Israel is continuing its genocidal campaign against the Palestinians in Gaza and hindering humanitarian relief efforts despite specific orders from the International Court of Justice (ICJ), or the World Court, to refrain from these very actions.
On January 26, in South Africa’s genocide case against Israel, the ICJ ordered the following provisional measures be taken:
Since the ICJ issued the order, Israel has consistently flouted its mandate.
Gaza’s Health Ministry reported that between January 26 and February 23, more than 3,400 Palestinians in Gaza had been killed. Israeli forces repeatedly killed and wounded civilians fleeing or taking shelter in areas the Israeli military had declared “safe zones.” As of this writing, more than 32,000 Palestinians have been killed and nearly 75,000 have been wounded in Gaza.
One month after the ICJ’s ruling, Human Rights Watch reported that, “Israel continues to obstruct the provision of basic services and the entry and distribution within Gaza of fuel and lifesaving aid, acts of collective punishment that amount to war crimes and include the use of starvation of civilians as a weapon of war. Fewer trucks have entered Gaza and fewer aid missions have been permitted to reach northern Gaza in the several weeks since the ruling than in the weeks preceding it,” citing a study by the United Nations Office of the Coordination of Humanitarian Affairs.
“The Israeli government is starving Gaza’s 2.3 million Palestinians, putting them in even more peril than before the World Court’s binding order,” said Omar Shakir, who is Israel and Palestine director at Human Rights Watch. “The Israeli government has simply ignored the court’s ruling, and in some ways even intensified its repression, including further blocking lifesaving aid.”
On March 18, the Integrated Food Security Phase Classification, the world’s leading tracker of humanitarian crises, reported that a state of famine is “imminent” in Gaza unless there is an immediate ceasefire and full access granted to protect civilians; provide food, water and medicine; and restore health, water, energy and sanitation services.
Euro-Med Human Rights Monitor found that “The ongoing Israeli massacre in Gaza City’s Al-Shifa Medical Complex and surrounding areas has left at least 100 Palestinians dead, many of whom were victims of extrajudicial executions after their arrest. The international community must intervene immediately to put an end to this atrocity.”
In light of Israel’s impending ground offensive in Rafah, South Africa returned to the ICJ on February 12 and requested additional provisional measures. South Africa noted that Rafah is generally home to 280,000 Palestinians. But as of February 12, 1.4 million people — more than half of Gaza’s population, about half of whom are children — were living there, predominantly in makeshift tents. Pursuant to Israeli military evacuation orders, these people fled to Rafah from their homes and areas that had been largely destroyed by Israel. The International Committee of the Red Cross said there is “no option” for them.
On February 16, the ICJ refused to order additional provisional measures. But the court quoted UN Secretary General Antonio Guterres, who said that a large-scale assault against Rafah “would exponentially increase what is already a humanitarian nightmare with untold regional consequences.” The court concluded: “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.”
An Israeli ground assault on Rafah would be disastrous. President Joe Biden has reportedly asked Israel not to assault Rafah during Ramadan (which would present a public relations fiasco for the U.S.). But Israel is likely to mount its genocidal attack on Rafah after Ramadan ends on April 9.
On March 6, as the slaughter continued, South Africa once again returned to the ICJ and requested additional provisional measures “in order urgently to ensure the safety and security of 2.3 million Palestinians in Gaza, including over a million children.” South Africa asked the court to order: “All participants in the conflict must ensure that all fighting and hostilities come to an immediate halt, and that all hostages and detainees are released immediately.”
South Africa also urged the court to order that Israel immediately and effectively “enable the provision of urgently needed basic services and humanitarian assistance to address famine and starvation and the adverse conditions of life faced by Palestinians in Gaza.” The measures South Africa requested would require Israel to (a) immediately suspend its military operations in Gaza; (b) lift its blockade of Gaza; (c) rescind all other existing measures and practices that directly or indirectly obstruct the access of Palestinians in Gaza to humanitarian assistance and basic services; and (d) ensure the provision of adequate and sufficient food, water, fuel, shelter, clothing, hygiene, sanitation requirements and medical aid.
Israel responded on March 15, calling South Africa’s request for additional provisional measures “morally repugnant” and “an abuse both of the Genocide Convention and of the Court itself.” Israel characterized South Africa’s petition as “unusual in its bellicose and offensive tone” and “belligerent and disingenuous.” It labeled South Africa’s charges “outrageous” and “categorically denied” them, invoking Israel’s “inherent right to defend itself.” It made the incredulous claim that “Israel remains unwavering in its commitment to its humanitarian obligations and the charge that it seeks to deliberately harm the Palestinian civilian population must be rejected outright.”
The ICJ has not yet ruled on South Africa’s March 6 request for additional provisional measures.
In addition to South Africa’s genocide case against Israel, several other lawsuits are pending. They include a case brought in the ICJ by Nicaragua against Germany for facilitating Israel’s genocide in Gaza; a case filed by Palestinians against Biden, Secretary of State Antony Blinken and Defense Secretary Lloyd Austin in U.S. federal court for complicity in genocide and failure to prevent genocide; and a case that the UN General Assembly referred to the ICJ regarding whether Israel’s occupation of Palestinian territory is illegal.
These cases have propelled the issue of the legality of Israel’s genocide in Gaza and occupation of Palestinian territory into the international discourse. We can expect to see additional litigation in the ICJ, including cases Nicaragua intends to file against the United Kingdom, the Netherlands and Canada for supplying weapons to Israel as it commits genocide.
The genocide being witnessed by the global community may also spur individual countries to sue Israeli and U.S. leaders for genocide under the well-established doctrine of universal jurisdiction.
While Israel and its accomplices continue to violate the ICJ’s orders and other international laws, millions of people have taken to the streets in support of the Palestinian people. The genocide in Gaza has led to the “mobilization of shame” whereby Israel is condemned in the eyes of the world for its atrocities against Palestinians. Israel’s genocide has fueled the Boycott, Divestment, Sanctions movement, and states like Nicaragua and South Africa are taking steps to compel the enforcement of legal consequences for Israel and its enablers.
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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. She is founding dean of the People’s Academy of International Law and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.
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