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), Democracy for the Arab World Now (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 was committing 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 violations
of human rights 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. “Today’s
ICJ ruling 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 order 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.
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