https://www.icj.org/gaza-one-month-on-israel-fails-to-comply-with-the-order-of-the-international-court-of-justice/Gaza: One month on, Israel fails to comply with the Order of the International Court of Justice
26/02/2024
The International Commission of Jurists (ICJ) condemns the continued failure by Israel and other States to comply with, and give full effect to, the provisional measures (PMs) indicated by the International Court of Justice (the Court) in its Order of 26 January 2024 in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).
In its Order, the Court required Israel to “take all measures within its power to prevent the commission of all acts within the scope of Article II” of the Genocide Convention (PM 1 and 2) against Palestinians in Gaza, specifically killing them; causing them serious bodily or mental harm; deliberately inflicting on them life conditions calculated to bring about their total or partial physical destruction; and imposing on them measures intended to prevent births. The Court also ordered Israel to “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” (PM 4).
However, the ICJ is deeply concerned that, since the issuance of the Order, the very nature and conduct of Israel’s military operation in Gaza run counter to, and defeat the very purpose of these provisional measures. The organization considers that the following acts by Israel – each on its own and, a fortiori, taken together – breach the Court’s provisional measures:
- Israel’s continuous bombardment of the Gaza Strip, including more recently in Rafah, in violation of international humanitarian law;
- its extensive destruction of hospitals and housing and resultant denial of adequate medical care and housing;
- its deliberate blocking of humanitarian aid and concomitant failure to provide or ensure essential food, water, medicine, fuel, shelter and other humanitarian assistance for the besieged and blockaded Palestinian people;
- its mass displacement of civilians; and
- the ever-mounting death toll of its military operation – standing at over 29,000 as of 21 February 2024, with more than 3,000 killed since the Order’s issuance.
Moreover, in light of the already catastrophic humanitarian situation in Rafah, and given its population density with over 1 million people currently packed there, the ICJ is concerned that Israel’s threatened ground incursion in Rafah, should it materialize, will inevitably be dire for the civilian population, and will lead to further breaches of the Court’s provisional measures.
The Order also requires Israel to prevent and punish direct and public incitement to commit genocide against people in Gaza (PM 3). While on 9 January 2024, before the Court issued its Order, Israel’s Attorney General, Gali Baharav-Miara, announced she would examine the legal ramifications of a series of statements made by senior Israeli officials calling for the targeting of uninvolved Gaza civilians, the ICJ is nonetheless very concerned that Israel has failed so far to initiate full criminal investigations into allegations of incitement to commit genocide.
In addition, while the Court has ordered Israel to enable the provision of urgently needed basic services and humanitarian assistance (PM 4), Israel has once again breached the Court’s order by deliberately undermining UNRWA, blocking humanitarian aid and attacking convoys. According to the UN and an analysis by CNN, Israeli forces fired on a convoy carrying vital food supplies in central Gaza on 5 February 2024, before blocking the trucks from progressing to the north, where Palestinians are on the verge of famine. The last time UNRWA was allowed to deliver food north of Wadi Gaza was on 23 January 2024, and since the beginning of 2024, half of UNRWA’s aid mission requests to the north were denied. On 15 February 2024, at the Port of Ashdod, Israel blocked a shipment of UN food aid intended to feed over a million Gazans in Rafah for a month. Oxfam and Amnesty International have also claimed that aid is being deliberately obstructed by Israel. On 20 February 2024, the World Food Program said it was forced to pause deliveries of food aid to isolated northern Gaza because of the “complete chaos and violence due to the collapse of civil order”. Eighteen countries, including the US, the UK and Germany, have suspended their funding to UNRWA due to allegations that 12 of its staff, who have been dismissed, were involved in the criminal attacks of 7 October 2023. An independent investigation into Israel’s allegations against the UN agency is pending.
The ICJ recalls that the Court’s indication of provisional measures has legal consequences not only for Israel and South Africa, but also for third States.
All State Parties to the Genocide Convention have an obligation to prevent and punish genocide (article I). As the ICJ has previously pointed out (see here), States’ obligation to prevent genocide and the corresponding duty to act arises “at the instant that the State learns of, or should have normally learned of, the existence of a serious risk that genocide will be committed”. Following the Court’s order of 26 January 2024, it is now beyond doubt that all States Parties to the Convention are on notice that there is a risk of genocide occurring in Gaza. Thus, third States are obliged to take action to comply with their obligation to prevent genocide.
The ICJ is concerned that instead of using their leverage to influence Israel to comply with the Order, many third States are effectively aiding or assisting Israel’s breaches of the provisional measures ordered by the Court, including by continuing to provide financial and military assistance to Israel. Third States’ actions and omissions in this context could be evidence of a failure to prevent and punish genocide, but could also give rise to complicity in genocide.
In addition, the US’s continued vetoing of a UN Security Council resolution mandating an immediate ceasefire is extremely concerning. In light of this, the ICJ urges States to undertake all efforts to ensure an immediate ceasefire. States with close diplomatic and economic relations with Israel and thus a greater capacity for influence, such as the United States, should use their leverage and employ all lawful means at their disposal to influence Israel to comply with the Order and refrain from acts that may breach the Genocide Convention.
Moreover, the ICJ considers that the suspension of funding from UNRWA has gravely undermined access to humanitarian aid and, therefore, the implementation of the Court’s Order. As a result, the organization calls on the States concerned to reverse their withdrawal of funding to allow the UN agency to continue its crucial work.
The ICJ reiterates its call on Israel to fully implement the provisional measures ordered by the Court on 26 January 2024.
The ICJ also reiterates its call for the immediate and unconditional release of all hostages abducted during the criminal attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and compliance by all parties with international humanitarian law, as called upon by the Court in its Order.
