedly called attention to the risk of further deterioration of conditions in the Gaza Strip. The court takes note, for instance, of the letter dated 6 December 2023, whereby the secretary general of the United Nations brought the following information to the attention of the Security Council. I quote: The health care system in Gaza is collapsing. Nowhere is safe in Gaza. Amid constant bombarding by the Israel Defense Forces, and without shelter or the essentials to survive, I expect public order to break -- to completely break down soon due to the desperate conditions rendering even limited humanitarian assistance and possible and even worse situation could unfold, including epidemic diseases an increased pressure for mass displacement into neighboring countries.
We are facing a severe risk of collapse of a humanitarian system. The situation is fast deteriorating into a cat catastrophe with potentially irreversible implications for Palestinians as a whole and for peace and security in the region. Such an outcome must be avoided at all costs, end of quote.
On 5 January 2024, the secretary general wrote again to the Security Council, providing an update on the situation in the Gaza Strip, and observing that, I quote, sadly, devastating levels of death and destruction continue, end of quote.
The court also takes note of the 17 January 2024 statement issued by the UNRWA commissioner-general, upon return from his fourth visit to the Gaza strip since the beginning of the current conflict in Gaza. I quote: Every time they visit Gaza, I witnessed how people have sunk further into despair, with the struggle for survival consuming every hour, end of quote.
The court considers that the civilian population in the Gaza Strip remains extremely vulnerable. It recalls that the military operation conducted by Israel after 7 October 2023 has resulted inter alia, intensive thousands of deaths and injuries, and the destruction of homes, schools, medical facilities, and other vital infrastructure, as well as displacement on a massive scale. The court notes that the operation is ongoing and that the prime minister of Israel announced on 18 January 2024 that the war, I quote, will take many more long months, end of quote.
At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines, or heating.
[07:35:07]
The World Health Organization has estimated that 15 percent of the women giving birth in Gaza Strip are likely to experience complications and indicates that maternal and newborn death rates are expected to increase due to the lack of access to medical care. In these circumstances, the court considers that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the court renders its final judgment.
The court recalls Israel statement that it has taken certain steps to address and alleviate the conditions faced by the population in the Gaza Strip. The court further notes that the attorney general of Israel recently stated that a call for intentional harm to civilians may amount to a criminal offense, including that of incitement. And that several such cases are being examined by Israeli law enforcement authorities.
While such steps are to be encouraged, they are insufficient to remove the risk that irreparable prejudice will be caused before the court issues its final decision in the case. In light of the foregoing, the court considers that there is urgency in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the court to be plausible before it gives its final decision. The court concludes on the basis of the aforementioned considerations that the conditions required by statute for it to indicate provisional measures are met. It is therefore necessary pending its final decision for the court to indicate certain measures in order to protect the rights claimed by South Africa that the court has found to be plausible. The court recalls that it has the power under its statute when a request for provisional measures has been made to indicate measures that are in whole or in part other than those requested. In the present case, having considered the terms of the provisional measures requested by South Africa and the circumstances of the case, the court finds that the measures indicated need not be identical to those requested. The court considers that with regard to the present situation, Israel must in accordance with its obligations under the genocide convention in relation to Palestinians in Gaza take all measures within its power to prevent the commission of all acts within the scope of Article Two of the convention.
In particular, A, killing groups -- members of the group, B, causing serious bodily or mental harm to 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. The court recalls that these acts fall within the scope of article two of the convention when they are committed with the intent to destroy in whole or in part, the group has such.
The court further considers that Israel must ensure with immediate effect that its military forces do not commit any of the aforementioned acts. The court is also the view that Israel must take measured within its power to prevent and punish the direct and public incitement to commit genocide in relation to the members of the Palestinian group in the Gaza Strip.
The court further considers that Israel must take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip. Israel must also take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article Two and Article Three of the Genocide Convention against members of the Palestinian group in the Gaza Strip.
Regarding the provisional measure requested by South Africa that Israel must submit a report to the court on all measures taken to give effect to the order. The court recalls that it has the power reflected an article 78 of the rules of court to request the parties to provide information on any matter connected with the implementation of any provisional measures it has indicated. In view of the specific provisional measures, it has decided to indicate, the court considers that Israel must submit a report to the court on all measures taken to give effect to this order within one month as from the date of this order.
[07:40:06]
The report so provided shall then be communicated to South Africa, which shall be given the opportunity to submit to the court its comments there on. The court recalls that its orders on provisional measures under Article 41 of the statute have binding effect, and thus create international legal obligations for any party to whom the provisional measures are addressed. The court reaffirms that the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the court to deal with the merits of the case or any questions related to the admissibility of the application or to the merits themselves. It leaves unaffected the right of the governments of the Republic of South Africa and the state of Israel to submit arguments in respect of these questions.
