Photo: Destruction of infrastructure in Gaza, Al Jazeera
On 26th January 2024, the International Court of Justice (ICJ) issued an interim order in response to South Africa’s application, lodged on 29th December 2023, alleging violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) in relation to Palestinians in the Gaza Strip.
The order handed down contained six provisional measures. The first of these measures stated:
The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article 2 of this Convention, in particular:
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- killing members of the group;
- causing serious bodily or mental harm to members of the group;
- deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
- imposing measures intended to prevent births within the group.1
The second provisional measure stated that Israel shall ensure with immediate effect that its military does not commit any acts described in the first measure above.
During the initial hearing, the Israeli delegation dismissed any accusation of genocide in the context of the conflict in Gaza and called for the ICJ to throw South Africa’s application out. The ICJ rejected this call and instead found that:
(A)t least some of the (Palestinian) rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention.2
At stated by the ICJ, its interim order has binding effect. However since 26th January 2024, Israel has shown utter contempt for the ICJ’s ruling. Indeed reports indicate that Israel’s war on Gaza has actually intensified.
According to the United Nations, since the start of the war on 7th October 2023, about 100,000 people in Gaza have been killed, injured or are missing. At least 85% of the population totalling 2.3 million have been displaced. The majority of the victims are women and children.
In addition, figures relating to the impact on infrastructure include:
- at least 70% of all homes have been damaged or destroyed;
- educational facilities have been targeted resulting in 393 schools having been partially or completely destroyed;
- every single university has been raised;
- 292 places of worship, churches and mosques alike, have been damaged;
- 11 bakeries have been destroyed;
- only 5 of the territory’s 35 hospitals remain open but can only provide treatment in the form of basic first aid.3
Given the ever increasing carnage and targeting of infrastructure throughout the besieged territory, it is no exaggeration to say that Israel’s war on Gaza has become one of the most destructive military campaigns in modern history.
Last week, Israel’s Prime Minister Benjamin Netanyahu confirmed his government’s plan to expand military operations into Rafah. This plan for a full-scale assault on Rafah has been condemned by the UN officials and numerous member states.
Prior to the war, Rafah’s population was 171,889. However, as a result of Israeli Defence Forces’ massive bombardment and ground assaults in Gaza City and Khan Yunis, about 1.4 million displaced Palestinians are now believed to be sheltering in and around Rafah.
In the light of these catastrophic circumstances, South Africa called upon the ICJ to issue additional measures to protect Palestinian lives in Gaza. South Africa’s letter, dated 12th February 2024, can be read here.
Following consideration of South Africa’s request and Israel’s observations received 15th February 2024, the ICJ handed down the following decision:
The Court notes that the most recent developments in the Gaza Strip, and in Rafah in particular, ‘would exponentially increase what is already a humanitarian nightmare with untold regional consequences’, as stated by the United Nations Secretary-General (Remarks to the General Assembly on priorities for 2024 (7 Feb 2024)).
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.
The Court emphasizes that the State of Israel remains bound to fully comply with its obligations under the Genocide Convention and with the said Order, including by ensuring the safety and security of the Palestinians in the Gaza Strip.4
It is obvious that Netanyahu government has no intention of complying with its obligations under the Genocide Convention.5
The United Nations Secretary-General is right to emphasis the extraordinary dangers associated with recent developments in the besieged enclave, and in Rafah in particular.
Under the Genocide Convention, contracting parties can call upon the United Nations “to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in
article III.”6 Supporting South Africa and taking every action possible to require Israel to comply with ICJ’s interim order would also be entirely consistent with Australia’s obligations under the Genocide Convention. Other actions should include the immediate cessation of Australian defence exports to Israel and the reversal of its inhumane decision to suspend funding to the UN agency for Palestinian refugees (UNRWA).7
Also, as a willing ally of the US, the Albanese government should impress upon the Biden administration to end its complicity with the Netanyahu government, immediately suspend its military aid to the regime, and uphold international and humanitarian law.8
The shameful role of the US in the war on Gaza warrants a comprehensive official review of the US-Australia alliance, AUKUS and other security and military arrangements involving the US. Such a review should also investigate the advantages of Australia having independent foreign and defence policies to protect its sovereignty. Unfortunately, the political commitments of the Albanese government and the ALP leadership would currently prevent such a necessary review taking place.
References
1. ICJ’s summary of its interim ruling containing six provisional measures issued on 26th January 2024.
2. Ibid.
3. Al Jazeera’s report ‘Is Israel in breach of the ICJ’s order?’, Feb 13, 2024.
4. ICJ’s decision relating to South Africa’s urgent request, dated 13th February 2024, for further provisional measures to be issued in order to protect Palestinian lives in Gaza.
5. Amnesty International UK, ‘Israel/OPT: fresh evidence of probable war crimes in Israeli attacks on Rafah’, Press release, Feb 12, 2024.
6. Genocide Convention, article VIII. Also refer to article V: “The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.”
7. Amnesty International Australia, ‘Australia: Stop Sending Arms to Israel‘ and ‘States Must Reverse Cruel Decision to Withdraw UNRWA Funding’. Amnesty International’s petition which calls on Australia to stop approving permits for defence exports to Israel can be accessed here. The petition is still open. As of 22nd February 2024, 52,896 signatures have been received. The goal is to reach 60,000.
8. Michael Schaeffer Omer-Man, ‘Why is the US still sending an endless supply of arms to Israel without conditions?’, The Guardian, Dec 8, 2023.