ICJ grants SA’s request for new Gaza emergency order
Publish date: 01 April 2024
Issue Number: 1070
Diary: IBA Legalbrief Africa
Category: International
The International Court of Justice (ICJ) on Thursday granted South Africa’s request for another emergency order around the Hamas-Israel war, but did not go as far as South Africa – and some of its judges – had hoped. While it considers SA's claim that Israel is engaging in genocide in Gaza, the ICJ previously ordered Israel to preserve the lives of civilians. As previously reported in Legalbrief Africa, SA in February asked the ICJ to issue further orders ahead of Israel's planned assault on Rafah, which it declined to do. SA last month again asked for additional measures, this time in light of what it said was a famine already taking hold in Gaza. News24 reports that it said the court should tell those involved to ensure ‘that all fighting and hostilities come to an immediate halt’. That the world court declined to do – but it agreed that the humanitarian situation in Gaza is so dire that Israel must be forced to take more action.
By unanimous vote – including that of Israeli-appointed Judge Aharon Barak – the ICJ said Israel must take all necessary and effective measures to ensure, without delay, in full co-operation with the UN: ‘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.’ Israel had argued it was taking all reasonable steps to ensure basic necessities could reach Gaza, but that Hamas and the realities of war were holding back deliveries. The News24 report says in a second element of the order, 15 ICJ judges – which Barak opposed – ordered Israel to ensure 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'. Those orders were necessary ‘in view of the worsening conditions of life faced by Palestinians in Gaza, in particular the spread of famine and starvation’, the court said.
Ireland last week said it would intervene in SA's genocide case against Israel, in the clearest signal to date of its concern about Israeli operations in Gaza. News24 reports that Foreign Minister Micheal Martin said that while it was for the world court to decide whether genocide was being committed, he wanted to be clear that Hamas' 7 October attack and what is happening in Gaza now ‘represents the blatant violation of international humanitarian law on a mass scale.’ ‘The taking of hostages. The purposeful withholding of humanitarian assistance to civilians. The targeting of civilians and of civilian infrastructure. The indiscriminate use of explosive weapons in populated areas. The use of civilian objects for military purposes. The collective punishment of an entire population,’ Martin said. He added that ‘the view of the international community is clear’ (and) ‘enough is enough’.
UN Secretary-General Antonio Guterres said it would be ‘unforgivable’ if a UN Security Council resolution calling for a ceasefire in Gaza was not implemented – but Israel suggested it would change nothing in its conduct of the war, and Hamas said it would only swap hostages for prisoners. The council has long struggled to find agreement, with the US vetoing three draft resolutions on Gaza, and Russia and China vetoing two by the US, the last two weeks ago. However, the US abstained despite declared reservations, allowing Resolution 2728 to take on the force of international law. South African International Relations & Co-operation Minister Naledi Pandor said SA was pleased that the council has, ‘at long last, demanded an immediate and lasting ceasefire for the month of Ramadan’, and called on the council to ensure it is enforced. She did not mention the call for hostages to be released. News24 notes that the resolution was put forward by the council's non-permanent members, after ‘unusual scenes’ in its meeting chamber, fronted by Mozambique's ambassador Pero Afonso. After what appeared to be failed behind-the-scenes negotiations, Russia sought to formally alter the text of the resolution to call for a ‘permanent’ rather than ‘lasting’ ceasefire. ‘We all received instructions for a vote on the text that contained the word 'permanent' and anything else could be seen as permission for Israel to continue its attacks,’ said Russian ambassador Vassily Nebenzia. That effort failed, but the resolution succeeded – to rare applause. Other than the US abstention, all other members voted in favour.
Meanwhile, the leader of the SA parliamentary delegation, Sylvia Lucas, last week addressed the 148th Assembly of the Inter-Parliamentary Union (IPU), advocating for the inclusion of its critical motion as an emergency item. The motion's aim was to address the pressing humanitarian crisis in Gaza and underscore the importance of international action in response to the situation. Lucas highlighted the dire circumstances in Gaza, emphasising the need for immediate and comprehensive international attention. The SA parliamentary proposal, entitled ‘Raising awareness of the International Court of Justice provisional measures for Israel in relation to Palestinians in Gaza, and of the need for urgent action on the humanitarian crisis in Gaza,’ called for urgent measures by international Parliaments. The measures included raising global awareness, facilitating the release of hostages, providing humanitarian aid, preventing violations of international law, dialogue and negotiations, and supporting the two-state solution. Lucas underscored the crucial role of the ICJ's judgment and provisional measures for Israel in providing a legal and diplomatic framework for resolving the conflict and its humanitarian fallout. The SA Parliament's proposed motion did not secure the necessary two-thirds majority, falling short by just 12 votes with a total of 904 out of the required 916.
Earlier, Pandor said the International Criminal Court (ICC) should have already issued a warrant of arrest for Israeli Prime Minister Benjamin Nentanyahu for war crimes committed against Palestinians in Gaza. In an interview with British-American broadcaster Mehdi Hasan, Pandor emphasised that the ICC must take action, just as they did with Russian President Vladimir Putin and others. As the death toll in Gaza continues to climb and starvation becomes a daily reality for Palestinians in the besieged enclave, SA has gained a growing chorus of supporters across the globe for its efforts to hold Israel to account. ‘We had made a submission to the ICC, we’ve not heard anything for months. I believe that the ICC needs to make a decision as to whether in terms of war crimes are they being committed. It’s not my decision,’ she said. The Citizen reports that Pandor said SA had to bring a case against Israel at the ICJ. ‘It’s the only country that has a similar experience to the Palestinian people and that has been firmly attached to the struggle for freedom and human rights,’ she said. SA approached the World Court seeking several orders, including for Israel to immediately suspend its Gaza offensive; to stop forced displacement; to enable humanitarian access to thousands of displaced Palestinians; and to preserve evidence. In its scathing judgment, the ICJ ordered Israel to take ‘all measures within its power’ to prevent acts of genocide in Gaza.
