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Israel - Hamas War UPSC NOTE

 What provisional measures did the International Court of Justice order in the case South Africa brought against Israel on its war with Hamas in the Gaza Strip?

  • Declining South Africa’s request, the Court refused to issue an immediate ceasefire order as it had done previously in the Ukraine versus Russia case

  • Ukraine’s situation is factually and legally distinguishable from Gaza

  • In the case instituted by Ukraine against Russia, both parties were also the two involved in the conflict, while Hamas, as a non-state actor, is not a party to the ongoing proceedings.

  • The Court ruled that Israel must, in accordance with its obligation under the Convention, take all measures within its power to prevent the commission of all genocidal acts against Palestinians in Gaza.

  • It will causes serious bodily or mental harm, killing civilians, and imposing measures intended to prevent births, among others. 

  • Furthermore, during the proceedings, South Africa accused Israel of furthering genocide through its state organs including the military. 

  • It pointed out that high-level Israeli politicians made genocidal statements, which were then

echoed by soldiers on the ground in Gaza while making TikTok reels.

  • The Court directed Israel to ensure “with immediate effect” that its military does not commit any genocidal acts either.

  • The Court also ordered Israel to permit the entry of urgently needed basic services and humanitarian assistance into the Palestinian enclave. 

  • South Africa had alleged that Israel’s blockade of food, water, medicine, and other essential supplies had pushed Palestinians to the “brink of famine.”

  • Additionally, Israel was ordered to preserve evidence relating to the claim. 

  • This will ensure that vital evidence is not lost or destroyed before the merits phase of the case.

  • When the Court has to conclusively determine if Israel has committed genocide or not

  • Such evidence will also be relevant for proceedings before the International Criminal Court (ICC).

  • Which is already investigating the possible commission of war crimes and crimes against humanity by both Hamas and Israel. 

  • South Africa’s request to permit fact-finding missions, international mandates, and other bodies access to Gaza to assist in the retention of evidence was not entertained by the Court.

  • With respect to compliance, Israel was directed to submit a report to the Court on all steps undertaken to abide by the measures imposed by the Court within one month of the ruling. 

  • This will also provide an opportunity to present more evidence such as the recently declassified cabinet minutes explaining Israel’s intent behind the hostilities.

  • Although no interim order was issued, the Court said that it was gravely concerned about the fate of the hostages abducted during Hamas’ attack on October 7, 2023, and called for their immediate and unconditional release.

Can the interim ruling be enforced by the ICJ?

  • The Court ascertained that the standard to order provisional measures had been met, that there is a “plausible” link between the rights sought to be protected by South Africa.

  • The measures it requests as well as a risk of irreparable harm and genuine urgency. 

  • This was an unsurprising declaration given the relatively low threshold for an interim ruling.

  •  The Court did not have to determine conclusively that genocidal acts in Gaza had, in fact, occurred. 

  • A prima facie determination is sufficient.

  • Relying on various statements from UN officials, special rapporteurs, and other international bodies regarding the catastrophic situation in Gaza.

  • It observed that “the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa

and for which it is seeking protection are plausible.

  • The Court took note of genocidal rhetoric from several senior Israeli officials to arrive at its conclusion

  • In particular, it referred to a statement by the Defence Minister of Israel Yoav Gallant calling for a “complete siege” of Gaza and indicating to the troops that they were “fighting against human animals.” 

  • Reference was also made to the President of Israel Isaac Herzog’s remark that there were no innocent civilians in Gaza since “the entire nation” was responsible. 

  • The cognisance of such statements is significant as they could establish the “genocidal intent” required to eventually arrive at a definite finding on the commission of the crime

  • Highlighting the need for emergency measures, the Court observed that “the catastrophic humanitarian situation in the Gaza Strip is at a serious risk of deteriorating further” before it can render a final judgment.

What is the verdict’s impact and what happens next?

  • The Court ruled that Israel must, in accordance with its obligation under the Convention.

  • Take all measures within its power to prevent the commission of all genocidal acts against Palestinians in Gaza.

  • It will causing serious bodily or mental harm, killing civilians, and imposing measures intended to prevent births, among others. 

  • Furthermore, during the proceedings, South Africa accused Israel of furthering genocide through its state organs including the military. 

  • It pointed out that high-level Israeli politicians made genocidal statements, which were then echoed by soldiers on the ground in Gaza while making TikTok reels

  • Addressing such concerns, the Court directed Israel to ensure “with immediate effect” that its military does not commit any genocidal acts either.

  • The Court also ordered Israel to permit the entry of urgently needed basic services and humanitarian assistance into the Palestinian enclave. 

  • South Africa had alleged that Israel’s blockade of food, water, medicine, and other essential supplies had pushed Palestinians to the “brink of famine.”

  • Additionally, Israel was ordered to preserve evidence relating to the claim

  • This will ensure that vital evidence is not lost or destroyed before the merits phase of the case, when the Court has to conclusively determine if Israel has committed genocide or not

  • Such evidence will also be relevant for proceedings before the International Criminal Court (ICC).

  • Which is already investigating the possible commission of war crimes and crimes against humanity by both Hamas and Israel. 

  • South Africa’s request to permit fact-finding missions, international mandates, and other bodies access to Gaza to assist in the retention of evidence was not entertained by the Court.

  • With respect to compliance, Israel was directed to submit a report to the Court on all steps undertaken to abide by the measures imposed by the Court within one month of the ruling. 

  • South Africa will have a chance to respond to this report. 

  • This will also provide an opportunity to present more evidence such as the recently declassified cabinet minutes explaining Israel’s intent behind the hostilities.

  • Although no interim order was issued, the Court said that it was gravely concerned about the fate of the hostages abducted during Hamas’ attack on October 7, 2023, and called for their immediate and unconditional release.

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