Tuesday, January 30, 2024

Alexander Gillespie: The UN’s top court didn’t call for a ceasefire in Gaza...... does NZ respond now?

The provisional measures issued by International Court of Justice (ICJ) in South Africa’s case against Israel under the Genocide Convention was, on balance, a victory for Israel.

While South Africa’s application was not thrown out, and the ICJ accepted it could rule on what is happening in Gaza, there was no provisional order for an immediate ceasefire.

This leaves New Zealand’s options less clear than in the case of Russia and Ukraine. In that instance, the ICJ urged that “the Russian Federation shall immediately suspend the military operations that it commenced” when it invaded.

Russia simply ignored the court, of course. But New Zealand will now have to take stock of what the ICJ has ordered in the case of Gaza.

This goes beyond the Genocide Convention. While the court found some of the assertions by South Africa were “plausible”, at this point it did not find that genocide was occurring. However, the ICJ was clearly disturbed by some of the rhetoric that has emerged from Israel during the conflict, which is also a humanitarian disaster.

It has ordered that Israel must carefully abide by the Genocide Convention, control its military, and “prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip”.

Significantly, Israel must report back to the court on what measures it has taken in a month’s time. So, even though the full case will now proceed in a process that could take years, the ICJ is watching matters closely. If Israel is not respecting the court’s provisional measures, the matter may quickly escalate.

Push for humanitarian aid

New Zealand will need to watch these next steps closely. The previous government focused on the “good faith” application of the Genocide Convention rules when it joined the proceedings in the Russia-Ukraine case.

As New Zealand highlighted then, the Genocide Convention was originally adopted with a dual purpose: to safeguard the very existence of human communities, and to confirm and endorse the most elementary principles of morality.

There is scope to expand New Zealand’s thinking on this further if it joins the next stage of the ICJ process over Gaza. This would need to focus not only on explicit acts of genocide, but also on the preconditions and context surrounding this most horrendous of all crimes, and the importance of a precautionary approach.

New Zealand also needs to focus on the ICJ’s ruling that “the State of Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip”.

This is a direct reflection of recent demands by the UN Security Council: the parties to the conflict must allow safe and unhindered delivery of humanitarian assistance, at scale, directly to the civilian population of Gaza.

The importance of supporting such humanitarian assistance has been a standard New Zealand demand since this latest conflict began. How the government reconciles support for this principle at the same time as pausing funding for the UN Relief and Works Agency for Palestine Refugees (UNRWA) presents an awkward conundrum, however.

Uphold international law

The ICJ went one step further than ruling on the Genocide Convention by emphasising that “all parties to the conflict in the Gaza Strip are bound by international humanitarian law”.

This includes the court’s “grave concern about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups”, and its call for their “immediate and unconditional release”.

This is where New Zealand can provide the most support. One of the shortcomings of South Africa’s case was that it focused on the most significant issue of all – genocide – but risked eclipsing dozens or hundreds of other possible violations of international humanitarian law.

Taking hostages, murder, sexual violence, restricting humanitarian assistance, attacking hospitals, schools and places of worship, and collective punishment of civilians are all crimes. As such they are regulated by the 1949 Geneva Convention on the Protection of Civilians in Times of War.

Furthermore, the ICJ has already ruled that Israel is bound by these treaty obligations within its occupied territories on the West Bank. The next step at the ICJ should be to focus on the applicability and accountability required by all sides in the conflict under the Geneva Conventions.

Just as individuals should be held accountable for war crimes and crimes against humanity at the International Criminal Court, states should be held accountable under international humanitarian law at the ICJ, as much as they are for allegations of genocide.

If New Zealand wants to help bring justice to this terrible conflict, these are the main areas where it should now plan to contribute.

Alexander Gillespie, Senior Lecturer, a Professor of Law, University of Waikato. This article is republished from The Conversation under a Creative Commons license. Read the original article


Tinman said...

Written, I thought, by a schoolchild until I read the author's details.

Now I know it was written by an unworldly schoolteacher.

There is no such thing as "international law', no such thing as international"crime, just convention followed by those who wish to.

In this case Israel, justifiably in my opinion, can simply offer the same reply Mr Oban recently gave the EU.

Only countries that don't benefit from trade with Israel will get upset to the point of attempting force to enforce their foolishness.

New Zealand, as a country, should stand up and applaud Israel for attempting to wipe the scum-of-the-Earth hamas shit and their supporters off the face of the earth.

Nothing else is acceptable.

Meanwhile schoolteachers should get back to teaching useful things instead of handwringing about the real world.

Barend Vlaardingerbroek said...

There's no such thing as international law? So says Tinman above. Gosh, what a waste of time that was of my part doing a PGDip mostly in international law.
Tinman correctly alludes to established custom as a component of international law, but he would be well advised to read an introductory text outlining instruments of international law such as treaties.

Anonymous said...

“Without a ceasefire, the order doesn’t actually work,” Naledi Pandor, South Africa’s minister of international relations, stated bluntly after the ruling.

Time is not on the side of the Palestinians. Thousands of Palestinians will die within a month. Palestinians in Gaza make up 80 percent of all the people facing famine or catastrophic hunger worldwide, according to the United Nations. The entire population of Gaza by early February is projected to lack sufficient food, with half a million people suffering from starvation, according to the Integrated Food Security Phase Classification, drawing on data from U.N. agencies and NGOs. The famine is engineered by Israel.

At best, the court — while it will not rule for a few years on whether Israel is committing genocide — has given legal license to use the word “genocide” to describe what Israel is doing in Gaza. This is very significant, but it is not enough, given the humanitarian catastrophe in Gaza.

Anonymous said...

For those who read the article, as offered by Alexander Gillespie, should do well to consider, that once "the news broke on what South Africa had done with the ICJ", that around the World there was instance condemnation of South Africa, on the hypocrisy of their actions, when it is well known that since the Africa National council/ ANC assumed Political control of that Country, that internecine Tribal animosities arose, that saw the near decimation of African People and also the murder of white people on farms - which the International MSM never even reported on, nor did anyone place before ICJ and/or any International Court - "a case to prosecute and/or defend" of actions perpetrated by both the ANC and their supporters.

The same can be said for Zimbabwe once Robert Mugabe got political control of that Country - ask any white person who left, in a hurry.

Oh and both cases - the UN "was strangely silent"!

Anonymous said...

BV: yes, precisely; and what is more, parties to the Genocide Convention (treaty) include Israel, Palestine, the United States and New Zealand.

There is a non-technical summary of the Convention on Wikipedia and from there also a summary of, and a selection from commentators on, the merits and otherwise of the case against Israel brought by South Africa in the ICJ. Good background for getting a bit of a handle on the legal frameworks and what NZ also needs to bear in mind.

Of interest to me, as it hadn't occurred to me before reading these entries, is the argument that withdrawing funding from UNRWA without a compelling cause could potentially also be a breach of the Genocide Convention.

Tinman said...

Mr Vlaardingerbroek you are correct. A complete waste of time (and, I hope, your money).

Until there is an accepted international police force any international agreements (treaties or what have you) are enforceable only by breach of the same "laws". i.e. laws they ain't!

The current situation where scum hide behind "innocents", most of whom happily offer succor until the Israel Military comes calling, and allow those "innocents" to become casualties of their (the scum's) cowardice demonstrates this perfectly.