A deep dive into ICJ's measures and orders for Palestinians and Israel's continued non-compliance

As the word 'genocide' is once again the talk of the town, there is very little spoken about an important issue that has been ignored for almost two years (and decades more) - the plight of the Palestinian people.

We take a look at the provisional measures, what the International Court of Justice ordered, what Israel has done in that time and what the conclusion of the case is.

Background

In a groundbreaking move on December 29 2023, South Africa filed an application instituting proceedings against Israel before the International Court of Justice (ICJ), the principal judicial organ of the United Nations, over alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) in relation to Palestinians in the Gaza Strip.

What followed was several hearings, and other countries following suit.

Provisional measures

South Africa requested the International Court of Justice (ICJ) to implement provisional measures to protect the Palestinian people under the Genocide Convention. The key measures include:

1. Israel must immediately suspend military operations in Gaza.
2. Israel must ensure that any military or irregular armed units under its influence do not continue these operations.
3. Both South Africa and Israel must take reasonable steps to prevent genocide against the Palestinian people.
4. Israel is required to refrain from actions that could lead to genocide, including: Killing members of the Palestinian group, preventing births within the group, inflicting conditions that could lead to their physical destruction and causing serious harm to them.
5. Israel must prevent the expulsion and forced displacement of Palestinians and ensure access to food, water, humanitarian assistance, and medical supplies.
6. Israel must ensure that its military and associated units do not commit acts of genocide or incite such actions.
7. Effective measures must be taken to preserve evidence related to genocide allegations, allowing access for fact-finding missions.
8. Israel is to report to the Court on the measures taken within one week and at regular intervals thereafter until a final decision is made.
9. Israel must avoid any actions that could worsen the dispute before the Court.

In May 2024, the Court reaffirmed its previous provisional measures and indicated new 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 civilians in the Rafah Governorate:

(a) By thirteen votes to two,

Immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part;

(b) By thirteen votes to two,

Maintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance;

(c) By thirteen votes to two,

Take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide;

(3) By thirteen votes to two,

Decides that the State of Israel shall 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.

What ICJ ordered

The Court unanimously ordered 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.

By fifteen votes to one (Judge ad hoc Barak of Israel dissenting), the Court 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 Convention on the Prevention and Punishment of the Crime of Genocide, including by preventing, through any action, the delivery of urgently needed humanitarian assistance.
• 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.

These provisional measures supplement those of 26 January, which ordered Israel inter alia to refrain from committing genocidal acts against Palestinians in Gaza and to prevent and punish direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip.

What has Israel done since then?

The death toll currently stands at a staggering 52,928, with 119,846 wounded and 14,000 missing. 

For two months, from January 19 to March 17, there was a ceasefire, in which 170 died. 

On March 18, the world woke up to news that Israel broke the ceasefire agreement, resuming relentless attacks. 

While the death toll is incredibly high, those that are alive deal with the constant fear, pain and starvation. More than two million Palestinians in Gaza are starving due to Israel cutting off all aid – food or medicine – entirely for the last two months. This accelerated starvation and medical crises.

In written statements, Israel called the hearings a “circus” and accused the court of anti-Semitism.

Additionally, it claimed it has no obligation to work with UN organs or aid groups. It believes it has sovereign right to “defend itself” and this takes priority over its responsibility to deliver aid to the people it occupies.

Conclusion of the case

On May 2, the ICJ concluded public hearings into what Israel’s obligations are regarding allowing United Nations agencies and other relief groups to work in the Palestinian territory it occupies.

The panel of judges has heard oral arguments from 40 countries, including China, France, Indonesia, Pakistan, Russia and the United Kingdom.

Participating states slammed Israel for restricting humanitarian aid into Gaza since launching a genocidal war on the enclave on October 7, 2023.

The states participating in the hearings emphasised that ensuring Palestinians have access to humanitarian relief is crucial for their survival, essential for protecting their right to self-determination, and vital for upholding the integrity of the entire United Nations system and the treaties that support it.

British Minister for the Middle East Hamish Falconer said that Israel has an obligation to implement the set of provisional measures issued by the ICJ.

In a statement on Gaza to the British House of Commons, Falconer called on Israel to lift the block on aid entering Gaza.

“Tonnes of food are currently sitting rotting at the Gaza/Israel border, blocked from reaching people who are starving,” he added.

“Overnight yet more Palestinians have been killed in Israeli strikes,” he added, while reiterating that “This must end”. 

"Let me make the Government’s position crystal clear. We strongly oppose the expansion of Israel’s operations. Any attempt to annex land in Gaza would be unacceptable. Palestinian territory must not be reduced nor subjected to any demographic change. We want this war to end. We want an immediate ceasefire, the release of all hostages, the urgent provision of humanitarian aid and a pathway to a political solution."

The court will likely deliberate for months before making a ruling, requested of it in December by the UN General Assembly.

IOL