DR. Nabil Ahmed Helmy writes
On the occasion of Israel’s violation of the Convention on the Prevention of the Crime of Genocide in 1948, and given the importance of the issue, the court decided to hold an urgent hearing to examine South Africa’s request and issue an order to take temporary measures to stop any inhumane operations until the merits of the issue are decided.
The International Court of Justice (ICJ) has not yet studied the objective aspects of the problem contained in South Africa’s request because it takes a long time to reach the truth and listen to the parties concerned in this request.
But it examined it in accordance with Article 41 in its first paragraph of the Court’s statute, which stipulates the following:
“The court shall have the power to indicate, if it considers that the circumstances so require, any provisional measures that should be taken to preserve the rights of either party.”
This means that the court, during this stage, is mandated to examine the extent to which it is able to take temporary measures to protect the parties if there is a danger to them, and then notify the United Nations to take the necessary action through its various agencies.
The second paragraph of Article 41 of the Court’s statute stipulates the following:
“Pending a final decision, the parties and the Security Council must be immediately informed of the proposed measures.”
Hence, it is clear that the court is still subject to the first paragraph of Article 41, which concerns temporary measures, and since the request submitted by South Africa includes two main aspects, the first is the request to take temporary measures and the second is to confirm the accusation that Israel is committing war crimes, especially the crime of genocide against civilians and innocent women. And Palestinian children and residents under occupation in Gaza. After the end of the first paragraph, the court will move to the second paragraph of Article 41, which is concerned with making the final, objective decision, which is examining the accusations against Israel regarding the international crimes it committed in violation of international law, especially international humanitarian law. The court may decide, if necessary, to form a “criminal chamber” to look into the criminal aspects of the issues. Objectivity. In most cases, when the final decision is presented to the United Nations, especially the Security Council, it will be difficult to use the right of veto.
On the other hand, commenting on the decisions already issued by the court and clarifying some international legal aspects, the International Court of Justice does not have the jurisdiction to take any decision on a ceasefire because this is only the jurisdiction of the Security Council and the United Nations General Assembly. The court’s decision that has already been taken is the highest ceiling that the court can take within the framework of its jurisdiction. Therefore, the temporary decisions issued by the court in application of Article 41 in its first paragraph (temporary decisions) must be welcomed.
In light of these decisions, it is now possible for many countries of the international community to submit a draft resolution to the Security Council demanding a ceasefire in Gaza and to begin sending trucks to Gaza immediately with sufficient aid to embarrass Israel if it dares to hit these trucks and in the event that the required decision is not taken by the Security Council. To submit the same resolution to the United Nations General Assembly and to seek to implement the principle of “Uniting for Peace,” which deals with examining the issue with the powers of the “Security Council” when it is proven that the Council has failed to achieve international peace and security. On the other hand, it is expected that the international community will avoid dealing with Israel based on the decisions of the International Court of Justice. It may come to the point of severing multiple relations or reducing diplomatic representation with Israel.
Last but not least, we must point out some important legal aspects contained in the decision of the International Court of Justice in support of the requests submitted by South Africa in this dispute.
Although the court’s decision did not request a halt to the aggression, it has many aspects that could constitute victories for South Africa, the Arabs, and the Palestinians, including, for example,
1- The court believes that there is a dispute that deserves consideration.
2- The court believes that South Africa’s request to investigate the occurrence of acts committed by Israel that are criminal under the Genocide Convention came from a party that has the right to litigate.
3- The court recorded some forms of these criminal acts, including preventing water and electricity,,,
4- The court recorded images of the call for genocide in the statements of Israeli officials.
5- The court asked Israel to stop threatening civilians and exposing them to danger.
6- The court asked Israel to prevent the crime of genocide and to punish those who commit it.
7- The court demanded that Israel submit a report on the response to the requests of the Court of Justice within one month from its date.
Accordingly, the court’s decision is a legal indicator of condemning Israel and embarrassing most of the countries that support it, especially the United States of America, some European countries and others. It also represents initial evidence on the way to condemning Israel, especially since South Africa has a clear path ahead of it for more evidence of its inhumane crimes.
Some may expect that Israel will not implement most of what was stated in the court’s decision, and this supports the court’s course of objectively condemning Israel and confirming its commission of the crime of crimes in international law, which is the crime of human genocide and the sub-crimes it includes, the most important of which are the crime of forced displacement, war crimes, crimes against humanity, and others. One of the crimes mentioned in the international humanitarian law conventions, especially what was mentioned in the Fourth Geneva Convention regarding the Protection of Civilians under Occupation.
