On January 26, the International Court of Justice (ICJ) indicated preliminary measures in the case brought against Israel by South Africa under the Genocide Convention. The final ruling on the merits of the case is expected to take months or years for the ICJ to complete. But the court’s initial findings stated that South Africa had succeeded in showing a plausible case of genocide and it issued six provisional measures that Israel was required to take immediately. The ICJ ordered Israel to report within 30 days on concrete steps that it had taken to comply, a period that ended on February 26.
On that day, Israel reported on its steps, but requested that its report be kept secret. It was not clear why, but it is possible that revealing the report and the steps might endanger their effectiveness or ongoing negotiations for a ceasefire and prisoners’ exchanges. It is also possible that the steps were inadequate and may cause political embarrassment or prompt a call for additional measures. Whatever the reason, there is sufficient public evidence from the Gaza war showing that Israel has failed to adequately take the necessary steps and that it is in violation of the court’s orders.
Six Specific Provisional Measures
- The specific provisional measures are as follows: Orders 1 and 2 required the State of Israel and the Israeli military, respectively, to refrain from actions that violate the named provisions of the Genocide Convention.
- Order 3 required the State of Israel to “take all measures within its power to prevent and punish the direct and public incitement to commit genocide.” The Israeli judge on the ICJ joined the court majority in voting for this requirement.
- Order 4 required the State of Israel to “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance” and “to address the adverse conditions of life faced by Palestinians in the Gaza Strip.” The Israeli judge also joined the majority in voting for this requirement.
- Order 5 required the State of Israel to preserve all evidence relating to the allegation of genocide and prevent the destruction of such evidence.
- Order 6 required the State of Israel to submit a report within 30 days on the steps taken to comply with the orders.
Assessing Israel’s Compliance
Orders 1 and 2 pertain to the step of refraining from actions that violate the Genocide Convention, specifically: “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.”
Israel has always denied that it carried out any of these actions, and there is no indication that the Israeli government or that its military has varied its actions or behavior because of the provisional order. By all objective standards, it has continued its military campaign in a manner that has caused massive casualties and serious bodily and mental harm and that has inflicted on Palestinians conditions of life calculated to bring about its physical destruction. Israel has also ordered the movement of the population away from its normal residences, bombed these residences to the ground, and denied the population, at peril of death, from the possibility of returning to their homes, particularly in the northern portion of the Gaza strip. Israel has destroyed or ordered the forcible evacuation of hospitals and clinics and made normal births difficult.
Israel has continued its military campaign in a manner that has caused massive casualties and serious bodily and mental harm.
The number of deaths in Gaza, including women and children, has surpassed 31,000, while more than 73,000 others have been injured, according to the figures and data provided by the Palestinian Ministry of Health which have proven accurate and detailed, giving the names, gender, and age of the victims. Nearly half of Gaza’s population has been forced into Rafah, the last city of refuge near the Egyptian border, while three-quarters of Gaza’s 2.2 million people have been displaced. Many of the Strip’s hospitals have been destroyed. Indeed, the question of compliance with the provisional orders depends on whether there is any perceptible change in the behavior of the State of Israel and its armed forces, which the ICJ already considered to constitute a plausible assessment of genocide. Despite repeated requests by its staunchest ally the United States, Israel has not announced any new or different measures to reduce civilian casualties or to address any of the behavior that the ICJ judged to be “plausibly genocidal.” But discussions between President Biden and Prime Minister Netanyahu have been ongoing, and indeed the latter has just agreed to send a delegation to Washington to continue talking about Rafah and how to avoid said casualties.
As for Order No. 3 (public incitement to genocide and punishment of those involved in such public incitement), no announcement was made about any arrests, investigations, or measures taken regarding said incitement. To be sure, there is evidence that Israel has failed to curb incitement, and new evidence of genocidal incitement has surfaced. Two days after the ICJ’s issuance of the provisional orders, Minister of National Security Itamar Ben-Gvir’s Otzma Yehudit (Jewish Power) Party held a conference in Jerusalem at which 12 serving government ministers and 15 Knesset members appeared. That conference openly called for the extermination and expulsion of the people of Gaza and the establishment of Jewish settlements in the place of the displaced Palestinians. No one was arrested, investigated, or punished for their slogans or incitement.
A Palestinian human rights organization, Law for Palestine, has been tracking and translating genocidal statements made by Israeli officials. Its database includes 56 statements made since the ICJ decision.
A group of right-wing Israelis have gathered outside the Gaza strip and physically prevented the entry of food and water to Gaza from the northern crossings. They were not arrested or prevented from blocking the delivery of aid. They have freely spoken to the press and have made genocidal statements demanding the death and forced starvation of Palestinians until all Israeli prisoners in Gaza are released. One of their leaders, Daniella Weiss, made it clear that no Gazan will be left after the war, and that those wishing for a quiet life should leave for other countries. The Israeli Minister for the Advancement of Women, May Golan, said during a Knesset debate on February 19 that “I am personally proud of the ruins in Gaza, and that every baby, even 80 years from now, will tell their grandchildren what the Jews did.”
