Has Israel complied with ICJ measures in its war on Gaza?

In the case brought forth by South Africa, Israel has been told to take actionable measures to avoid genocide.

Has Israel complied with ICJ measures in its war on Gaza?

Lawyers defending Israeli during hearings at the ICJ in January. (Credit: Remko de Waal/AFP)

In the next few days, Israel will be called to account by the International Court of Justice (ICJ). On Jan. 26, the first hearings in the genocide case South Africa brought against Israel came to an end. The Hague said it is plausible that Israel is committing genocide in Gaza, but did not order Israel to halt the fighting.

“The State of Israel must take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip,” said Joan Donoghue, then president of the Court.

Six precautionary measures were set out by the ICJ. One such measure dictates that the Israeli army must not commit any act intended to cause “serious bodily or mental harm” to Palestinians.

This order is significant considering Netanyahu’s cabinet stated its determination to carry out a major offensive on Rafah, where more than half of the enclave’s inhabitants have taken refuge, raising the threat of their forced displacement.

“Although the Court’s measures were formulated in general terms, in the sense that they simply repeated the main clauses of the Genocide Convention, it is nonetheless clear that Israel is obliged to stop killing civilians and creating intolerable living conditions for them. Yet the Hebrew state has made no serious attempt to implement these measures,” said Martin Shaw, a sociologist of war and genocide at the Institut Barcelona d'Estudis Internacionals (IBEI).

The scale of human and material damage that continued after the ICJ’s measures, which are binding on Israel as a member state, seem to support this argument.

On Jan. 26, the number of Palestinian casualties in Gaza surpassed 26,000, and by Feb. 19, it exceeded 29,000, two-thirds of which were women and children, according to the enclave’s Health Ministry. The death toll indicates that Israel has not done everything in its power to “ensure, with immediate effect, that its military does not commit any murders of members of the group,” as ordered in the first provisional measure.

In defiance of the Court

While the Court also prohibits any “deliberate infliction on the group conditions of life calculated to bring about its physical destruction in whole or in part,” it is difficult to assess the material damage caused since then, as most civilian infrastructure had already been damaged or destroyed before Jan. 26.

According to satellite data coupled with reports from the World Health Organization (WHO), all the hospitals in the north of the Gaza Strip were no longer fully functioning at the end of December, as military activities were concentrated in this area at the start of the war.

As for the south of the enclave, the WHO counted on Jan. 24 seven partially functioning hospitals out of 12 in the region. As of mid-February, only five hospitals continue to function. The most recent to turn off its lights is Nasser Hospital in Khan Younis, the second largest hospital in Gaza. It was put completely out of service on Sunday.

In early February, Israeli soldiers broke into the hospital based on intel that hostages were being held and that Hamas fighters were hiding there. This operation is reminiscent of the attack on al-Shifa Hospital in November, which the Israeli army claimed to be a military base for Hamas fighters.

Despite the violence of the assault, it is difficult to know whether it constitutes sufficient evidence in the eyes of ICJ judges to declare that Israel has not complied with the provisional measures.

Indeed, civilian infrastructure becomes a military target when it is used by the enemy to achieve military objectives, an argument put forward by Israel and denied by Hamas.

The belligerent must, however, take all necessary measures to evacuate civilians and limit collateral damage under the principle of proportionality. This point could constitute a violation of international law, or even of the Genocide Convention: The assault took place after a week-long siege, during which the hospital, surrounded by tanks, was deprived of food, fuel and medical supplies.

While the army ordered the medical staff, patients and civilians who had taken refuge in the compound to evacuate, it reportedly fired on dozens of civilians who tried to escape, according to testimonies relayed on social media and in the international media.

Seven patients died during the raid, as oxygen cut off because there was no electricity, according to the Gaza authorities. The WHO said on Sunday that it had been unable to enter the hospital to deliver fuel, as the army was preventing access due to the ongoing military operation.

“The attack on a hospital can constitute a war crime, a crime against humanity and genocide. It is an assessment made post facto in the light of all the circumstances, the speeches and the context,” said Johann Soufi, a lawyer and expert on international law.

Blocking humanitarian aid

With regard to the delivery of humanitarian aid more specifically, another measure, adopted by 16 votes to one, is more detailed: “Israel must take immediate and 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 order states.

According to Martin Shaw, the conclusion is clear: “Israel’s attempts to sabotage UNERWA’s humanitarian aid operations, in which it has involved the US and other Western governments, constitute a deliberate attempt to exacerbate the disastrous situation for civilians in Gaza, here again in defiance of the Court.”

