The International Court of Justice (ICJ) ordered for the third time on May 24 “additional provisional measures” against Israel in the case presented by South Africa for alleged violations of the 1948 Genocide Convention. The judges called for “immediately stopping its offensive.” military and any other action” in the Rafah area, in southern Gaza, that “may inflict on the Palestinian group in Gaza living conditions that could lead to its physical destruction, in whole or in part.”
Since the TIJ announcement, that is not what has happened. Israel carried out a military attack against Rafah in a “safe zone”, where civilians had not yet been ordered to “evacuate”, violating a mandate from the most important judicial body of the United Nations. It is a war crime, only comparable to the explosion and attack on the Red Cross camp in Iraq, back in 2003, which cost the life of the Brazilian diplomat Sergio Vieira de Melho. And not only that. A few days later, Israeli troops entered the center of the city, leading Israel to once again fail to comply with international legality by illegally occupying the area.
With the attack last Sunday, May 26, in which at least 45 people died, we see, once again, the lack of identification of military objectives and excessive military attacks. Killing two Hamas terrorists is no excuse to carry out a massacre. That goes against all logic of armed conflicts. Israel is violating international humanitarian law, by violating the methods or forms of conducting hostilities, that is, the jus in bello or Hague Law. And it faces trade sanctions up to the breaking of diplomatic relations, as mentioned in the UN Charter.
For the ICJ, which judges States, Israel “must abstain” from any action in Rafah that could cause the death of a substantial part of the Palestinian group, through bombings or through displacement to areas where, due to the attacks, it is not expected May they survive for a long time. Let us remember that the forced displacement of civilians is also a war crime, according to the jurisprudence of the War Crimes Tribunal of the former Yugoslavia. Beyond the “warnings” that the Israeli authorities permanently give to civilians to “move”, this itself constitutes an international crime.
Israel’s military offensive, according to the ICJ, aims to expel hundreds of thousands of civilians from Rafah without meeting their most basic needs. The judges established that the situation has deteriorated and is “catastrophic.” They have already warned that an escalation in Rafah puts thousands of people at “imminent” risk of death.
The ICJ rulings, although mandatory, require a decision by the Security Council to be effective. “If one of the parties to a dispute fails to comply with the obligations imposed on it by a ruling of the Court, the other party may appeal to the Security Council, which may, if it deems necessary, make recommendations or dictate measures for the purpose of that the execution of the ruling be carried out,” says article 94 of the UN Charter.
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The judges have before them a case of great importance for International Law. They must judge a State, such as Israel, accused of not preventing and committing or inciting the crime of genocide, which at the same time fails to comply with attacks and besieging Rafah, in open contradiction with the court’s order. Judges should not hesitate to order more urgent provisional measures: order a ceasefire or reiterate Israel’s legitimate defense, but respecting international humanitarian law, and thus impose its restrictive nature.
But the international community must also act: all members of the Genocide Convention. Furthermore, the UN must move quickly because there is a humanitarian disaster in Rafah. Failure to do so implies being in open contradiction with the rules-based order, with the legacy of Nuremberg and with the international protection of human rights.
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