Israel Kills 174 in Gaza Since ICJ Order to Stop Killing and Injuring Palestinians
(Washington D.C., January 27, 2024) – The Biden Administration should immediately demand a ceasefire in Gaza and suspend all U.S. military assistance to Israel to comply with the January 26 ruling by the International Court of Justice (ICJ), DAWN said today.
The Court's provisional orders, based on a finding of plausible evidence that Israel is committing a genocide in Gaza, included demanding that Israel take all measures to prevent genocidal acts, specifically noting that this includes a prohibition on killing or injuring Palestinians, preventing and punishing the direct and public incitement to genocide; and taking immediate and effective steps to ensure the provision of humanitarian assistance to civilians in Gaza, citing the insufficiency of Israeli efforts to date.
"Complying with the Court's order that Israel stop the killing of Palestinians can only be read to require the U.S. to end its military support for Israel, which has played a critical role in aiding and abetting Israel's genocidal campaign in Gaza," said Sarah Leah Whitson, DAWN's executive director. "The U.S. has been complicit in every genocidal action that Israel has taken in Gaza, continuing to provide it with military equipment and political protection even after months of horrific evidence of its crimes in Gaza. Suspending military aid may at least protect the U.S. from itself being found liable for complicity in Israel's genocide."
The ICJ's order of provisional measures in the case of South Africa v. Israel was based on its determination that South africa had presented plausible evidence to support a finding that Israel is committing a genocide against Palestinians. It specifically found that the acts that South Africa has accused Israel of could constitute genocide; that it is plausible that Israel is violating Palestinians' right to be protected from genocide; and that there is a "real and imminent risk" that such violations could plausibly occur as the case continues to be adjudicated.
Paragraph 54 of the Court's ruling details the plausible scenario that Israel is engaged in actions that could be considered genocide against Palestinians. This includes killing and harming them with the intent to destroy, in whole or in part, the group as such. Article 41 of the ICJ Statute authorizes the court to order provisional measures if it finds there is an urgent situation where irreparable prejudice or consequences will result to the at-risk group, in this case, the Palestinians, while the case is pending. The court noted the extremely vulnerable situation of the Palestinian population in Gaza, where Israeli bombardment and embargo on fuel, water, and medicine has caused over 26,000 deaths; 66,000 injuries; the displacement of 85% of the population of Gaza; acute hunger for 93% of the population; and the vast demolition of homes making large parts of Gaza uninhabitable.
Accordingly, the Court in Paragraph 78 ordered Israel to ensure its military refrains from acts that could lead to genocide. This includes prohibitions against killing, causing serious harm, deliberately inflicting on Palestinians conditions of life calculated to bring about their physical destruction in whole or in part, and imposing measures to prevent births within the Palestinian group.
The Court also ordered Israel to 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 Gaza. Additionally, it mandated effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts of genocide. It also reminded all parties of their obligations under international humanitarian law, and called for the release of hostages.
The Court has mandated that Israel must submit a report within 30 days, detailing the measures it has taken to comply with its orders. The ICJ's review of Israel's compliance will be a significant factor in the ongoing litigation and could influence the Court's final judgment on whether Israel is committing genocide. Despite the court order, the IDF reportedly killed 174 Palestinians in Gaza on January 26, and intensified its military operations in the territory.
The international community, particularly the United Nations Security Council, is expected to play a pivotal role in ensuring the implementation of these orders. If Israel fails to abide by the court's orders, it will likely harm its defense in the ongoing litigation to confirm that Israel is committing genocide. Because the ICJ has no enforcement powers, the United Nations Security Council (UNSC) will need to issue a resolution ordering its implementation. The UNSC should now have stronger backing to push for a new ceasefire resolution, so long as the U.S. does not use its veto power to block it. In addition, because the ICJ only reviews the legal responsibility of states, any determination of the responsibility of individuals responsible for genocide would fall to the International Criminal Court, which is currently investigating allegations of international crimes committed by both Israel and Hamas.
