Yesterday, when the world commemorates the International Holocaust Remembrance Day (the events of which were brought forward by a day due to Shabbat), the decision of the International Court of Justice was revealed regarding the temporary relief requested in the proceedings of South Africa against Israel regarding the crime of genocide that Israel is committing (according to South Africa) in Gaza .
Netanyahu: “The allegation of genocide is outrageous”, Ben Gabir: “Hag Shamag”
A broad and difficult meaning: this is how the decision in The Hague is expected to affect Israel
It is important to repeat and mention that this is a preliminary decision regarding temporary remedies only. The International Court of Justice did not make a decision regarding the existence of genocide, but only regarding the theoretical possibility that genocide is taking place based on the data presented to it by South Africa and Israel. In the bottom line, this decision can be regarded as the best decision that Israel could have achieved under the existing circumstances, but it can be regarded to the same extent as the least bad decision that the Court could have made.
The decision is good because the International Court of Justice rejected the most extreme and polar remedies that South Africa requested – a remedy of a cessation of hostilities and a remedy of the immediate return of the Gazan population to the north of the Gaza Strip. These are remedies that would have substantially harmed Israel’s and the IDF’s ability to fight Hamas. Considering the low bar that is required to accept provisionals in such a procedure, this is a dizzying success for the Israeli defense team led by Prof. Malcolm ShawDr Cattle dew – the legal advisor of the Ministry of Foreign Affairs, and Dr Gil-ad Noam – The Deputy Legal Adviser to the Government.
If anyone had any doubt about the importance of Israeli participation in the process – this doubt should be removed. The Court did accept most of the remedies requested by South Africa, but most of them are remedies that Israel has no problem implementing. Moreover, Israel will most likely claim that these are remedies that are generally applied on the ground – since the IDF takes measures to prevent and neutralize any fear of murder People, Israel brings in humanitarian aid, and the military activity is mostly done legally, in accordance with international humanitarian law, and without any intention to commit genocide. Without the appearance of the Israeli team, the court would have been left with only the picture presented to it by the representatives of South Africa, and reasonable to assume that the more severe remedies would have been accepted.
The decision is the least bad, because everyone who heard the president of the court read the decision could get the clear impression that the court adopted the South African narrative. The reference was mainly to the damages caused by Israel to the Gaza population, and to the problematic statements of more or less senior politicians. Beyond a few words regarding the events of the seventh of October, there was no real reference to the role of Hamas in relation to the damage caused in Gaza and the ongoing threat that the terrorist organization poses to Israel.
The Hague Tribunal (Photo: REUTERS/Thilo Schmuelgen)
As I have already mentioned before, it is impossible to reduce the damage caused to the country by the scandalous statements of politicians, commentators, public figures and soldiers. The court made it clear in no uncertain terms that these statements had significant weight in the decision to grant temporary relief, because these statements help establish the possibility of genocide based on the threshold of “intention”.
Judge Barak, who was in the minority regarding most of the remedies, also joined the majority opinion regarding the remedy that requires Israel to prevent and deal with statements that may constitute incitement to genocide. I very much hope that the Israeli politicians will understand the essential consequences of these statements and internalize it without the need for the intervention of the legal adviser to the government, and without the need to hide behind their parliamentary immunity.
One of the most interesting and challenging remedies from an applied point of view is the remedy that requires Israel to introduce sufficient humanitarian aid to the Gaza Strip. Israel is already providing humanitarian aid, but according to all the indicators published by UN experts and humanitarian organizations, the amount of aid is not sufficient to deal with the developing humanitarian disaster in the Gaza Strip.
Since the High Court’s decision yesterday relied heavily on the statements and reports of UN officials, it is important that Israel face this reality, and not be satisfied with the argument that the aid that is now coming in is sufficient. Israel should make efforts to increase the aid in an effective manner in order to To reduce the damage caused to the non-involved civilian population in the Strip, and to deal with protests against the entry of such aid into Gaza.
At the same time, it is not clear who will supervise the aid and help make sure that the quantities are sufficient and that it reaches its destination and is not hijacked by Hamas for the use of its fighters. I believe and expect that Israel will make sure to cooperate with these UN bodies in an optimal way to ensure that humanitarian aid not only enters, but is also distributed effectively, but it should also be made clear that the main responsibility for effective distribution rests first of all with the actual ruling authority in Gaza – Hamas.
In conclusion, it is important to note that beyond the rejection of particularly problematic remedies (such as a cessation of hostilities), one of the most important achievements in the decision is the unequivocal statement by the Court regarding the necessity to release the abductees immediately and without any preconditions. The fact that the judges chose to close their decision with this creates symmetry with opening The things with the description of the events of the 7th of October, and mentions the urgency of returning all the abductees as the most important goal.