Tank driving with dust in Al-Shati refugee camp, Gaza, aerial Drone view over North Gaza in the war with Israel. Gaza-March, 20,2024 (Shutterstock)

By Marjorie Cohn / Truthout

On March 25, the UN Security Council adopted Resolution 2728, which “demands” an immediate ceasefire in Gaza. That same day, Francesca Albanese, the Special Rapporteur on the situation of human rights in the Palestinian territories, filed a 25-page report in the UN Human Rights Council, titled “Anatomy of a Genocide.” Albanese found “reasonable grounds” to believe that Israel is committing genocide in Gaza.

Three days later, on March 28, the International Court of Justice (ICJ, or World Court) ordered Israel to ensure the “unhindered provision” of humanitarian aid to enter Gaza, including by opening more land crossings, and to ensure that its military doesn’t commit genocidal acts, including by obstructing urgently needed humanitarian assistance.

Seven of the 16 judges on the ICJ would also have ordered an immediate ceasefire, which South Africa sought in its genocide case against Israel. But the votes fell short of the majority needed to order that provisional measure.

The New Provisional Measures

The ICJ’s order of provisional measures supplements the ones it ordered on January 26, which required Israel to (1) prevent all genocidal acts against Gazans, (2) ensure that its military doesn’t commit genocidal acts, (3) punish incitement of genocide, and (4) immediately enable basic services and humanitarian aid. In its new order, the ICJ quoted South Africa’s rationale for its March 6 request to the court for additional measures, which was prompted by the:

horrific deaths from starvation of Palestinian children, including babies, brought about by Israel’s deliberate acts and omissions . . . including Israel’s concerted attempts since 26 January 2024 to ensure the defunding of [the United Nations Relief and Works Agency (UNRWA)] and Israel’s attacks on starving Palestinians seeking to access what extremely limited humanitarian assistance Israel permits into Northern Gaza, in particular.

The court also cited the further deterioration of catastrophic living conditions, particularly “the prolonged and widespread deprivation of food and other basic necessities to which the Palestinians in the Gaza Strip have been subjected.”

In addition, the court noted the March 18 report of the Integrated Food Security Phase Classification Global Initiative, which found that since December 2023, “the conditions necessary to prevent Famine have not been met” and “Famine is imminent.” The court also quoted the March 15 report of the United Nations Children’s Fund that found 31 percent of children under 2 years old in the Northern Gaza Strip were suffering from “acute malnutrition,” which was “a staggering escalation from 15.6 percent in January.”

Food production and agriculture have been decimated by military operations and extensive restrictions on entry and delivery of essential goods, the court noted, quoting a February 27 briefing to the Security Council.

There is no substitute for land routes and entry points from Israel to Gaza for effective delivery of food, water, humanitarian and medical assistance, the court concluded after citing statements by UN representatives. And UN representatives and various organizations have declared that the “catastrophic humanitarian situation” can only be addressed if military operations in Gaza are suspended.

The court noted the adoption of Security Council Resolution 2728, which says, “Palestinians in Gaza are enduring horrifying levels of hunger and suffering. This is the highest number of people facing catastrophic hunger ever recorded by the Integrated Food Security Classification system anywhere, anytime. This is an entirely man-made disaster and the report makes clear that it can be halted.”

The ICJ concluded there is a further urgent risk of real, imminent and irreparable prejudice that will occur before the court renders its final decision on the merits of the case. Thus, the court ordered these two provisional measures on March 28:

  1. Israel shall “[t]ake 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.” [This order was unanimous].
  2. Israel shall “[e]nsure 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.” [The Israeli judge dissented from this order].

The court refused to order three additional provisional measures that South Africa requested on March 6. They would have required that Israel (1) immediately suspend its military operations in Gaza, (2) lift its blockade of Gaza and (3) rescind all other measures that obstruct the access of Gazans to humanitarian aid and basic services.