The order then states that the court deems it necessary to emphasize that all parties to the conflict in the Gaza Strip are bound by international humanitarian law. It is gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023, and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release.
I shall now read out the operative part of the order.
For these reasons, the court indicates the following provisional measures. One, by 15 votes to two, the state of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article Two of the convention. In particular, A, killing members of the group, B, causing serious bodily or mental harm to 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.
In favor, President Donoghue, Vice President Gevorgian, Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant, Judge ad hoc Moseneke.
Against: Judge Sebutinde, Judge ad hoc Barak.
By 15 votes to two, the state of Israel shall ensure with immediate effect that its military does not commit any acts described in point one above.
In favor, President Donoghue, Vice President Gevorgian, Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant, Judge Ad Hoc Moseneke.
Against, Judge Sebutinde, Judge ad hoc Barak.
By 16 votes to one, the state of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip.
In favor, President Donoghue, Vice President Gevorgian, Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant, Judges ad hoc Barak, Moseneke. Against, Judge Sebutinde.
By 16 votes to one, the state of Israel shall take immediate and effective measures to ensure the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.
In favor, President Donoghue, Vice President Gevorgian, Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant, Judges ad hoc Barak, Moseneke.
Against, Judge Sebutinde.
By 15 votes to two, the state of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article Two and Article Three of the Convention on the Prevention and Punishment of the Crime of Genocide Against Members of the Palestinian Group in the Gaza Strip.
[07:45:07]
In favor, President Donoghue, Vice President Gevorgian, Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant, Judge Ad Hoc Moseneke.
Against, Judge Sebutinde, Judge ad hoc Barak.
By 15 votes to two, the state of Israel shall submit a report to the court on all measures taken to give effect to this order within one month as from the date of the order.
In favor, President Donoghue, Vice President Gevorgian, Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant, Judge Ad Hoc Moseneke.
Against, Judge Sebutinde, Judge ad hoc Barak.
I shall now call upon the registrar to read the operative part of the order in French.
(SPEAKING FRENCH)
FOSTER: So there we have the court that there's a translation currently going on, obviously, but we're going to bring in CNN's Nic Robertson in Tel Aviv to try to bring together what we've heard so far, because this is deep, complex international law and its ruling on a very complex case.
I mean, how would you describe the headlines that you saw coming out of it?
ROBERTSON : Yeah, I think the headlines there that there's a very definitive decision by the court that feels that it is a fit to judge that be there's a case the judge -- a case to judge here, and the decision or its ruling here that is binding but not enforceable, binding, but not enforceable. This decision that Israel should in the group specify the Palestinians in Gaza should avoid and stop the old deaths or injuries and anything that will call physical and psychological harm that it should instruct its military in that way, that it should also prevent any and hold accountable any forms of incitement.
And the previously the judge had read texts from the person who is now foreign minister from the president, from the defense minister in the days after October 7th, in its defenses, Israel said that these were -- these were sort of in the heat of the moment.
But the judge didn't get onto some of the more subsequent comments that have been made about the people of Gaza by members of Prime Minister Netanyahu's right-wing government. We can only imagine that they would be further down, their list. Things such as calling for all Palestinians to leave Gaza.
Obviously, that's not something that the judges are taking a view on now that this is in fact, government policy. That's not what they're saying here, but what they are saying is that anyone who makes those comments should be held accountable. So that's a very clear warning for Prime Minister Netanyahu and some members of his cabinet.
And I think the other big top line there is very clearly the depiction of the utter horrendous and terrible nature of the conflict in Gaza, right now and the impact that its having on the population that close to the crisis in terms of -- in terms of food, in terms of medical situation, that clear a view that this situation is going to get worse by the time they make their final ruling, whenever that may be an a year or so.
So these decisions right now and the humanitarian one are pressing, also saying that Israel should write back in a months time, should give a written report on everything it's done. What South Africa had called for as its first line of these sort of interim measures, if you will was that there should be a complete cessation in hostilities. Now, the judge's didn't call that. They decided to make their own view on what the measures these interim measures should be.
And I think it was also notable that before -- before the final list of preventative measures, if you will, that were being listed there the judge said that Hamas should -- should immediately handover all hostages.
[07:50:12]
I think that was a significant point that was being made there. I think that some in Israeli government will breathe a certain sigh of relief that they haven't been told to immediately end the conflict in those stark terms. This will bring international, greater international pressure potentially from the United States for Israel to adhere to those things to avoid the deaths injuries, psychological trauma of Palestinians.
And I think one of the point to note there that we heard the judge in describing the situation and medical situation for Palestinians. We know that many, many, hundreds of women in Gaza are giving birth in terrible conditions. She talked about the U.N. report that said 15 percent of women will go through complications when she said that it was important that they're -- that in this ruling about the deaths, avoiding deaths, avoiding injuries, that there should not be -- that pregnancy should be taken into account here.
