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Will Israel abide by the International Court of Justice decision?

Major General Dr. Khaled El-Khamry

Within its authority to order the adoption of temporary or urgent procedures or measures that it deems necessary and cannot tolerate postponement until the completion of the substantive ruling in the case at hand, which may take many years to issue, in accordance with Article 41 of the Court’s statute, which gives the Court the power to indicate “if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party,” with immediate notification of the proposed measures to the parties and the Security Council pending a final ruling. On January 26, the International Court of Justice issued an emergency preliminary ruling against Israel in the lawsuit filed by South Africa against it, accusing it of violating the 1946 United Nations Convention on the Prevention and Punishment of the Crime of Genocide on the occasion of its brutal aggression against Gaza.

The aforementioned ruling includes taking all measures to prevent any acts that could be considered genocide (according to the definition of the crime of genocide as stated in the Convention), ensuring that the Israeli army does not carry out any acts of genocide, and preventing and punishing any public statements that could incite the commission of genocide in Gaza, while considering all measures to ensure that humanitarian aid reaches the residents of the Strip, not discarding any evidence that could be used in the case against Israel, and submitting a report to the court within a month on the extent of its implementation of these measures and procedures.

Although the Court did not issue an explicit and direct ceasefire order, the measures and procedures it ordered implicitly assumed a ceasefire, otherwise, they would lose their meaning.

The truth is that the legal value of this court decision stems from the fact that it is a final judicial decision that cannot be appealed, just like the judicial rulings issued by the International Court of Justice in accordance with Article 60 of its statute. In addition to being binding, considering that the court derives its jurisdiction in this regard from the text of the first paragraph of Article 36 of its statute, which stipulates that the court’s jurisdiction includes all issues presented to it by litigants and also includes all issues specifically stipulated in the Charter of the United Nations or in treaties and agreements. The court’s jurisdiction in the case under consideration was determined by the text of Article 9 of the Convention on the Prevention and Punishment of the Crime of Genocide, as well as Israel’s declaration, upon its accession to the convention, of its acceptance of the court’s jurisdiction over it.

Pursuant to Article 41 of the Statute of the aforementioned Court, the Secretary-General of the United Nations must inform the Security Council of the interim measures that it has ordered.

The second paragraph of Article 94 of the Charter of the United Nations authorizes the Security Council, if one of the litigants in a case abstains from doing what is imposed on him by a ruling issued by the court, if it deems it necessary to do so, to submit its recommendations or issue a decision on the measures that must be taken to implement this ruling. This may be implied by the fact that the recommendations or decisions of the Security Council in this regard are limited only to the court’s rulings without its decisions regarding temporary measures, and that excluding these measures from the Council’s authority to recommend or make decisions makes these measures lose all value and meaning if the party addressed does not implement them on its own or was forced to implement them by a Security Council decision.

Therefore, the Secretary-General’s notification of the measures issued by the Court to the Security Council aims to push Israel to implement them on its own or to force it to do so through a Council decision, although it is expected that the United States would, by using its veto, prevent it from issuing a decision against Israel in this regard, as its State Department Spokesperson declared that his country does not see acts of genocide occurring in Gaza.

Here, the alternative may be to resort to the United Nations General Assembly, based on Union for Peace Resolution No. 377 of 1950, taking into account that what the General Assembly may issue here by a two-thirds majority will be a non-binding recommendation, even if it constitutes great moral and ethical pressure on Israel and the countries supporting it.

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