International Court of Justice and Adjudication on Israel`s Military Operations in Gaza and Human Rights Violation
Gautam Sen

Based on the United Nations General Assembly’s (UNGA) request for an advisory opinion on `Legal Consequences arising from Israel’s Policies and Practices in Occupied Palestinian Territory’, the principal judicial organ of the UN - International Court of Justice (ICJ) has just conducted a public hearing of more than 50 member states at its headquarters in Geneva from 19th to 26th February this year. This is the first time that the UN top Court has been mandated to spell out the legal consequences of Israel`s occupation of Palestine territory. The UNGA`s request was filed before the ICJ prior to last year`s October 7th Hamas assault on Israeli territory bordering Gaza.

The Hamas attack, supported by units of Palestine Islamic Jihad (an allied outfit functioning in close coordination with Hamas), Popular Resistance Committees (PRC), Popular Front for the Liberation of Palestine, (PFLP) and Democratic Front for Liberation of Palestine (DFLP), was without any immediate military provocation from Israel, vicious in its nature, involved the taking of 250 hostages and the killing of 1269 Israeli security personnel including civilians and some foreigners’ resident in Israel. However, the Israeli Defence Forces (IDF) military action in response in pursuit of Hamas and its Islamic Jihad warriors, by its ground and aerial force components, has been disproportionate and widespread covering entire Gaza, and most establishments in Gaza territory including Palestinian refugee camps, hospitals, schools and built-up structures. The IDF operations have caused huge damage to all types of establishments and buildings in Gaza. More than 29000 Gazans (nearly half of them children) including a few employees of United Nations Relief and Works Agency deployed in Gaza, have died and double the number been grievously injured. Of the total Gaza population 2.3 million, nearly the entire populace has become internally displaced, and have no dependable means of livelihood, civil sustenance and even rudimentary medication. As per the World Health Organisation and United Nations Children`s Fund, Gaza`s population, particularly its children, are now affected by malnutrition and various life-threatening diseases.

South Africa had in the meanwhile on 29th December 2023, filed an Application before the ICJ instituting proceedings against Israel, alleging violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide in relation to Palestinians in the Gaza Strip. The Application of South Africa also contained a request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of the Court, to protect against further, severe and irreparable harm to the rights of the Palestinian people under the above-cited Convention, and to ensure Israel`s compliance with its obligations under the said Convention not to engage in genocide, and to prevent and to punish genocide. South Africa again applied to the ICJ on 12th February 2024 invoking the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip against Israel inter-alia requesting for the indication of provisional measures pursuant to existing provisions of the Statute of the Court and relevant Articles of the Rules of the Court (ICJ). The ICJ has taken cognizance of South Africa`s further request of 12th February 2024 for additional provisional measures within the purview of the above-cited Convention, and after taking cognizance of Israel`s response thereon, has noted the perilous situation and emphasized that Israel remains bound to fully comply with its obligations under the above-referred Convention and with the Order already conveyed by the ICJ including the ensuring the safety and security of the Palestinians in the Gaza Strip.

The countries of the 57-member Organisation of Islamic Countries, Bolivia, Brazil and many advocacy groups and civil society groups, have endorsed South Africa`s Application of 29th December 2023, instituting proceedings against Israel before the ICJ alleging violation by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the ``Genocide Convention``) in relation Palestinians in the Gaza Strip. South Africa has requested the ICJ through the Application to order provisional measures under Article 41 of the Statute of the ICJ and Articles 73, 74 and 75 of the Rules of the Court (ICJ), in order to ``protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention `` and ``to ensure Israel`s compliance with its obligations under the said Convention, not to engage in genocide, and to prevent and punish those (indulging directly or indirectly) in genocide``. The ICJ had conducted public hearings on the request on 11th and 12th January 2024, and the Court delivered its Order 26th January 2024, on the provisional measures required to be taken by Israel. The essence of the ICJ`s order is the need for provisional measures covering the prevention of killing of the Palestinians in Gaza, direction to Israel to stop all action violative of the Genocide Convention on humanitarian grounds. The ICJ, had particularly observed that, the most recent developments in the Gaza Strip, and in Rafah - the primary border crossing between Gaza and Egypt through which humanitarian aid has been channelised into Gaza and also a place sheltering a huge number of internally displaced Gazans in particular, would exponentially increase what is already a humanitarian nightmare with untold regional consequences. Israel has incidentally threatened to start intense ground operations in Rafah after the forthcoming Ramadan Muslim religious festival, to flush out and kill the remaining Hamas terrorists.

However, in the hearings, the USA during its intervention before the ICJ has argued before the UN top Court that such a directive or legal ruling as sought by South Africa, should not be given by the ICJ without taking cognizance of international political realities, particularly Israel`s security needs. The representation of South Africa and of the other UN member states allied with it, have primarily premised their representation to the ICJ on the violation of humanitarian law i.e. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip, which has occurred to an extreme extent and is still continuing, consequent on the IDF`s operations. In the ICJ, where rulings by the top UN Court are based on majority decision of the 15 judges constituting the Court, the entire decision of the ICJ of 12th January 2024, on the provisional measures, have been adopted with huge majorities.

If the UN Security Council and General Assembly take some follow-up measures based on the ICJ deliberations and verdict, then only the ICJ can be viewed as an effective instrument for upholding international humanitarian law. Considering the disposition of majority of UN member states, there is no doubt that the UN General Assembly will endorse the ICJ verdict. However, the Security Council, the UN principal organ concerned with war and peace and threats to international order as per the UN Charter, is unlikely to act similarly if the views expressed before the ICJ by USA`s representative is any indicator. Britain has also expressed similar views before different UN bodies including the ICJ. Britain has also highlighted before the ICJ, that it has considerable concerns about the ruling of the UN top court, inter-alia stating that while Britain respects the role and independence of the ICJ, it has considerable concerns about this case being pursued by South Africa, which is not helpful in the goal of achieving a sustainable ceasefire.

In the light of the above-mentioned developments, it may be realistic to consider that the ICJ cannot be expected to play a crucial role on effectively upholding the humanitarian needs of the Palestinians in Gaza. The UN structure is such that, any action against protégés of UN Security Council permanent member states, is not feasible or sustainable. A US government of whichever political disposition, cannot be expected to allow Israel to be profiled before any UN forum, as an apartheid or genocidal state, by the American Jewish lobby, as the South African Application before the ICJ may eventually lead to. The best course of action would be to appoint a public official or rapporteur under UN aegis or the UN Security Council to be precise, to execute the normative directions of the ICJ. Therein may lie some hope for ameliorating the human rights conditions of the Palestinians in Gaza in particular.

(The paper is the author’s individual scholastic articulation. The author certifies that the article/paper is original in content, unpublished and it has not been submitted for publication/web upload elsewhere, and that the facts and figures quoted are duly referenced, as needed, and are believed to be correct). (The paper does not necessarily represent the organisational stance... More >>

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