The International Court of Justice delivers its ruling in the case of South Africa v. Israel in The Hague in January. UN Photo/ICJ-CIJ/Frank van Beek.

The International Court of Justice (ICJ) in The Hague has ordered Israel to take action to address famine in Gaza.

In its new order, issued in response to a request from South Africa, the ICJ said that Palestinians in Gaza were no longer facing only a risk of famine, “but that famine is setting in”.

The court said that Israel should, without delay, take all necessary and effective measures to ensure the unhindered provision of urgently needed basic services and humanitarian assistance.

Israel should increase the capacity and number of land crossing points and maintain them open for as long as necessary, the ICJ added.

Since January 26, 2024, the court said, the catastrophic living conditions of the Palestinians in the Gaza Strip had deteriorated further, “in particular in view of the prolonged and widespread deprivation of food and other basic necessities to which the Palestinians in the Gaza Strip have been subjected”.

In its new order, the ICJ also said that Israel should 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”.

On March 6, South Africa requested additional provisional measures and/or the modification of the ICJ’s order of January 26, 2024, “in order urgently to ensure the safety and security of 2.3 million Palestinians in Gaza, including over a million children”.

The ICJ said it was delivering its new order based on the change in the situation in Gaza, and Israel’s observations on March 15, 2024, about South Africa’s March 6 request.

The court said that, in its view, the provisional measures indicated in the January 26 order did not fully address the consequences arising from the changes in the situation and this justified the modification of these measures.

By 14 votes to two, the ICJ reaffirmed the provisional measures indicated in its January 26 order.

The court’s vice-president, Justice Julia Sebutinde from Uganda, who had voted against all the provisional measures South Africa sought against Israel in its initial application, voted against the reaffirmation of the measures along with the ad hoc judge for Israel, Aharon Barak.

In its new order, the ICJ stated that 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 Palestinians in Gaza, in particular the spread of famine and starvation” 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”.

This, the court said, included the provision of food, water, electricity, fuel, shelter, and clothing as well as medical supplies and medical care to Palestinians throughout Gaza.

All 16 judges voted in favour of this ruling.

Fifteen of the ICJ judges voted in favour of the order that Israel should 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”.

Aharon Barak was the only judge who voted against this ruling.

Barak also voted against a third ruling: “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”.

In its January 26 order, the ICJ said that, in its view, at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appeared to be capable of falling within the provisions of the Genocide Convention.

In its March 6 request, South Africa urged the ICJ to indicate additional provisional measures and/or modify its earlier order without holding a hearing, in light of the “extreme urgency of the situation”.

It said it was “compelled to return to the Court in light of the new facts and changes in the situation in Gaza – particularly the situation of widespread starvation – brought about by the continuing egregious breaches of the Convention on the Prevention and Punishment of the Crime of Genocide … by the State of Israel … and its ongoing manifest violations of the provisional measures indicated by this Court on 26 January 2024”.

In its March 15 written observations, Israel stated that South Africa’s March 6 request had a “bellicose and offensive tone”.

Israel said: “The accusations made therein are outrageous and categorically denied. Much like South Africa’s Application that instituted the present proceedings, they are wholly unfounded in fact and law, morally repugnant, and represent an abuse both of the Genocide Convention and of the Court itself.”

South Africa had a “belligerent and disingenuous approach”, Israel said.

Israel noted that it had, on February 26, 2024, submitted to the ICJ a report pursuant to the court’s January 26 order.

“At the time of filing the present request on 6 March 2024, South Africa could hardly have had sufficient time to consider seriously Israel’s Report and its Annexes,” Israel said.

On March 25, the United Nations Security Council passed a resolution demanding an immediate ceasefire in Gaza for the month of Ramadan that would be respected by all parties, “leading to a lasting sustainable ceasefire”.

Fourteen Security Council members voted in favour of the resolution and the United States abstained. There were no votes against.

The council also demanded “the immediate and unconditional release of all hostages, as well as ensuring humanitarian access to address their medical and other humanitarian needs”.

It further demanded that the parties comply with their obligations under international law in relation to all persons they detain.

The council emphasised “the urgent need to expand the flow of humanitarian assistance to and reinforce the protection of civilians in the entire Gaza Strip” and reiterated its demand for the lifting of all barriers to the provision of humanitarian assistance at scale.

