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International Court of Justice Orders Israel to Prevent Genocide in Gaza But Fails to Order Ceasefire

Written by on 26/01/2024


This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: In a landmark ruling today, the International Court of Justice found plausible risk that Israel is committing genocide in Gaza, and ordered provisional measures but stopped short of calling for an immediate ceasefire. The ruling was read out by the president of the court, Joan Donoghue. She began with the finding that South Africa had jurisdiction to bring the case against Israel.

JUDGE JOAN DONOGHUE: 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 IX of the convention, to entertain the case.

AMY GOODMAN: South Africa had asked the court, as a matter of extreme urgency, to impose emergency measures to protect Palestinians in Gaza. The president of the court went on to read out the findings regarding South Africa’s request for provisional measures.

JUDGE JOAN DONOGHUE: 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 in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III and the right of South Africa to seek Israel’s compliance with the latter’s 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 III 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.

AMY GOODMAN: The president of the court, Joan Donoghue, cited the killing of Palestinians in Gaza, mass displacement, deprivation of aid and other charges brought by South Africa, and went on to say the court found a plausible risk that Israel is committing genocide in Gaza.

JUDGE JOAN DONOGHUE: 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 its 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.

AMY GOODMAN: For more, we’re joined by three guests. We’re going to begin in Haifa with Diana Buttu, Palestinian human rights attorney, former adviser to the negotiating team of the Palestine Liberation Organization. In 2004, Diana Buttu was part of the legal team that won the case before the International Court of Justice which ruled Israel’s separation wall in the West Bank is illegal under international law.

Diana Buttu, welcome back to Democracy Now! If you can respond to the court’s ruling, that was just released moments before we went to air?

DIANA BUTTU: This is an amazing ruling, because it highlights everything that the South African team and, of course, Palestinians have been saying the entire time, which is that Israel is plausibly carrying out genocide. And so, the fact that the court has indicated to Israel that they have to take measures to prevent genocide, to make sure that soldiers are doing the same, to prosecute those individuals who are inciting, including high government officials, and ensure that there is effective humanitarian aid, is precisely what was sought by Palestinians. It’s now up to the world to make sure that this court ruling is actually enacted.

AMY GOODMAN: But they did not call for an immediate ceasefire, as South Africa asked. The significance of this?

DIANA BUTTU: I think it’s very difficult at this stage for the court to be pushing for a ceasefire. But in the fact that they said, first and foremost, that Israel has to take all measures to prevent acts of genocide is enough for the world to then be pushing for a ceasefire. It’s really up to the international system as we know it to make sure that genocide is not carried out. And so it’s imperative that this be followed up by countries around the world making sure that Israel doesn’t get to do whatever it wants to do with Palestinians in Gaza and continue this genocide.

AMY GOODMAN: And can you talk about the woman who we heard delivering the pronouncement of the court, Joan Donoghue, a former State Department official, though she’s not representing the United States in this? She represents the court. She was in the State Department under President Obama.

DIANA BUTTU: Well, yes, and she was the — she was one of the judges, one of 17 judges on the bench — two of them are ad hoc — one of the 15 permanent judges, who ruled in favor of all of the measures that had been sought. Her term actually expires on February the 6th, and so she won’t be with the court after that. But it was very important that this decision not just be a split court. But you can tell by the breadth of it that of the 17 judges, two being ad hoc, that on most of the issues, it was 15 versus 2, one being the Ugandan judge and the second, of course, being the Israeli judge, and in some cases it being 16 to 1, with the one, ironically, being the Ugandan judge.

AMY GOODMAN: Why the Ugandan judge?

DIANA BUTTU: It’s not clear. It’s not entirely clear why. It’s clear why the Israeli judge, obviously. But what’s more important is the fact that we see that this court has overwhelmingly decided in favor of South Africa, has overwhelmingly determined that there is plausible risk of genocide. And it becomes imperative upon the world community to now act. You know, the fact that it’s taken 112 days for the world to finally recognize that this is genocide, and that it had to go to court, says something about the international legal system as we know it, which is that it’s broken. But I’m hoping that based on this, the world will now begin to act, rather than hiding behind all these false claims that Israel has repeated for the past 112 days.

AMY GOODMAN: I want to bring Raz Segal into this discussion, Israeli historian, associate professor of Holocaust and genocide studies at Stockton University, endowed professor in the study of modern genocide, co-authored a recent piece for Al Jazeera headlined “Intent in the genocide case against Israel is not hard to prove.” He’s joining us from Philadelphia. Professor, welcome back to Democracy Now! Your response to this ruling?

