Israel: The ICJ orders measures to prevent incitement to genocide and preserve evidence

Israel: The ICJ orders measures to prevent incitement to genocide and preserve evidence - Protection

The International Court of Justice in the Hague | Image credit: R Boed Flickr


On Friday, 26 January 2024, the International Court of Justice (ICJ) delivered its order on the provisional measures in South Africa’s case alleging Israel’s violations of the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) in the Gaza Strip. Our initial analysis follows:

ARTICLE 19 calls on Israel to immediately take steps to implement the measures ordered by the ICJ. In particular, it must investigate and hold perpetrators accountable for the numerous incendiary statements made in recent months by high ranking Israeli officials, military personnel and other influential figures calling for the destruction of Gaza and dehumanising Palestinian people. We also call on Israel to stop its severe violations of freedom of expression, including the killing of journalists and repeated internet shutdowns, which impede the preservation of evidence related to potential breaches of the Genocide Convention and other violations of international human rights and humanitarian law.

In the order, the ICJ acknowledged that the ‘catastrophic humanitarian situation in the Gaza strip is at serious risk of deteriorating before the court reaches its final judgement’. It ordered four provisional measures, which are binding on Israel: to take all measures within its power to prevent acts of genocide and ensure that its military does not commit genocidal acts; to take all measures within its power to prevent and punish the direct and public incitement to genocide; to take immediate and effective measures to allow humanitarian access; and to take effective measures to prevent the destruction and ensure the preservation of evidence that could be used in the genocide case. Within a month, Israel must also submit a report to the ICJ on the steps it is taking to uphold the order.

The ICJ finds that the requirements for the indication of provisional measures are met

As the ICJ stated explicitly, its decision was not a decision on the merits of whether Israel’s actions breached the Genocide Convention. South Africa had asked for provisional measures to be put in place while the longer legal process proceeds, a question that requires a lower standard of proof. Under the lower standard, the ICJ did find that South Africa has a plausible case (by finding that the rights under the Genocide Convention of Palestinians in the Gaza Strip to be protected from acts of genocide and related prohibited acts under the Genocide Convention are plausible). It also found that there is ‘a real and imminent risk that irreparable prejudice will be caused’ to the  rights of Palestineans in Gaza invoked by South Africa under the Genocide Convention.

The ICJ’s decision comes on the back of repeated statements by many UN experts warning that the ‘grave violations committed by Israel against Palestinians in the aftermath of 7 October, particularly in Gaza, point to a genocide in the making’.

The ICJ orders Israel to ‘prevent and punish the direct and public incitement to commit genocide’

The ICJ referred to a number of comments made by senior Israeli politicians that contained inciting and dehumanising rhetoric. Those included comments made by Israeli Defense Minister Yoav Gallant, who said that Israel is ‘fighting against human animals,’ and a statement from Israeli President Isaac Herzog, who claimed that Palestinians are collectively responsible for the Hamas attack on 7 October, saying: ‘it’s the entire nation out there that is responsible (…) They could have risen up, they could have fought against that evil regime’.

The ICJ further referred to the statement madetwo days before the start of the hearings by Israeli Attorney General Gali Baharav-Miara, in which she acknowledged that comments calling for intentional harms to civilians could amount to crimes, including incitement, and that Israeli law enforcement was currently examining several such cases. The Court stated that although such steps are to be encouraged, they are not sufficient to remove the risk of irreparable prejudice to the rights of Palestinians in Gaza under the Genocide Convention.

The examples that the ICJ referred to in its order are just the tip of the iceberg. The Law for Palestine project, a UK based human rights organisation, has so far documented over 500 statements made by Israeli officials which could potentially amount to incitement, prohibited under international law. In December, before South Africa filed its case in front of the ICJ, a group of prominent Israelis, including academics, lawyers, diplomats, journalists and activists wrote to the Israeli attorney general and state prosecutors expressing dismay at the lack of response and urging them to take immediate action to stop ‘explicit calls to commit atrocious crimes’.

ARTICLE 19 is deeply concerned by Israel’s failure to adequately respond to such dangerous rhetoric. We urge Israel to abide by its obligation to prevent, investigate and punish all cases that may amount to public and direct incitement of genocide under the Genocide Convention as well as advocacy of discriminatory hatred constituting incitement to hostility, discrimination or violence under Article 20 (2) of the International Covenant on Civil and Political Rights.

Israel must take effective measures to prevent any destruction of evidence

Israel has further been ordered to take effective measures to prevent any destruction of evidence that could be used in the genocide case. ARTICLE 19 must highlight once more how Israel’s severe freedom of expression violations are impeding the documentation of violations of international human rights, humanitarian and criminal law. We repeat: Israel must immediately take steps to protect journalists already operating in Gaza under the most extreme of circumstances, allow access to international journalists, allow them to operate independently, and abstain from imposing any further internet shutdowns.

ARTICLE 19 further reiterates its urgent call to the International Criminal Court and the Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem and Israel to investigate these and other severe violations of international human rights and humanitarian law.




Editors’ notes:

  • On 29 December 2023, South Africa instituted proceedings against Israel before the ICJ. The application alleged that Israel’s conduct in relation to Palestinians in Gaza violates its obligations under the Genocide Convention.
  • The 26 January 2024 decision only dealt with South Africa’s request to indicate provisional measures – temporary orders with the purpose to stop irreparable harm and prejudice to the rights invoked from occurring pending the decision on the merits.
  • The ICJ will only be in a position to examine violations of the Genocide Convention. It does not have jurisdiction to consider whether other serious violations of international law, such as war crimes or crimes against humanity, have been committed since October 2023.
  • This is the second pending case before the ICJ relating to Israel and Palestine. In October 2023, the ICJ announced that it will hold public hearings starting in February 2024 ‘on the request for an advisory opinion in respect of the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem’.