FOSTER: Okay. It'd be interesting to hear it from the U.S. as a key ally for Israel, what they think of all of that, let's get the reaction now from South Africa, because South Africa brought this case. David McKenzie is there for us.
I mean, there -- it's difficult to talk about whether or not they want it, but there are some interim measures here that they could look to ensuring, Israel has to ensure it doesn't commit genocide, punishing those who incite genocide, providing -- prevent destruction of evidence of genocide. There was some progress here on the genocide issue, but its not as clear cut as perhaps South Africa had hoped.
DAVID MCKENZIE, CNN SENIOR INTERNATIONAL CORRESPONDENT: Yes, I think so, but I think you have to dial it back a little bit, Max, just the fact from the South African governments perspective that the court ruled that that has jurisdiction over this case based on the prima facie, meaning the face value submissions that were given by both South Africa and Israel, and that they couldn't dismiss it outright, even that will be seen as a legal victory by the South African government and the lawyers that submitted this case to the ICJ.
So that is very important from the perspective of South Africa and others who feel the same way about what has been happening in Gaza of the last few months?
Yes. As Nic mentioned, the very first line in the provisional requests by South Africa was to end the fighting. They did not get that. And that will be seen as a way the court perhaps give Israel some wriggle room in this situation.
They did say though, that based on what they had seen and they cited multiple statements by both Israeli officials, as Nic mentioned, and U.N. officials on the ground about the severe humanitarian situation in Gaza, they said that there's an urgent need to have a provisional order from the court, this doesn't mean that they found in any way that Israel had committed any acts of genocide. But they say there is enough in the original submissions for them to investigate this further and in the months ahead, we might get an answer on that will be very difficult to prove, of course.
But this will be seen very much. I think as a victory from the South African perspective in that court, the fact that they brought this to the court, and it will be a symbolic victory for this country and for other countries who in their view want to show that Israel needs to change this behavior in Gaza. Israel for its part, of course, has denied all of these allegations and said that it's a spurious argument for South Africa to say what's happening in the that will against Hamas is a genocide, and they say it sets a dangerous precedent -- Max.
FOSTER: Okay. Thank you so much.
Let's speak to Ben Wedeman. He joins us from Beirut.
Because, you know, Israel arguing its not genocide. So all of these provisions affected apply to what it says it's carrying out in Gaza. So, I mean, what real difference does this make to anyone in Gaza?
BEN WEDEMAN, CNN SENIOR INTERNATIONAL CORRESPONDENT: Immediately, nothing at all. But listen, I'm sure many people, even there were listening to this, and did amounted to perhaps not a binding case of genocide against Israel, but a damning condemnation of Israel's now 112-day war on Gaza. I mean, what you heard was this series of statements of from U.N. officials about just how catastrophic the humanitarian situation in Gaza is.
[07:55:03]
And also as Nic and David mentioned, the judge sort of recounted, this variety of long list of statements by senior Israeli officials calling for the destruction, the elimination of Gaza and therefore this ruling, if you can even call it that, or rather these opinions issued by the International Court of Justice will be positively received throughout -- certainly, the Arab world, although there's a certain irony that its not any members of the Arab League that are bringing this case against Israel, it's distant, South Africa.
Nonetheless, certainly one of the things that the judge mentioned is that Israel must immediately provide urgently needed basic needs of Gaza, certainly does address something that's the situation there clearly, in terms of food and shelter and medical care and basic services like electricity and running water, which by and large no longer exist in Gaza. That perhaps might bring a spark of hope to the desperate people of Gaza.
But how long that's going to actually take to bring into effect, if at all, is questionable because of course, even though these opinions have binding effect there is no mechanism for implementation, for execution that has to go through the Security Council, and let's not forget that the United States has for decades used its veto power to protect Israel and it's hard to say at this point what the United States will do.
But if you take history as an example, it probably will not be in favor of the implementation of all of these opinions put out by the ICJ -- Max.
FOSTER: I mean, what actually has this case done? I understand that it's highlighted a lot of concerns about the way Israel has perpetrated this war. But, you know, whilst it may have jurisdiction, it can't enforce any of these laws, can it? And even if it could, it will be sometime down the road. Yes, and at, the end of the day, it comes down to the government of Israel to implement them. The question is, and I'm sure we'll hear in the coming hours Israel's reaction.
But yes, there is no way for the court to make Israel do this. That requires sort of consensus among the international community and particularly its major supplier of arms, money, and diplomatic support, the United States. If the United States, for some surprising reason comes down on the side of the ICJ, then that certainly would change things, but I wouldn't hold my breath waiting for it to happen, Max.
FOSTER: Thanks, Ben.
We're going to have to leave it there. We're coming back to this at the top of the hour. Of course, we've got Melissa Bell is actually that court, U.N.'s highest courts in more details on this coming up, including the breaking news as well the football world.
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