RAZ SEGAL: Hello. Good morning. Thank you for having me.

I think this is, really, an unprecedented ruling. It signals, first and foremost, the end of Israeli impunity in the international legal system, which is huge, right? Israel has enjoyed impunity in the international legal system for decades in the face of mounting evidence of gross violations of international law, of mass violence, occupation, siege, so on. This is the end of that era.

So it’s just a beginning of a process that, really, I think, now with a ruling that basically recognizes the possibility of genocide, the fact that Israel is likely committing genocidal acts — this is a beginning of a process of isolating Israel, because any university, company, state now will have to consider, moving forward, whether it continues — or doesn’t continue, in many cases, I think — to engage with Israel, because it is likely committing genocide. This also legally triggers third-state responsibility on issues of prevention and complicity with genocide.

And it’s significantly important today, where in a few hours in a court in Florida there will be the hearing in the case that the Center for Constitutional Rights has brought against Biden, Blinken and Austin, indeed, on complicity with genocide, U.S. complicity with genocide, and the failure to prevent a genocide. So, this might have, actually, a certain effect even on this case today in California moving forward.

So, this is really unprecedented. Yes, it is a disappointment that the court did not order an immediate ceasefire. But it did order Israel to cease from any genocidal acts, which de facto is actually an order for a ceasefire.

AMY GOODMAN: And what about the issue of getting aid into Gaza, Raz Segal?

RAZ SEGAL: Yeah, the court also issued an order on the urgent need, and it stressed, of course, the really unprecedented scale of destruction and killing, the dire situation in Gaza, in terms of what we know, the levels of hunger and the spread of infectious disease. So it also ordered this, which is, again, very, very important. I mean, we all need to now wait and see what Israel’s response to this will be.

AMY GOODMAN: I want to also bring into this discussion Mahmood Mamdani, professor of government at Columbia University who specializes in the study of colonialism. One of his many books is Neither Settler Nor Native: The Making and Unmaking of Permanent Minorities. He was previously a professor and director of the Centre for African Studies at the University of Cape Town in South Africa and has been an academic leader in Uganda for years. Professor Mamdani, your response to this ruling? We discussed yesterday, before the ruling, what you expected. What did you see today?

MAHMOOD MAMDANI: Thank you for bringing me in.

Actually, everything that I expected happened. I wasn’t sure they would call for a ceasefire. But now listening to the reasoning of the court, it is clear to me that they couldn’t have called directly for a ceasefire without preempting their future deliberations. At the same time, if it walks like a duck, talks like a duck and sounds like a duck, then it’s a duck. Everything they ordered in terms of preventive measures leads to only one conclusion, which is ceasefire. How do you stop killing people? Ceasefire. How do you ensure that supplies for human life get in? Ceasefire. And so on and so forth.

I think the ball is now in the political domain. The law cannot displace politics. It can open avenues for politics. And that’s where we are now. This ruling is enormously significant in terms of broadening the avenues for politics, in terms of strengthening and accelerating the trend towards a global alliance against settler colonialism. And it has the U.S. on the defensive, Israel on the defensive.

We know that the last time the court ruled against Israel, which was on the question of the wall, Israel just ignored it. But this time, I think it may not be so easy to do. First of all, one has to ask oneself: Why did Israel come before the court? It could have just ignored it. According to its past conduct, that’s what it would have done. So the fact that it came before the court suggests that there are conflicting pressures before the Israeli government. Now what does it do? I think this is one goal in favor of the world, and we continue with the game.

AMY GOODMAN: And your insight into the Ugandan judge of the International Court of Justice? Sometimes the vote was 15 to 2, as Diana Buttu said, the Ugandan judge and the Israeli judge, and sometimes it was 16 to 1.

MAHMOOD MAMDANI: Well, Judge Sebutinde, she has a — she had a career where she had opposed the Museveni regime on several legal issues in court. Then she was appointed by the Museveni regime on the international stage, thus removing her from the local stage. I haven’t followed her career since then, but she was pretty consistent. There seemed to be no indication that she was making up her mind from issue to issue. I can’t say anything more than that right now.

AMY GOODMAN: Well, we’re going to go to break and then come back to our guests. We’re speaking with Columbia University professor Mahmood Mamdani here in New York; with Raz Segal, the Israeli historian and professor of Holocaust and genocide studies at Stockton University; and in Haifa, Diana Buttu, Palestinian human rights attorney. We’ll also hear more from the International Court of Justice, the U.N.’s highest court. Stay with us.

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