By Heidi Matthews, Faisal A. Bhabha & Mohammad Fadel
The International Court of Justice (ICJ) has issued a ground-breaking decision in South Africa’s genocide case against Israel, ordering Israel to comply with six provisional measures to safeguard the right of Palestinians in Gaza to be protected from genocidal violence.
The court’s order is binding on Israel and formalizes the international legal obligations of other countries that are parties to the UN Genocide Convention.
Properly understood, the order should dramatically alter both the foreign and domestic policy decisions of Israel’s allies, including Canada and the United States.
Israel and its allies cannot dismiss or minimize the importance of this decision. In granting interim relief, the court concluded that South Africa’s allegations of genocide are, at a minimum, legally and factually plausible.
Other countries must act
Crucially, the court expressly concluded, by an overwhelming majority, that Palestinians in Gaza face a “real and imminent risk” of genocide. This puts other countries on notice that they have an international legal duty to take steps to prevent genocide in Gaza in accordance with the court’s order.
As the court stated in a 2007 ruling when Bosnia accused Serbia of genocide, countries that are parties to the Genocide Convention have an obligation to prevent and a corresponding duty to act “the instant that the state learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.”
Both Canada and the U.S. have construed the court’s decision narrowly, suggesting it merely reiterates Israel’s right of self-defence and obligation to comply with international humanitarian law.
This is a legally indefensible reading of the court’s ruling.
U.S. President Joe Biden’s administration says it believes the court’s decision is consistent with existing American policy on Israel and that it continues to view South Africa’s case as “meritless.”
Canadian Foreign Affairs Minister Mélanie Joly reiterated that Canada’s “support for the ICJ does not mean that we accept the premise of the case.”
Statements of political support by the U.S. and Canada that Israel is abiding by the laws of war — contrary to the facts — cannot shield Israel or its allies from their legal obligations under the Genocide Convention. Those obligations — including to prevent genocide — are created via treaty and are interpreted by courts, the highest of which is the International Court of Justice.
The obligation to prevent genocide, combined with the court’s finding of a serious risk of genocide, means that all parties to the Genocide Convention must refrain from taking steps that would actively frustrate the effective implementation of the court’s order.
Canada in violation of its obligations
As South Africa stated, “the ICJ has determined that Israel’s actions in Gaza are plausibly genocidal and has indicated provisional measures on that basis.”
Among other measures, the court directed Israel to “take all measures within its power to prevent the commission” of acts of genocide, to prevent and punish incitement to genocide and 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.”
The court emphasized evidence from the World Health Organization indicating that “93 per cent of the population in Gaza is facing crisis levels of hunger” and “that maternal and newborn death rates are expected to increase due to the lack of access to medical care.”
But just hours after the court’s ruling, the U.S. announced it was suspending funding for the United Nations Relief and Works Agency for Palestine Refugees in the Near East.
The funding cuts came after Israeli allegations that 12 UNRWA employees had participated in the Oct. 7, 2023 attack by Hamas against Israel. UNRWA has terminated the accused employees and launched an investigation.
The U.S. is the biggest financial contributor to UNRWA. Several other key donor countries, including Canada, quickly followed suit.
UNRWA is the largest aid provider in Gaza and a trusted lifeline to civilians in the territory. Even if the allegations are true, defunding the entire organization openly defies the court’s order and amounts to collective punishment of the civilian population in Gaza.
Disturbingly, moves to defund UNRWA appear to help implement Israeli government plans to undermine the organization’s capacity to deliver aid to Palestinians in Gaza. Earlier this month, policy experts told the Knesset that UNRWA “must be dismantled and thrown in the dustbin of history” and that “no country that is a friend of Israel should provide them any money.”
The ICJ found that “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further,” plausibly inflicting conditions of life calculated to bring about the physical destruction of Palestinians in Gaza.
Accordingly, any country’s action knowingly contributing to further deterioration would violate the obligation to prevent genocide and could amount to complicity in genocide.
Canada must halt arms sales to Israel
The court’s provisional measures also impact Canada’s compliance with its own laws on military exports.
In 2022, Canada sent more than $21 million worth of military exports to Israel. The Export and Import Permits Act forbids arms permits to be issued if there’s a “substantial risk” that the goods could be used to commit or facilitate serious violations of international humanitarian or human rights law.
Because the ICJ found a serious risk of genocide in Gaza, continuing to export arms to Israel would be illegal. It would also be flagrantly inconsistent with Canada’s obligation to prevent genocide, and could expose Canada and Canadian officials to liability for participation in genocide.
We must reject the politics of deliberate indifference to atrocity currently on display in the Canadian government’s reactions to the ICJ ruling.
The above was written by Heidi Matthews (Assistant Professor of Law, Osgoode Hall Law School, York University, Canada), Faisal A. Bhabha (Associate Professor of Law, York University, Canada) & Mohammad Fadel (Professor, Faculty of Law, University of Toronto) and first published in The Conversation