Introduction
Will there be an end to the carnage unleashed by the Israeli government and army on the Palestinian people in the Gaza strip, especially after 7 October 2023? And, how can that noble humanitarian aim be achieved as soon as possible, given the mass killing and maiming, the massive destruction of infrastructure, and the denial of basic human dignity of Palestinians in Gaza and across the occupied Palestinian territories has intensified during the last almost six months, while the oppressive policies and actions by the Israeli governments have been ongoing for decades? In this blog, I have tried to analyze issues concerning the rights of the Palestinian people under international law more generally and the Genocide in the Gaza Strip case (South Africa v. Israel) more specifically, here (29 November 2023), here (1 December 2023), here (2 January 2024), here (19 January 2024), and here (31 January 2024).
On 28 March 2024, the International Court of Justice (ICJ or Court) issued a third provisional measures order (the Gaza famine order).[1] The first order was issued on 26 January (the Gaza genocide order)[2] and the second on 16 February 2024 (the Gaza Rafah order)[3]. Briefly put, the January Order requested Israel to prevent various forms of genocide and to ensure its military does not commit them;[4] to prevent and punish the direct and public incitement to commit genocide;[5] to take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance for the Palestinians in the Gaza Strip;[6] to take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of genocidal acts;[7] and to report on these measures within a month from the Order.[8] The Court also noted its grave concern about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and called for their immediate and unconditional release.[9]
On 12 February, South Africa seized the Court with a request for additional measures under Article 75(1) of the Rules of Court.[10] The gist of the request concerned measures to address the announced Israeli military offensive on Rafah and the consequences that would have on the 1,4 million Palestinians residing there. Israel responded on 15 February, noting there was no need for additional provisional measures.[11] In its decision of 16 February, the Court noted that, “This perilous situation demands immediate and effective implementation of the provisional measures indicated by the Court in its Order of 26 January 2024, which are applicable throughout the Gaza Strip, including in Rafah, and does not demand the indication of additional provisional measures.”
The March Order, which is legally binding as the other 2 previous orders, first reaffirmed the January Order.[12] Then, in view of the spread of famine and starvation, the March Order provided more details, and requested Israel to 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.[13] Additionally, it ordered Israel to 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.[14] And finally, it requested Israel to submit a report to the Court on all measures taken to give effect to its Order, within one month as from the date of this Order.[15] Recalling its findings in the January Order, the ICJ found it deeply troubling that many of the Israeli hostages remained in captivity and reiterated its call for their immediate and unconditional release.[16] The March Order can be interpreted as the Court being extremely worried about the onset of famine and starvation in Gaza and as a confirmation that Israel has not adequately complied with its January Order.
Comparing the three orders on provisional measures
Three issues stand out when looking at these important incidental proceedings. First, that the Court has been nearly unanimous in indicating its provisional measures. Second, South Africa has followed the situation in the Gaza Strip closely and has seized the Court accordingly. Third, the position of the Court with regard to ordering a suspension of hostilities seems to have shifted in the course of two months. Let me address each point briefly.
First it must be noted that for both the January and March Orders, the Court has been nearly unanimous with regard to the provisional measures ordered. For the January Order, it has been only Judge Sebutinde voting against all measures, with Judge ad hoc Barak joining her on the issues of prevention of genocide and of such acts by the military, on the issue of preservation of evidence, and on the submission of a report by Israel. Notably, Judge ad hoc Barak voted with the Court on the measures requesting Israel to prevent and punish the direct and public incitement to commit genocide against Palestinians in Gaza and on measures concerning the provision of urgently needed basic services and humanitarian assistance. The March Order follows along the same lines, with some small changes. The reaffirmation of the Court’s January Order was adopted by 14 votes to 2 (against Vice President Sebutinde and Judge ad Hoc Barak). The provisional measures concerning the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance was adopted unanimously. The measures concerning ensuring that the Israeli military does not commit acts which constitute a violation of the Palestinians in Gaza as a protected group under the Genocide Convention and the reporting within one month were adopted by 15 votes to 1 (against Judge ad hoc Barak).
Second, South Africa has approached the Court three times, asking it to indicate provisional measures concerning the situation in Gaza. The first request was made at the same time of the filing of the case on 29 December 2023, the second on 12 February 2024, and the third most recently on 6 March 2024. The first request was of a more general nature and included also indicating the immediate suspension of hostilities. The second request was concerned with the announced Israeli military attack on the Rafah, which is hosting about 1,4 million Palestinians. The third request was prompted by the onset of famine in Gaza, because of consistent impediments to humanitarian aid by Israeli authorities. This onset of famine has already claimed children’ lives and has led to general malnourishment of children and more generally of the population, where 1,1 million people are projected to face catastrophic levels of food insecurity (IPC Phase 5).[17] This humanitarian crisis has been warned repeatedly by various UN officials, UN agencies and humanitarian organizations over the last few months.
