Financial Mail

A RULING THAT ECHOED AROUND THE WORLD

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One of the particular­ities of contempora­ry conflicts is the ability of civilians to post their destructio­n in real time on social media. It’s a horror that makes crisp an impotence in internatio­nal law: it doesn’t respond in real time; on the whole, it offers retrospect­ive justice for atrocity crimes. Which is why the Internatio­nal Court of Justice’s (ICJ’s) order last week for interim and urgent measures to protect the population of Gaza from acts of genocide is so significan­t.

The order flows from South Africa’s applicatio­n to the court to have Israel’s actions in Gaza declared genocidal and, more immediatel­y, to put in place provisiona­l measures, primarily to protect noncombata­nts, pending the outcome of the central genocide case.

That the court put in place six of these measures is not to say that Israel has perpetrate­d genocide. Rather, that it is plausible that such acts have been carried out, and that there’s plausible evidence of intent

a prerequisi­te under the genocide convention to do so. On this, the court pointed not only to the mass devastatio­n caused to Palestinia­ns, but also to the unchecked inflammato­ry statements of politician­s, citing, for example, defence minister Yoav Gallant’s reference to “human animals” and the release of “all restraints”.

So it ordered that Israel take all steps in its power to prevent genocide and ensure its military doesn’t commit acts of genocide; that it act against incitement to genocide, enable urgent humanitari­an aid into Gaza, prevent the destructio­n and preserve evidence of potential genocide, and report back to the court in one month.

It’s a big win for South Africa, with the court giving effect to most of the provisions it motivated for. But it didn’t grant South Africa’s primary request for a ceasefire.

That’s surely not so surprising a move. Even in an asymmetric conflict, it’s unlikely just one party would be forced to halt military activity, and Hamas in any event isn’t bound by any order of the court.

Even so, the order may alter the trajectory of the war. For a start, it’s impossible for the interim measures to be met without some form of de-escalation.

Furthermor­e, the mere whiff of genocide should be enough for any state to dial back its military strategy, given the opprobrium attached to the tag. And for any state backing a plausibly genocidal power to rethink its support lest it later be found complicit in genocide and itself face sanction by the internatio­nal community.

The immediate question, of course, is whether all this is likely.

Israel has already spun the order as something of a win a recognitio­n of its right to defend itself. And it will in all likelihood argue that its actions already adhere to the court order, so no harm, no foul. But national security minister Itamar BenGvir’s desultory “Hague schmague” tweet does little to inspire confidence in any change in political temperatur­e at least. So much for reining in cabinet ministers.

Still, under pressure from the broader internatio­nal community, there is a distinct possibilit­y that Israel changes tack and at the least opens the channels for increased humanitari­an aid. Only, it is unlikely to admit that is in any way tied to a court order, an analyst told the FM before the ruling; to do so would be to admit it has done something wrong. Prime Minister Benjamin Netanyahu’s insistence that the genocide charge is “outrageous” would seem to underscore the point.

More likely is that his government will attribute such a move to, say, the conflict entering a less intense stage, as it did before the court heard the case. What will be most telling about recognitio­n of the ICJ’s authority is if it’ submits a report to the court in a month s time, and how the content of that report is framed.

In any event, de-escalation and increased aid flows are only a good thing.

Of course, there are the broader issues at play: will countries supporting Israel militarily, financiall­y and diplomatic­ally bring pressure to bear or rein in their support? The US, with its influentia­l Jewish lobby, is particular­ly powerful on this count, supplying $3.8bn a year to Israel in military aid. But that it and the UK still insist that the claim of genocide is “unfounded” and “provocativ­e” suggests they may do little more than insist on increased humanitari­an aid, as they previously have.

While Algeria has already requested a UN Security Council meeting, any resolution around enforcemen­t is likely to come up against a US veto at the least.

That doesn’t mean all is lost. The finding on provisiona­l measures is a legal watershed in demanding accountabi­lity in this terrible, intractabl­e conflict. The internatio­nal community has until now handled Israel with kid gloves due to its history, rooted in the horror of the Holocaust. But an order of this magnitude may herald a sea change, and offer the community of states an opportunit­y to bolster the rules-based internatio­nal order.

It could be a diplomatic watershed too, in opening space for the kind of longterm negotiatio­ns that are impossible in the mist of war.

But of perhaps more immediate import is that it could prevent an atrocity crime “the crime of all crimes from playing out in real time, in full view of the world. For that, South Africa deserves full credit.

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