It expressed “deep concern” about what it described as “the catastrophic humanitarian situation in the Gaza Strip”.

The office of Israel’s Prime Minister, Benjamin Netanyahu, said the US had “abandoned” its policy in the UN just a few days after supporting a Security Council resolution that linked a call for a ceasefire to the release of hostages.

“Regrettably, the United States did not veto the new resolution, which calls for a ceasefire that is not contingent on the release of hostages,” Netanyahu’s office said.

“This constitutes a clear departure from the consistent US position in the Security Council since the beginning of the war.”

Netanyahu’s office added: “Today’s resolution gives Hamas hope that international pressure will force Israel to accept a ceasefire without the release of our hostages, thus harming both the war effort and the effort to release the hostages.”

It said that, in light of the US’s latest decision, Netanyahu had decided to cancel an Israeli delegation’s planned visit to the the country.

The White House press secretary, Karine Jean-Pierre, has since confirmed reports that Netanyahu later agreed to reschedule the visit.

Ireland to intervene in South Africa’s case against Israel

On March 27, Ireland’s Minister for Foreign Affairs and Defence Minister, Micheál Martin, who is also the country’s Tánaiste (deputy head of government), announced that Ireland would intervene in the case initiated by South Africa against Israel at the ICJ.

Martin said he had directed officials to commence work on a Declaration of Intervention.

“The intention is that the Declaration of Intervention, which will require government approval, will be filed once South Africa has filed its Memorial,” Martin said.

This was likely to take several months, he added, and Ireland would liaise closely with a number of partners who had also confirmed their intention to intervene.

“It is for the Court to determine whether genocide is being committed,” Martin said. “But I want to be clear in reiterating what I have said many times in the last few months; what we saw on 7 October in Israel, and what we are seeing 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.”

The list, Martin said, went on and it had to stop. “The view of the international community is clear. Enough is enough. The UN Security Council has demanded an immediate ceasefire, the unconditional release of hostages and the lifting of all barriers to the provision of humanitarian assistance at scale. The European Council has echoed this call,” he said.

Nicaragua institutes proceedings against Germany

There will be public hearings at the ICJ on April 8 and 9 in proceedings instituted by Nicaragua against Germany on March 1, 2024.

Nicaragua filed an application instituting proceedings against Germany concerning alleged violations by Germany of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, the Geneva Conventions of 1949 and their Additional Protocols, “intransgressible principles of international humanitarian law”, and other norms of general international law in relation to the Occupied Palestinian Territory, particularly the Gaza Strip.

In its application Nicaragua asks the ICJ to indicate provisional measures as a matter of extreme urgency, pending the court’s determination on the merits of the case, with respect to Germany’s “participation in the ongoing plausible genocide and serious breaches of international humanitarian law and other peremptory norms of general international law occurring in the Gaza Strip”.

Nicaragua argues that, by providing political, financial and military support to Israel and by defunding the United Nations Relief and Works Agency for Palestine Refugees in the Near East, “Germany is facilitating the commission of genocide and, in any case has failed in its obligation to do everything possible to prevent the commission of genocide”.

UPDATE:

Colombia files a declaration of intervention

On April 5, Colombia filed a declaration of intervention in South Africa’s case against Israel.

In its declaration, Colombia notes that the Genocide Convention is “a cardinal instrument of international law” and contends that the case “raises vital issues concerning the interpretation and application of several provisions of the Genocide Convention that reflect both erga omnes obligations, owed to the international community as a whole, and erga omnes partes obligations, owed to all States parties to the treaty, in relation to not only the prohibition to commit genocide but also the obligation to prevent genocide”.

Colombia states that it is submitting its declaration “in the genuine belief that the States parties to the Genocide Convention should do everything in their power to contribute to ensure the prevention, suppression and punishment of genocide and therefore, to assist the Court in finding the responsibility of any State Party to the Convention, for its failure to comply with the obligations contained therein, especially in the context of such a dramatic situation as that unfolding in the Gaza Strip”.

In its conclusion, Colombia says it respectfully calls upon the ICJ to execute its mandate “with a view to ensuring the safety and, indeed, the very existence of the Palestinian people, a distinct group protected under the Genocide Convention, bearing in mind the real and imminent risk of irreparable prejudice to its rights, as recently recognized by the Court itself”.

South Africa and Israel have been invited to furnish written observations on Colombia’s declaration.

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