Israelis’ Tik Tok and other social media accounts have been full of such incitement language, particularly in Hebrew. It is evident that Israel has not fulfilled the orders of the ICJ on the issue of incitement.
On Order No. 4, Israel has failed to carry out “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.” The UN Office for the Coordination of Humanitarian Aid stated on February 29 that many of the missions seeking to bring humanitarian aid to northern Gaza had been denied access. Human Rights Watch and Amnesty International have made similar charges concerning Israel’s failure to permit the entry of aid.
In fact, not only has Israel failed to provide aid itself, it has been using its military force to prevent others from providing such aid and to place severe restrictions on the aid it allows, under a variety of excuses, primarily that it wants to prevent the entry of materials into the Gaza Strip that may serve Hamas or that may be used by Hamas in any way. Furthermore, immediately after the issuance of the Provisional Orders, Israel presented evidence to the United States and other western governments that 12 UNRWA employees had participated in the October 7 attack on Israel, and that it viewed UNRWA as working with Hamas. UNRWA suspended the employees listed by Israel and announced an independent investigation. A February 2024 report on an investigation by UNRWA stated that released agency employees said that they were pressured by Israel to admit that the agency has connections to Hamas and that some staff took part in the October 7 attack. Israel’s accusations caused 18 countries to suspend their contributions to UNRWA and Israel announced that it did not trust UNRWA, the UN agency responsible for Palestinian refugees, to distribute food. It has 13,000 employees in Gaza, and its facilities provide shelter and basic services for millions of Palestinian refugees, including many in Gaza.
Not only has Israel failed to provide aid itself, it has been using its military force to prevent others from providing such aid.
Under Israel’s inspection regime, it strictly controls what materials are allowed in and how much as well as where they are allowed to enter. The number of trucks allowed is one indicator, but even after a truck is allowed in, there are persistent media reports that aid trucks have difficulty reaching their destinations, particularly in northern Gaza, which is under total control of the Israeli army. The roads are difficult to pass because of damage caused by bombardment and the Israeli army often attacks the aid trucks to the point that aid agencies now refuse to go to northern Gaza as it is not safe. Palestinian Police, who used to accompany the trucks and provide security, have been targeted as Hamas members by Israeli soldiers. Furthermore, as starvation increases, desperate Palestinian mobs surround trucks, seeking food for their own starving families. Israeli tanks and soldiers, who are supposed to safeguard the convoys, have fired upon hungry Palestinians, causing deaths, injuries, and panic.
In the infamous “flour massacre of February 29,” more than 100 Gaza civilians were killed and over 700 injured when Israeli tanks fired upon a large group of desperate Palestinians waiting for aid trucks. Israel admits having fired at the crowds, but claimed most of the casualties were killed in the stampede that followed. Hospital officials, however, claim that most of the injured showed bullet or shrapnel wounds, not signs of suffocation. Either way, Israel can hardly be credited with fulfilling its obligations either under international law, or under the specific directives of the Preliminary Orders of the ICJ. The obstacles created for delivery of aid have led to several Jordanian and American attempts to airdrop meals. The United States is also building a pier off the Gaza coast to facilitate reaching the Gazans, particularly in the north.
Israel will undoubtedly cite its decision to allow some aid trucks in, as well as its permission to allow the airdrops and the construction of the pier, as examples of its efforts to provide food. But most observers including UN agencies have pointed out that Israeli obstruction remains the greatest obstacle to providing humanitarian assistance to starving Palestinians.
Since the decision of the ICJ, hunger and starvation have increased, and reports of more than 20 Palestinians, including children, dying from starvation and malnutrition have been published by the Gazan Health Ministry. Reports of mothers giving birth and losing their children or their reproductive capacities as a result of lack of milk, food, anesthesia, and medical care also would seem to violate the instructions of the ICJ.
Since the decision of the ICJ, hunger and starvation have increased.
As for Order No. 5, no one knows what evidence Israel is collecting or preserving in accordance with this directive. What is known is that Israel has not allowed foreign journalists to enter Gaza independently but as embedded with Israeli army units, and that it has targeted and killed around 100 local journalists, sometimes targeting their homes and killing family members as well.
Finally, Israel is reported to have submitted a report in response to Order No. 6. But it remains secret. There is no publicly available information about the contents or adequacy of the response.
In conclusion, it seems clear that Israel has failed to abide by the substance or spirit of the provisional measures and is in violation of their directives. It is still unclear what the ultimate aims of Israel’s Gaza operation are. The objective may be to forcibly remove the population into Sinai, to reoccupy and resettle Gaza by Jewish settlers, or to make the enclave so unlivable that Palestinians will leave on their own to seek food and shelter no longer found inside or allowed into Gaza. In all cases, the operation seems to proceed along lines that violate the mandate of the ICJ orders, and the provisions of the Genocide Convention. What action the ICJ will take, if any, remains to be seen.
The views expressed in this publication are the author’s own and do not necessarily reflect the position of Arab Center Washington DC, its staff, or its Board of Directors.