Third, the Court has not ordered an immediate ceasefire in Gaza including in this last order, because its Orders are binding among the parties to the dispute, but Hamas in not a party to these legal proceedings.[18] However, 7 of the 16 Judges, that is almost half of them, have noted in their individual opinions that the Court should have done so. In their joint declaration, Judges Xue, Brant, Gómez Robledo and Tladi have noted that the Court should have ordered the suspension of the Israeli military operations for addressing the current catastrophic humanitarian situation in Gaza.[19] Similarly, in her declaration Judge Charlesworth deems this suspension necessary, as the only way to ensure that basic services and humanitarian assistance reach the Palestinian population.[20] Judge Yusuf also noted that the protection of the rights of the Palestinian population of Gaza can be achieved through the suspension, with immediate effect, of Israeli military operations.[21] President Salam noted that new measures ordered by the Court can only take full effect if the “immediate ceasefire for the month of Ramadan” demanded by the Security Council is duly and fully respected by all the parties “and leads to a lasting sustainable ceasefire”.[22] The position of the Court seems to have shifted considerably, but the Court is still hesitant to order a ceasefire or a suspension of hostilities. If the humanitarian situation in Gaza continues to deteriorate, as it most likely will, given the failure by Israel to allow in sufficient humanitarian aid and continuation of military operations, including against hospitals, the Court might reconsider its provisional measures. Whether the Court will order a suspension of military operations or a ceasefire in the future remains to be seen.
Concluding remarks
Regrettably, the situation in Gaza has been deteriorating with every day that passes, despite many calls for ceasefire and adequate humanitarian aid, and the release of the remaining Israeli hostages. Instead of heeding the repeated calls by many world leaders, UN officials, and international bodies and agencies, the Israeli government has chosen to take hostage the whole 2,3 million Palestinians living in Gaza and subject them to killing, maiming, and famine. Only the combined pressure of the organized international community will ultimately force this Israeli government to allow in enough humanitarian aid for the population of Gaza and stop further civilian losses. Independently of the recent Court’s March Order, the UN Security Council has demanded an immediate ceasefire for the month of Ramadan in its resolution 2728 (2024) of 25 March 2024. This resolution needs to be fully implemented by Israel. The next step, if the conduct of the Israeli government does not change, is to impose targeted economic and other sanctions.
[1] ICJ, Order (Request for the Modification of the Order of 26 January 2024 Indicating Provisional Measures), 28 March 2024, available at https://icj-cij.org/sites/default/files/case-related/192/192-20240328-ord-01-00-en.pdf.
[2] ICJ, Order of 26 January 2024, available at https://icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf.
[3] ICJ, Decision of the Court on South Africa’s request for additional provisional measures, 16 February 2024, available at https://icj-cij.org/sites/default/files/case-related/192/192-20240216-pre-01-00-en.pdf
[4] Paragraph 86(1) and (2) of the January Order.
[5] Paragraph 86(3) of the January Order.
[6] Paragraph 86(4) of the January Order.
[7] Paragraph 86(5) of the January Order.
[8] Paragraph 86(6) of the January Order.
[9] Paragraph 85 of the January Order.
[10] ICJ, Request for additional measures under Article 75(1) of the Rules of Court submitted by South Africa, available at https://icj-cij.org/sites/default/files/case-related/192/192-20240212-wri-01-00-en.pdf.
[11] ICJ, Observations of the State of Israel on the request for additional measures under Article 75 (1) of the Rules of Court, available at https://icj-cij.org/sites/default/files/case-related/192/192-20240215-wri-01-00-en-1.pdf.
[12] Paragraph 51(1) of the March Order.
[13] Paragraph 51(2)(a) of the March Order.
[14] Paragraph 51(2)(b) of the March Order.
[15] Paragraph 51(3) of the March Order.
[16] Paragraph 50 of the March Order.
[17] See OCHA oPt, Hostilities in the Gaza Strip and Israel – reported impact | Day 175, available at https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-reported-impact-day-175.
[18] Paragraph 44 of the March Order.
[19] Joint declaration of Judges Xue, Brant, Gómez Robledo and Tladi, paras. 1 and 8.
[20] Declaration of Judge Charlesworth, para. 7.
[21] Declaration of Judge Yusuf, paras. 10-11 and 13, at 13.
[22] Declaration of President Salam, para. 11.
Be First to Comment