"The Court's order for Israel to cease actions that constitute genocide, specifically the killing and harming of Palestinians, effectively functions as a call for a ceasefire, but with the killing of another 174 Palestinians yesterday, Israel is clearly ignoring the court's order" said Raed Jarrar, DAWN's advocacy director. "By mandating a halt to the killing and injuring Palestinians, the order aligns with the fundamental aspects of a ceasefire – the cessation of hostilities and the protection of civilian lives."
DAWN has called for an immediate ceasefire in Gaza since October 9, 2023, and urged the Biden Administration to call for a ceasefire on November 21, 2023. Other human rights groups, including Palestinian groups such as Al-Haq, Al-Mizan, and the Palestinian Centre for Human Rights, have also concluded that ICJ's ruling effectively acts as a de facto order for the cessation of hostilities and a practical equivalent to a ceasefire.
Article III of the Genocide Convention, which includes "complicity in genocide" among punishable acts, implicitly mandates state parties, such as the United States, to refrain from actions that might constitute aiding and abetting genocide. Practically, this encompasses the cessation of arms supplies to Israel because these arms could be used in actions amounting to genocide. Paragraph 41 of the ICJ ruling in this case also recalls that under Article I of the Genocide Convention, all state parties have committed "to prevent and to punish" the crime of genocide. This underscores a binding legal obligation for the U.S. to take affirmative measures against potential genocidal actions.
"Given the ICJ's ruling, the US faces a significant challenge to its blank check policy, especially its military support, for Israel," said Adam Shapiro, DAWN's advocacy director for Israel and Palestine. "Continued military aid to Israel in light of these findings will be viewed as contradictory to the U.S.'s commitment to prevent genocide and uphold the rule of law."
U.S. policies also require the Biden Administration to reevaluate arms transfers to Israel in light of the ICJ's finding that there is a plausible case for genocide by Israel. President Biden's Conventional Arms Transfer Policy restricts arms transfers "likely to exacerbate risks of genocide." This policy emphasizes the importance of responsible arms transfer and is designed to prevent arms transfers that risk contributing to human rights violations or international humanitarian law. The ICJ's ruling finding the claims of potential genocide by Israel as plausible directly implicates the policy mandate to avoid exacerbating the risks of genocide. According to the policy, the administration will not authorize any arms transfer if it is "more likely than not" that the arms will be used to commit, facilitate, or aggravate risks such as genocide, crimes against humanity, or grave breaches of international humanitarian law.
"The January 26 ruling by ICJ makes clear that there is a clear and plausible genocide in Gaza right now, which should trigger application of Biden's own arms transfer policy to bar further weapons to Israel," said Jarrar. "American taxpayers should not bear the burden of being further implicated in Israel's genocidal conduct."
The United States has long championed enforcement of other findings of plausible genocide and provisional orders by the ICJ, most recently concerning Myanmar and Russia. In the case of The Gambia v. Myanmar, which centers on allegations of genocide against the Rohingya population, the United States formally recognized that the Myanmar military committed genocide against the Rohingya, provided funding for the UN's Independent Investigative Mechanism for Myanmar with almost $1 million, and sanctioned Burmese officials for their role in the atrocities.
In the case of Ukraine v. Russia, the United States intervened to argue for a broad interpretation of jurisdiction under the Genocide Convention, highlighting the global responsibility to ensure its correct application. The U.S. submission emphasized that the Genocide Convention does not permit a member state to commit aggression under the pretext of preventing or punishing genocide.
"The U.S. should signal its support for the enforcement of the ICJ's provisional orders with the same robust and committed policies and actions that it has shown in the cases against Russia and Myanmar," said Whitson. "The whole world is watching how the U.S. responds to this historic court decision."
DAWN urges the U.S. government to demonstrate a consistent and principled commitment to the international rules-based order by abiding by and supporting the enforcement of the ICJ's orders in the genocide case in Israel and to reconsider its continued military and political support for Israel. Failure to act will have far-reaching consequences for global perceptions about the U.S.'s commitment to justice and the rule of law. The United States should also support the ICC's ongoing investigation into crimes in Palestine and its efforts to hold individual perpetrators accountable.