These proposed measures, the ICJ wrote, would have “no binding force except between the parties,” that is, Israel and South Africa. Since Hamas and the states parties to the Genocide Convention are not parties in the case of South Africa v. Israel, they could not be bound by an order of the court, according to the ICJ’s ruling.

Seven ICJ Judges Would Have Ordered an Immediate Ceasefire

Seven of the judges on the ICJ, however, wrote or signed on to concurring opinions, saying that the court should have ordered an immediate cessation of military operations. They did not appear constrained by the majority’s rationale for refusing to order a ceasefire.

Judge Nawaf Salam from Lebanon noted that “Gaza has become a death zone.” He said that the new ICJ orders “can only take full effect if the ‘immediate ceasefire for the month of Ramadan’ demanded by the Security Council in its resolution 2728 (2024) . . . is duly and fully respected by all parties ‘and leads to a lasting sustainable ceasefire.’”

Judge Abdulqawi Ahmed Yusuf from Somalia wrote that the situation in Gaza “has grown much more gruesome.” He declared that “It is indeed the very right of existence of the Palestinian population of Gaza that is currently at risk of irreparable prejudice. Nothing less.” Judge Yusuf characterized the ICJ’s January 26 orders as “tantamount . . . to an injunction to bring to an end any military operations which may contribute to the commission of [genocidal] acts.” The atrocities can be ended, he added, only “through the suspension, with immediate effect, of Israeli military operations.”

Judges Xue Hanqin of China, Leonardo Nemer Caldeira Brant of Brazil, Juan Manuel Gomez Robledo of Mexico and Dire Tladi of South Africa signed a Joint Declaration stating that “we deeply regret that this measure does not directly and explicitly order Israel to suspend its military operations for the purpose of addressing the current catastrophic humanitarian situation in Gaza.” They added that “the present scale of the humanitarian crisis in Gaza and the overwhelming consensus that, without the suspension of military operations, this catastrophe will even worsen, constitute circumstances that require the Court to explicitly order a suspension of military operations.”

Judge Hilary Charlesworth from Australia wrote that the court should have explicitly ordered Israel “to suspend its military operations in the Gaza Strip,” which “is the only way to ensure that basic services and humanitarian assistance reach the Palestinian population.”

“The impact of the International Court of Justice’s order is significant,” the Republic of South Africa said in a statement. “The changing circumstances in Gaza warrant the implementation of new strategies.” But, it noted, “As a number of Judges pointed out, these responsibilities [to prevent genocide] can only be fulfilled by halting military operations in Gaza and adhering to the court’s directives. If there is non-compliance, the global community must ensure adherence when it comes to the sanctity of humanity.”

Ireland, Belgium, Nicaragua and France, as well as the State of Palestine, have indicated that they intend to intervene in South Africa’s case against Israel.

“Anatomy of a Genocide”

In her 25-page advance unedited report, “Anatomy of a Genocide,” Special Rapporteur Albanese found, “The total siege and near-constant carpet-bombing, along with draconian evacuation orders and ever-shifting ‘safe zones’, have created an unparalleled humanitarian catastrophe.”

Albanese recommended that UN member states: “Immediately implement an arms embargo on Israel, as it appears to have failed to comply with the binding measures ordered by the ICJ on 26 January 2024, as well as other economic and political measures necessary to ensure an immediate and lasting ceasefire and to restore respect for international law, including sanctions.”

Israel stated in a press release that it “utterly rejects” Albanese’s report and called it “an obscene inversion of reality.”

Meanwhile, the Biden administration has quietly authorized the delivery of billions of dollars’ worth of fighter jets and bombs to Israel. After vetoing three prior resolutions demanding a ceasefire, the U.S. abstained from resolution 2728, allowing it to pass.

Joe Biden is walking a fine line between fealty to Israel and political pressure from U.S. voters who oppose his complicity in Israel’s genocide.

Copyright Truthout. Reprinted with permission.

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Marjorie Cohn

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, the bureau of the International Association of Democratic Lawyers, and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.

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