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ICJ: Israel must ensure with immediate effect that its military forces do not commit any of the acts described in the Genocide Convention
1-26-2024
International Court of Justice on 26 JANUARY 2024 released their order for the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)
The Court recalls that, in accordance with Article I of the Convention, all States parties thereto have undertaken “to prevent and to punish” the crime of genocide. Article II provides that “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group”
The Court recalls that, in order for acts to fall within the scope of Article II of the Convention,
“the intent must be to destroy at least a substantial part of the particular group. That is demanded by the very nature of the crime of genocide: since the object and purpose of the Convention as a whole is to prevent the intentional destruction of groups, the part targeted must be significant enough to have an impact on the group as a whole.”
(Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 126, para. 198.)
The Palestinians appear to constitute a distinct “national, ethnical, racial or religious group”, and hence a protected group within the meaning of Article II of the Genocide Convention.
The Court observes that, according to United Nations sources, the Palestinian population of the Gaza Strip comprises over 2 million people. Palestinians in the Gaza Strip form a substantial part of the protected group.
The Court notes that the military operation being conducted by Israel following the attack of 7 October 2023 has resulted in a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure. While figures relating to the Gaza Strip cannot be independently verified, recent information indicates that 25,700 Palestinians have been killed, over 63,000 injuries have been reported, over 360,000 housing units have been destroyed or partially damaged and approximately 1.7 million persons have been internally displaced (see United Nations Office for the Coordination of Humanitarian Affairs (OCHA), Hostilities in the Gaza Strip and Israel ? reported impact, Day 109 (24 Jan. 2024)).
The Court takes note, in this regard, of the statement made by the United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Mr Martin Griffiths,on 5 January 2024:
“Gaza has become a place of death and despair.
. . . Families are sleeping in the open as temperatures plummet. Areas where civilians were told to relocate for their safety have come under bombardment. Medical facilities are under relentless attack. The few hospitals that are partially functional are overwhelmed with trauma cases, critically short of all supplies, and inundated by desperate people seeking safety.
A public health disaster is unfolding. Infectious diseases are spreading in overcrowded shelters as sewers spill over. Some 180 Palestinian women are giving birth daily amidst this chaos. People are facing the highest levels of food insecurity ever recorded. Famine is around the corner.
For children in particular, the past 12 weeks have been traumatic: No food. No water. No school. Nothing but the terrifying sounds of war, day in and day out. Gaza has simply become uninhabitable. Its people are witnessing daily threats to their very existence — while the world watches on.” (OCHA, “UN relief chief: The war in Gaza must end”, Statement by Martin Griffiths, Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, 5 Jan. 2024.)
The UNRWA Commissioner-General also stated that the crisis in Gaza is “compounded by dehumanizing language” (UNRWA, “The Gaza Strip: 100 days of death, destruction and displacement”, Statement by Philippe Lazzarini, Commissioner-General of UNRWA, 13 Jan. 2024).
In this regard, the Court has taken note of a number of statements made by senior Israeli officials. It calls attention, in particular, to the following examples.
On 9 October 2023, Mr Yoav Gallant, Defence Minister of Israel, announced that he had ordered a “complete siege” of Gaza City and that there would be “no electricity, no food, no fuel”
and that “everything [was] closed”. On the following day, Minister Gallant stated, speaking to Israeli troops on the Gaza border:
“I have released all restraints . . . You saw what we are fighting against. We are fighting human animals. This is the ISIS of Gaza. This is what we are fighting against . . . Gaza won’t return to what it was before. There will be no Hamas. We will eliminate everything. If it doesn’t take one day, it will take a week, it will take weeks or even months, we will reach all places.”
On 12 October 2023, Mr Isaac Herzog, President of Israel, stated, referring to Gaza:
“We are working, operating militarily according to rules of international law. Unequivocally. It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not aware, not involved. It is absolutely not true. They could have risen up. They could have fought against that evil regime which took over Gaza in a coup d’état. But we are at war. We are at war. We are at war. We are defending our homes. We are protecting our homes. That’s the truth. And when a nation protects its home, it fights. And we will fight until we’ll break their backbone.”
On 13 October 2023, Mr Israel Katz, then Minister of Energy and Infrastructure of Israel, stated on X formerly Twitter):
“We will fight the terrorist organization Hamas and destroy it. All the civilian population in [G]aza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.”
The Court also takes note of a press release of 16 November 2023, issued by 37 Special Rapporteurs, Independent Experts and members of Working Groups part of the Special Procedures of the United Nations Human Rights Council, in which they voiced alarm over “discernibly genocidal and dehumanising rhetoric coming from senior Israeli government officials”. In addition, on 27 October 2023, the United Nations Committee on the Elimination of Racial Discrimination observed that it was “[h]ighly concerned about the sharp increase in racist hate speech and dehumanization directed at Palestinians since 7 October”.
In the Court’s view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention.
The Court has already found (see paragraph 54 above) that at least some of the rights asserted by South Africa under the Genocide Convention are plausible.
The Court considers that the civilian population in the Gaza Strip remains extremely vulnerable. It recalls that the military operation conducted by Israel after 7 October 2023 has resulted, inter alia, in tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities and other vital infrastructure, as well as displacement on a massive scale (see paragraph 46 above). The Court notes that the operation is ongoing and that the Prime Minister of Israel announced on 18 January 2024 that the war “will take many more long months”. At present, many Palestiniansin the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential
medicines or heating. The WHO has estimated that 15 per cent of the women giving birth in the Gaza Strip are likely to experience complications, and indicates that maternal and newborn death rates are expected to increase due to the lack of access to medical care.
In these circumstances, the Court considers that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment. In light of the considerations set out above, the Court considers that there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, before it gives its final decision.
CONCLUSION AND MEASURES TO BE ADOPTED
The Court considers that, with regard to the situation described above, Israel must, in accordance with its obligations under the Genocide Convention, 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: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group. The Court recalls that these acts fall within the scope of Article II of the Convention when they are committed with the intent to destroy in whole or in part a group as such (see paragraph 44 above). The Court further considers that Israel must ensure with immediate effect that its military forces do not commit any of the above-described acts.
The Court is also of the view that Israel must 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.
The Court further considers that Israel must 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.
Israel must also 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 Genocide Convention against members of the Palestinian group in the Gaza Strip,In view of the specific provisional measures it has decided to indicate, the Court considers that Israel must 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. The report so provided shall then be communicated to South Africa, which shall be given the opportunity to submit to the Court its comments thereon.
Footnotes: Footnotes: https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf
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