According to Israeli intelligence, certain employees of UNRWA, the main humanitarian aid organization in the Gaza Strip, were involved in the Oct.7 Hamas attacks. After these allegations, UNRWA announced the dismissal of the suspects and the opening of an investigation. Following this announcement, 17 countries and the EU suspended their funding to the agency, putting it at risk of not being able to function after this month.

“Now the world also knows that UNRWA is a central part of the Nazi Hamas war machine. There is a consensus inside the cabinet of the need to prevent the aid from reaching Hamas and I will use my authority to make sure this is the case,” said Israeli Finance Minister Bezalel Smotrich on Feb. 13, after issuing an order to halt 1,049 foodstuffs shipments at the port of Ashdod, some 30 kilometers north of Gaza.

Facing the risk of famine and a wider health crisis in Gaza, pressure is mounting on Israel, including from the US, to allow humanitarian convoys to get through. However, with just a few days before the deadline for submitting its report to the Court, Israel is showing signs of opening up.

According to information revealed by the London-based Saudi newspaper al-Majalla, work began on Feb. 11 to reopen the Karni crossing, which has been closed for 12 years, and to allow aid to be delivered to northern Gaza and Gaza City, which are difficult to access.

The Israeli army has reportedly asked logistics companies to rush to work on this task. But the timing of the move may have more to do with the planned offensive on Rafah, as work at Karni crossing began a few days after the White House announced it would not support an Israeli operation that would discount the fate of the 1.3 million civilians who have taken refuge there. This message seems to have been heard by the Israelis: the border crossing, open intermittently, allowed trucks loaded with 15,600 tons of food and medical aid to pass through on Monday morning.

Concerns over the Rafah operation pushed South Africa to file another request to the ICJ on Saturday. Pretoria asked The Hague to take “urgent measures" against the Israeli military action. This request was rejected by the ICJ which deemed unnecessary the indication of additional provisional measures.

Genocidal intent?

This has led some to criticize the effectiveness of the Hague’s action, especially as the ICJ has no binding power: “The Court does not have the power to impose consequences on Israel, but it could draw the attention of the Security Council to Israel’s failure to comply with these measures,” said Shaw.

In addition to compliance with the measures, the vague nature of the obligations casts doubt on the legal characterization that will be adopted by the ICJ. For example, many of the authenticated videos and photographs could constitute a violation of international law, under the Geneva Convention, which prohibits degrading prisoners of war and violating the dignity of both soldiers and civilians.

Although most of the images were captured before the Court’s decision, some were posted on social media after the decision. For example, a much-shared photo taken in December, showing a virtually naked man with his hands tied behind his back facing an Israeli soldier in a primary school in Gaza City’s Rimal area, could be used as evidence.

It remains to be seen whether this counts towards proof of genocidal intent. “The humiliation of Palestinians may constitute a war crime, but it does not necessarily indicate genocide. However, in the current context, where there are many other reasons to believe that genocide is being committed, these acts of humiliation can be seen as confirmation,” said Shaw.

In reaction to the outrage caused by these videos, the Israeli army said at the beginning of February that it intended to take significant measures against the soldiers who filmed such violence, without specifying what these measures would be. It did, however, add that it terminated the service of one of its reservists for these reasons.

“In its report, Israel must specify the steps taken to punish the perpetrators of these crimes in order to show the Court that it is complying with the order to prevent and punish potentially genocidal acts,” said Soufi.

“Although the provisional measures are aimed solely at Israel, their effects are nevertheless binding on the entire international community, which must draw the consequences from the judicial finding of a risk of genocide. The obligation to act to prevent or stop genocide is all the stronger for countries that are allies of the state accused of genocide,” said the lawyer.

Shortly after the Court orders recognized the genocidal risk of Israel’s action in Gaza, several countries limited or stopped their military support for Tel Aviv, including Belgium, the Netherlands, Japan, Italy and Spain. The US, Israel’s main supporter, does not seem to want to change direction and is currently preparing a new arms shipment.

In another legal proceeding related to the legal consequences of the Israeli occupation on the West Bank and Gaza, which some have decried as the main obstacle to a peace process, hearings of which began on Monday at the ICJ, Washington is expected to just deliver an opinion simply supporting the idea that “a just and lasting peace should be negotiated” based on the Oslo Accords.

This article was originally published in French in L'Orient-Le Jour. Translation by Joelle El Khoury.

In the next few days, Israel will be called to account by the International Court of Justice (ICJ). On Jan. 26, the first hearings in the genocide case South Africa brought against Israel came to an end. The Hague said it is plausible that Israel is committing genocide in Gaza, but did not order Israel to halt the fighting.“The State of Israel must take all measures within its power to prevent...