LAST UPDATE | 26 Jan
WITH THE INTERNATIONAL Court of Justice (ICJ) ordering preliminary injunctions against Israel today in the genocide case brought by South Africa, the question of whether or not Israel will comply with those orders remains an open one.
Based on comments from Israeli officials in the lead-up to today’s announcement, compliance seems unlikely.
Top of the South African list of requests for emergency measures was for the court to order Israel to “immediately suspend its military operations in and against Gaza”, but the court stopped short of calling for a ceasefire, instead ordering Israel to fulfil its obligation under the Genocide Convention.
South Africa also asked for Israel to take “reasonable measures” to prevent genocide and allow access for desperately needed aid.
Today the Court said Israel must do everything it can to “prevent the commission of all acts within the scope” of the Genocide Convention.
It also said Israel must take “all measures within its power to prevent and punish the direct and public incitement to commit genocide”.
Israel also 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,” the ICJ ruled.
Additionally, the court ruled that Israel must try to limit death and damage in Gaza.
Compliance or defiance
While the ICJ may be the UN’s highest court, compliance with preliminary injunctions – known as provisional measures – is not always a given.
Israeli Prime Minister Benjamin Netanyahu has said in recent weeks that his government would continue to prosecute its campaign in Gaza, regardless of the ICJ’s decision today.
“Nobody will stop us – not The Hague, not the axis of evil and not anybody else,” he said on 13 January.
Still, according to the ICJ statute – as well as precedent – provisional measure orders from the Court are legally binding.
While there are cases in which countries have obeyed provisional measure orders from the Court, there are perhaps just as many instances in which those orders were ignored, such as in the case of Ukraine vs Russia.
In that case, the Court extraordinarily issued orders identical to those requested by Ukraine ahead of the trial, including an order that Russia halt its invasion and withdraw forces from Ukraine.
Russia has not complied with that order and continued to carry out its war and occupation of parts of Ukraine.
Another recent case at the ICJ involving the Genocide Convention which produced provisional measures is Gambia vs Myanmar. Gambia alleged that Myanmar is violating the Convention through its attacks and abuses against the country’s Rohingya ethnic minority.
The Court issued provisional measure orders instructing Myanmar to abide by the Genocide Convention and therefore stop its human rights abuses against the Rohingya people.
The NGO Human Rights Watch has assessed that Myanmar has been violating the Court’s orders.
In the case taken by Nicaragua against the United States over American funding and support of the Contra militant group in the 1980s, the US refused to even take part in the proceedings and following the Court ruling in Nicaragua’s favour, has not complied.
The stakes in cases at the ICJ are not always the same. They may concern border disputes, detention of citizens in foreign countries, and in the case of South Africa vs Israel, the Genocide Convention.
An example of a case in which a country complied with provisional measures was that of India vs Pakistan, which centred around the arrest and execution sentence of an Indian national in Pakistan in 2017.
The Court ordered Pakistan not to execute the man pending the actual trial, an order Pakistan followed.
For more details and updates from today’s hearing at the ICJ, see our live blog here.
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