On December 29, 2023 in the Hague, South Africa, concerned about the terrible conditions inflicted on the citizens of Gaza, filed “an application instituting proceedings against Israel before the International Court of Justice (ICJ), the principal judicial organ of the United Nations, concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) in relation to Palestinians in the Gaza Strip.”
Essentially, South Africa alleged that Israel was committing genocidal “acts and omissions” with the intent of destroying Palestinians in Gaza and violating its obligations under the Geneva Conventions. The application requested that the Court issue provisional measures as a priority.
The ICJ issued the requested provisional measures on January 26, 2024.
The multi-national seventeen-member panel of judges issued nine directives, including ordering Israel to immediately implement a ceasefire in its war on Gaza. Each directive was approved by a very wide margin, with only Uganda voting against every measure and Israel against all except for points three and four below.
In the six-point summary of its Order, which has binding effect, the Court indicated the following provisional measures:
1. (By fifteen votes to two)
The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:
- killing members of the group;
- causing serious bodily or mental harm to members of the group;
- deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
- imposing measures intended to prevent births within the group.
2. (By fifteen votes to two)
The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above.
3. (By sixteen votes to one)
The State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip.
4. (By sixteen votes to one)
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.
5. (By fifteen votes to two)
The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip.
6. (By fifteen votes to two)
The State of Israel shall submit a report to the Court on all measures taken to give effect to this Order within one month as from the date of this Order.
What I found so remarkable was the lack of support for Israel by almost every member of the seventeen jurists who sat on the panel.
Reactions to the ruling were swift and unfortunately predictable. South Africa hailed it as a decisive victory for international law, while Israel rejected it, repeating that its incursion resulted from its right to defend itself after the October 7th Hamas attack.
It has become very clear that Israel has no intention of abiding by the Court’s directives. Despite giving lip service to preventing genocide against Palestinians, Israel continues to resist implementing even a temporary ceasefire and is now threatening to attack Rafah in southern Gaza – the last refuge for over one million Palestinian civilians.
The situation in Gaza is grim. As of February 10th, food, medical supplies, and potable water are tragically scarce. Bombings and sniper attacks persist. An apparent 1,755 Palestinians in Gaza have been killed since the IJC order was issued.
On February 13th, South Africa announced that it had made an urgent request to the IJC to intervene in Rafah. The United Nations is so far refusing to participate in a forced evacuation of the area, while a number of countries, including the U.S., continue to press for a ceasefire.
Israel has now made it clear that it is planning to expand its ground assault in Rafah. Although the Israeli army has been ordered to develop plans to evacuate civilians, the reality is that there is nowhere left for them to go.
The question has become how the international community will respond if Israel continues to so clearly defy international law and human decency.
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