South Africa vs. Israel: International Court of Justice Orders Additional Measures
A Palestinian refugee camp outside Damascus. (Photo by Michael-Ann Cerniglia)
(ANALYSIS) On March 28, the International Court of Justice ordered Israel additional provisional measures in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).
The ICJ is the principal judicial organ of the United Nations. The ICJ has a two-fold role: first, to settle, in accordance with international law, legal disputes submitted to it by states; and, second, to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and agencies of the system.
On Jan. 26, the ICJ ordered Israel, among others, to “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; (d) imposing measures intended to prevent births within the group.”
The ICJ indicated that “the conditions required by [the ICJ] Statute for it to indicate provisional measures [were] met. It [was] therefore necessary, pending its final decision, for the [ICJ] to indicate certain measures in order to protect the rights claimed by South Africa that the [ICJ] has found to be plausible.”
Before announcing the additional provisional measures in March 2024, the ICJ considered South Africa’s request of March 6, based on the change in the situation in Gaza, and Israel’s observations of March 15, on that request.
In its order, the ICJ observed that, since Jan. 26, 2024, “the catastrophic living conditions of the Palestinians in the Gaza Strip have deteriorated further, in particular in view of the prolonged and widespread deprivation of food and other basic necessities to which the Palestinians in the Gaza Strip have been subjected,” and that “Palestinians in Gaza are no longer facing only a risk of famine, as noted in the Order of 26 January 2024, but that famine is setting in.”
The ICJ indicated that “the provisional measures indicated in the Order of January 26, 2024, do not fully address the consequences arising from the changes in the situation ... thus justifying the modification of these measures.”
The order of March 28 indicated the following provisional measures:
The State of Israel shall, 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:
(a) Unanimously, 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;
(b) By fifteen votes to one, 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 Convention on the Prevention and Punishment of the Crime of Genocide, including by preventing, through any action, the delivery of urgently needed humanitarian assistance.
The issue of starvation has been receiving more attention over recent weeks. Among others, on Feb. 27, 2024, senior United Nations officials warned the U.N. Security Council of imminent famine in the Gaza Strip, urging immediate action to avert humanitarian disaster. As they emphasized, at least 576,000 people in Gaza – one-quarter of the population – were “one step away from famine.”
Days before the additional provisional measures, the World Health Organization is reported to state that “Famine is ever closer to becoming a reality in northern Gaza. People are starving and getting sick. The limited food available is insufficient to keep adults and children healthy.” According to the update from the International Federation of Red Cross and Red Crescent Societies, health services in northern Gaza have been largely destroyed and the healthcare system in southern Gaza is on the brink of collapse.
As the crisis rages on, it is crucial to recognize that civilians, including women and children, are suffering the dire and deadly consequences. As starvation becomes a reality in Gaza, humanitarian assistance cannot be delayed anymore.
This piece was republished from Forbes with permission.
Dr. Ewelina U. Ochab is a human rights advocate, author and co-founder of the Coalition for Genocide Response. She’s authored the book “Never Again: Legal Responses to a Broken Promise in the Middle East” and more than 30 UN reports. She works on the topic of genocide and persecution of ethnic and religious minorities around the world. She is on X @EwelinaUO.