ICJ South Africa v. Israel: Human Rights Law Centre statement
In the wake of interim orders made by the International Court of Justice on 26 January 2024, the Human Rights Law Centre calls for the Australian Government to use all efforts to prevent genocide against the Palestinian people, including by supporting an immediate and permanent ceasefire in Gaza. The Centre further calls for Australia to demand the state of Israel end its illegal occupation of Palestine, including the construction and continued existence of illegal settlements, and for all parties to commit to achieving a just and enduring peace based on an observance of international law, so the events over the past 116 days can never be repeated.
The Human Rights Law Centre calls on the Albanese Government, as well as State and Territory governments, to act in accordance with Australia’s legal responsibilities under the Genocide Convention, the Rome Statute, and the interim measures set out by the Court. We urge Australian governments to take the following immediate steps:
immediately cease all military exports or other military assistance to the Israeli government, including to terminate all contracts with the Israeli Defense Force and related contractors;
immediately restore aid to humanitarian agencies operating in Gaza, including UNRWA, and support the international community’s efforts to ensure the effective delivery of aid;
robustly investigate anyone in Australia who may be responsible for international crimes, including those participating in military activities in Gaza, and unequivocally support international accountability mechanisms with jurisdiction over the situation in Israel and the Occupied Palestinian Territory, including the UN Independent Commission of Inquiry, the International Criminal Court and the International Court of Justice.
The Human Rights Law Centre was founded with a mission to advance human rights protections in Australia and overseas where there is a connection to Australia. This involves upholding international human rights legal frameworks, including the right to self-determination. We also promote the importance of international justice mechanisms, such as the International Court of Justice (ICJ) as the principal judicial organ of the United Nations, particularly where binding legal orders pertain to a State with which Australia has a close relationship. The Human Rights Law Centre considers that Australia has a duty to further the implementation of the orders made by the Court, including by exercising its influence with Israel. Such action is essential to Australia fulfilling its duty to employ all reasonable measures to prevent genocide.
By interim orders on 26 January, the ICJ found that it has jurisdiction to determine the dispute between Israel and South Africa regarding the application of the Genocide Convention and the request for urgent provisional measures. It found there is a plausible case that Palestinians in Gaza have a right to be protected from genocide.1 It also accepted there is a plausible case that South Africa has the right to seek Israel’s compliance under the Convention.
While the Court has not yet decided whether the facts do support a finding of genocide, it decided it appropriate to make orders to preserve those rights. South Africa presented evidence from Palestinians in Gaza and a range of international agencies in support of its claim that genocide is occurring, and that statements from Israeli officials are evidence of intent to destroy Palestinians. Israel denies these claims. The Court found that it does not need to decide yet whether Israel has violated its obligations under the Genocide Convention.
Both Israel and South Africa still have the right to make further arguments on the merits of the case. For now, it is sufficient that Israel’s conduct in its assault on Gaza, is plausibly genocidal, triggering the purpose and object of the Genocide Convention, to prevent genocide - “the crime of all crimes.”2
The Court also decided to take action given the real and imminent risk of irreparable harm. When South Africa filed its case in late December 2023, it cited United Nations reports that 21,110 people killed, including 7,729 children, with a further 4700 people either missing or under the rubble, and more than 60 percent of housing destroyed or damaged.3
Amid the intensity of Israel’s ongoing military attacks, the situation in Gaza has significantly worsened in the past month. The Court noted reports of 25,700 Palestinian people killed, 63,000 injuries and 1.7 million Palestinian people forcibly displaced from their homes. The Court further noted reports that 93% of Gaza’s population – or nearly 2 million people – faced “crisis levels of hunger”. It noted this extensive scale of death, injury, displacement, damage to civilian infrastructure and homes resulted from Israel’s military operation.4
In view of the ‘catastrophic humanitarian situation’ in Gaza which it considered ‘at serious risk of deteriorating further’, the Court made urgent interim orders requiring Israel to take all measures within its power to prevent the commission of genocide and to punish incitement to genocide by state authorities, including the military. It noted concerns by independent experts that certain statements by senior Israeli officials was ‘discernibly genocidal and dehumanising’ rhetoric. The Court also required Israel to take immediate and effective measures to ensure the delivery of humanitarian aid to ensure basic living conditions for Palestinians in Gaza, to preserve evidence of alleged genocidal acts, and to report back on its compliance within a month.5
The Human Rights Law Centre emphasises that genocide is never justifiable under any circumstance. Self-defence can never be a justification for genocide. The Court’s orders confirm that no state party can unilaterally define its obligations under international law. The prohibition on genocide is held in common, owed to all without exception, and is enforceable by any state party to the Genocide Convention.
Hamas’ violence, hostage-taking and killing of civilians on 7 October 2023 and afterwards must be independently investigated as international crimes and violations of international human rights law. All perpetrators must be brought to account. We welcome the UN Independent International Commission of Inquiry’s investigation into all allegations of gender-based crimes on and since 7 October. We echo the Court’s orders in calling for the immediate and unconditional release of all hostages.
The violence in Israel, Gaza and the occupied West Bank is also having a profound impact on communities in Australia. Many people have lost family and friends, and are living in a constant state of fear about who they will lose next. Islamophobia, antisemitism and anti-Arab sentiment is on the rise, threatening the safety of people in Australia. There is no place for hatred in our society and our communities.
Peaceful protests against the unfolding atrocities in Gaza have at times been met with government and police hostility. The right of all Australians to peacefully protest must be upheld and respected. In the face of mounting evidence of genocide, peaceful calls for accountability are especially important. Dismissing such calls as antisemitic or racist undermines the fight against antisemitism and all forms of hate speech and racism.
Given the clear and present risk of genocide in Gaza, the Australian Government has an obligation to ensure nothing it does facilitates the Israeli Government’s assault. In view of the conduct of Israel’s military forces and political leaders to date, a complete and permanent ceasefire is a necessary first step towards full compliance with the Court’s orders.
1. International Court of Justice, Order in Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), 26 January 2024 (ICJ Order), [54]
2. The Prosecutor v Jean-Paul Akayesu, Judgment, 2 September 1998, International Criminal Tribunal for Rwanda
3. South Africa’s Application Instituting Proceedings, 28 December 2023 [19]
4. ICJ Order [46-48]
5. ICJ Order [70,72,74, 53, 86]
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