“The alarm has now been sounded by the Court. All the indicators of genocidal activities are flashing red in Gaza. An injunction has been served for ending the atrocities. The provisional measures indicated by the Court are binding” (Judge Yusuf, 28 March 2024)
Al-Haq, Al Mezan Center for Human Rights and the Palestinian Centre for Human Rights welcome the modified provisional measures ordered by the International Court of Justice (the “Court”) in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). In this order, the Court granted South Africa’s urgent request for further provisional measures aimed at preventing Israel from causing irreparable harm to the Palestinian people in Gaza and its right to exist under the 1948 Genocide Convention.
The Court considered that the catastrophic conditions in the Gaza Strip, including “the fact that famine is setting in” are “exceptionally grave” and constitute a change in the situation that warranted the indication of the initial provisional measures on 26 January 2024. It went on to say that these measures “do not fully address the consequences arising from” such a change in the situation, justifying their modification accordingly. Hence, the “ensure immediate and effective” assistance clause in the 26 January order is considered to be insufficient. Two additional provisional measures were ordered against the State of Israel “in conformity with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in view of the worsening conditions of life faced by Palestinians in Gaza, in particular the spread of famine and starvation”. Crucially, the Court recognised that famine is no longer a risk threatening Palestinians, as it determined in its Order on 26 January, but rather “famine is setting in with at least 31 people, including 27 children, having already died of malnutrition and dehydration […]”.
The Court unanimously ordered that Israel must “(a) take all necessary and effective measures to ensure, without delay, in full co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements, as well as medical supplies and medical care to Palestinians throughout Gaza, including by increasing the capacity and number of land crossing points and maintaining them open for as long as necessary”. In addition, by fifteen votes to one, with Israeli Justice Barak in dissent, the Court voted to “(b) ensure with immediate effect that its military does not commit acts which constitute a violation of any of the rights of the Palestinians in Gaza as a protected group under the Genocide Convention, including by preventing, through any action, the delivery of urgently needed humanitarian assistance”. Notably, Vice President Sebutinde, who had overwhelmingly voted against the original provisional measures, also voted in favour.
The purpose of provisional measures is to avoid irreparable harm, which is why they require immediate implementation. Elaborating on this point, in a separate declaration, Judge Yusuf stated that the provisional measures initially ordered by the Court in this case involve “the suspension or termination of any actions undertaken by a State in its territory or in the territory of others which might have contributed to the existence of indicia of genocidal activity. […] is an obligation of result which must be acted upon immediately. He added that “[t]he rights of the Palestinian population of Gaza, including its right of existence, must be preserved pending the final decision of the Court on the merits. Such rights cannot and should not continue to be subjected to the risk of irreparable prejudice” which “can only be achieved through the suspension, with immediate effect, of Israeli military operations”. This is a recognition that the 26 January Order indicated an implicit ceasefire.
In order to address this situation, the Court stressed the need “to ensure the effective and efficient delivery of food, water, medical and humanitarian assistance” through increased “open land crossing points into Gaza and to maintain them open so as to increase the flow of aid delivery”. Furthermore, the Court explicitly relied on the declarations made by various representatives of the United Nations and organisations which made the point that “the catastrophic humanitarian situation can only be addressed if the military operations in the Gaza Strip are suspended. In this regard, the Court took note of the United Nations Security Council (UNSC) Resolution 2728 that demanded on 25 March “an immediate ceasefire”.
Besides the catastrophic humanitarian situation, the Court also noted the sharp increase in Palestinian casualties since 26 January, with “over 6,600 additional fatalities and almost 11,000 additional injuries among Palestinians in the Gaza Strip”. In light of the above, the Court concluded that this situation in Gaza still presents a real and imminent risk of irreparable harm to the Palestinian people.
Concurring with this conclusion, Presiding Judge Salam further declared that the conditions for genocide are present and that the lack of humanitarian aid is jeopardizing the “right of existence” of the entire Palestinian group. In the same vein, Judge Yusuf stated that the Court can base itself on “objective indicia relating to the possible commission of genocide” in Gaza, where “the right of existence of the Palestinian people […] is currently at risk of irreparable prejudice” in light of the explicit finding of breach of international humanitarian law (IHL), demonstrated through “the extent of the atrocities committed against civilians, and the death and suffering caused to them, is of an order which exceeds by far the necessities of war and the limits imposed by the laws of war”. Judge Yusuf rightly concluded that it was “the duty of the Court to call for an end to the” genocidal acts being committed by Israel.
The Court in its decision explicitly stated that it cannot exercise power to indicate provisional measures against States and organisations that are not party to the proceedings. On this basis the Court cannot, for example order that all parties cease fighting, nor can it include provisional measures against “all States” –– as South Africa had requested. While they voted in favour of this decision, Judges Xue, Brant, Gómez Robledo and Tladi expressed their regrets “that this measure does not directly and explicitly order Israel to suspend its military operations for the purpose of addressing the current catastrophic humanitarian situation in Gaza.” Moreover, Judge Charlesworth, while recognising that “the Court should have made it explicit that Israel is required to suspend its military operations in the Gaza Strip”, made the point that the Court could “not order ceasefire as the conflicting parties are not all before it”. However, the opinions of the judges on this matter indicate an implicit requirement for the suspension of military operations.
Our organisations welcome the Court’s grant of one month to Israel to respond, which considering the urgency of the matters, the famine, and the likelihood and scale of future Israeli attacks, especially in Rafah, necessitates the continuing monitoring and oversight by the Court over Israel’s actions as an important mechanism for compliance.
We thank South Africa for its continuous commitment to ending acts of genocide against the Palestinian people and seeking Israel’s accountability. We also urge other Third States to follow South Africa’s lead. We reiterate that Israel’s genocidal campaign will not cease unless the international community effectively mobilises to pressure Israel into an immediate ceasefire. As stated by South Africa: “If there is non-compliance, the global community must ensure adherence when it comes to the sanctity of humanity”. Urgent measures are needed as more delay means more green light given to Israel and thus more Palestinian casualties.