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Palestinian Organisations Welcome Landmark ICJ Provisional Measures Order Finding That Israel’s Actions in Gaza Are Plausibly Genocidal
26، Jan 2024

Al-Haq, Al Mezan, and the Palestinian Centre for Human Rights (PCHR) welcome the provisional measures order issued today by the International Court of Justice (ICJ) in the case of South Africa v. Israel. In a historic landmark ruling, the ICJ determined the plausibility that Israel is carrying out genocide against the Palestinian people in Gaza. By ordering Israel to take all measures within its power to halt with immediate effect the commission of genocidal acts, the ICJ recognised the need for immediate action to protect the Palestinian people in Gaza, and immediately stop the ongoing killing of Palestinians in Gaza as members of a group. Not only is Israel ordered to stop with immediate effect all genocidal acts in Gaza, it is also ordered to report back to the Court within a month on its implementation of the provisional measures. Drawing on the nature of Israel’s military action, and “dehumanising” statements by Israeli government officials, the Court found that Israel’s actions in Gaza are plausibly genocidal.

The sweeping provisional measures order has a legally binding effect and is essentially the first time that Israel has been held to account for plausible genocide in a contentious case with legally binding obligations. The provisional measures order carries an implicit call to ceasefire, as clearly it cannot be carried out without a full cessation of hostilities. In particular, in light of the many UN statements that effective humanitarian aid is only possible with a complete cessation of military action, the ICJ’s call in the same wording is in practice a call for this cessation. Similarly, given the nature of its military action, for Israel to comply with the orders to take all measures within its power to prevent the commission of all acts within the scope of the Genocide Convention, and that it must ensure its military does not commit any genocidal acts, requires this cessation. The Court’s order can only be effected with a ceasefire.

The Court found the conditions required by its Statute for it to indicate provisional measures were met. Accordingly, the Court ordered that Israel must, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in relation to the Palestinians in Gaza: (i) take all measures within its power to prevent the commission of all acts within the scope of Article II of the Genocide Convention; (ii) ensure, with immediate effect, that its military forces do not commit any of the aforementioned acts; (iii) prevent and punish the direct and public incitement to commit genocide; (iv) 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 Gaza; (v) 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 III of the Genocide Convention; and (vi) submit a report to the Court on all measures taken to give effective to this order within one month from 26 January 2024.

The prompt issuance of provisional measures by the ICJ, occurring within a month of South Africa filing its application and only two weeks after the oral hearings, indicates a keen recognition of the urgency surrounding the continuous mass atrocities faced by Palestinians in Gaza. The Court emphasised how since 7 October 2023, Israel’s genocidal military campaign has killed at least 25,700 Palestinians and wounded 63,740 others. At least 1.7 million Palestinians are internally displaced, seeking refuge in overcrowded shelters. Furthermore, policies calculated and deliberately imposed by Israel left 2.3 million Palestinians without access to life-sustaining supplies, grappling with a collapsed healthcare and food system, and vulnerable to the spread of diseases, life-threatening injuries, illnesses, and famine.

In line with Article 41 of the ICJ Statute and established international legal practice, our organisations remind the international community that the implementation of provisional measures is mandatory under international law. Accordingly, it is imperative for the States Parties to the Genocide Convention and the international community as a whole to ensure Israel’s immediate and total adherence to these legally binding provisional measures. Third States, especially permanent members of the United Nations (UN) Security Council, should uphold international law, adhere to the Court’s ruling, reconfirm their commitment to justice, and avoid politicising the international legal order.

“This ruling holds immense significance, serving as a crucial milestone in the collective effort to hold Israel accountable for the egregious crimes committed against the Palestinian people. It marks a pivotal step towards curbing the perpetual impunity granted to Israel by its allies. The responsibility to end the ongoing genocide in Gaza now lies with the international community, which must fulfill its legal obligations and take decisive measures to safeguard Palestinians from the genocidal acts perpetrated by Israel. Ending the ongoing genocidal Israeli military campaign in Gaza should be the primary pursuit”, said Issam Younis, Al Mezan’s General Director.

In light of the ICJ deeming it plausible that Israel’s actions in Gaza could amount to genocide, we emphasise the legal obligations of all States Parties to the Genocide Convention, as well as under customary international law. This includes their responsibility to prevent and end genocide and ensure they are not complicit in genocide, including by pressuring Israel to cease its military attacks in and against Gaza, imposing a two-way arms embargo and sanctions on Israel, ceasing diplomatic protection, and prosecuting or extraditing Israeli officials. The ICJ’s finding that Israel is plausibly committing genocide places an onus on all States to immediately take action to prevent this genocide. As part of their legal obligation to prevent and end genocide, Members of the Security Council also have an obligation to take binding measures under Chapter VII of the UN Charter to respect and enforce the ICJ’s order. Failure to give effect to the order pronounced by the highest judicial body in the international legal system, not only allows genocide and other international crimes to continue but also undermines the very fabric of international law.

“This is historic. This is the first time we see Israel held accountable for its crimes before an international court. We hoped that the International Court of Justice would call on Israel to suspend its war of genocide against the Palestinians and the Court delivered the justice we sought. We are satisfied that these important provisional measures ordered by the Court cannot be practically implemented without a ceasefire. The Court has been clear. Israel must end, with immediate effect, its genocidal war carried out to destroy the Palestinian people in Gaza”, said Raji Sourani, the General Director of PCHR.

Through this ruling, the Court conveys a clear message: no State is above the law or immune from legal scrutiny. Confronted with Israel’s systematic efforts to obstruct justice, its veneer of impunity is now laid bare. In this spirit, our organisations further urge the Office of the Prosecutor of the International Criminal Court to acknowledge the ICJ ruling and accelerate investigations into high-level Israeli government and military leaders who have committed, attempted to commit, ordered the commission, or aided or abetted the commission or attempted commission, or directly and publicly incited others to commit genocide against Palestinians in Gaza.

“This ruling is a de facto ceasefire, ordering Israel to end acts of genocide, including killing, with immediate effect. It rekindles hope in the international rules-based order, deliberately distorted by Israel and its allies over the past 112 days and throughout 75 years of the ongoing Nakba. It serves as a lifeline defiantly seized from a relentless oppressor, sounding an urgent wake-up call for the international community: genocide cannot be tolerated. The road to justice is a long one, but we shall not despair that one day the Palestinian people will realise their rights to self-determination and return”, said Shawan Jabarin, the General Director of Al-Haq.

Our organisations thank South Africa for its leadership in taking the case and commend South Africa’s commitment “to end all acts of apartheid and genocide against the Palestinian people and to walk with them towards the realisation of their collective right to self-determination, for, as Nelson Mandela momentously declared, “our freedom is incomplete without the freedom of the Palestinians”.

Finally, this order for provisional measures represents the first significant action by the ICJ in holding Israel accountable for its crimes and human rights violations against the Palestinian people over the past 75 years. Nonetheless, we remind the world that Palestinians in Gaza are still enduring an unrelenting genocidal campaign that will not cease unless the international community effectively mobilises to pressure Israel into an immediate ceasefire. The urgency for immediate action and protection for the Palestinian people is critical. Time is of the essence, and any delay will inevitably lead to more loss of Palestinian lives.