Each day … in Gaza – Isra-l at the ICJ

[Case for South Africa against Isra-l presented by Blinne Ní Ghrálaigh, the Irish barrister who speciales in human rights and international law.]^[7]

Gaza – a Crisis of Humanity, a Living Hell, a Bloodbath

Madam President, members of the Court,^[4] there is an urgent need for provisional measures to protect Palestinians in Gaza from the irreparable prejudice,^[5] caused by Israel’s violations of the Genocide Convention.

The United Nations Secretary General and its chiefs describe the situation in Gaza variously as a crisis of humanity, a living hell, a bloodbath, a situation of utter deepening and unmatched horror where an entire population is besieged and under attack, denied access to the essentials for survival on a massive scale.

As the United Nations Under Secretary General for Humanitarian Affairs stated last Friday, and I quote,

Horrific Death Toll and Destruction, Deaths From Starvation and Disease

The court has heard of the horrific death toll, and of the more than 7,000 Palestinian men, women and children reported missing, presumed dead or dying slow excruciating deaths trapped under the rubble. Reports of field executions and torture and ill treatment are mounting, as our images of decomposing bodies of Palestinian men, women and children left unburied where they were killed, some being picked upon by animals.

It is becoming ever clearer that huge swathes of Gaza, entire towns, villages, refugee camps, are being wiped from the map. As you have heard, but it bears repeating, according to th e World Food Programme, four out of five people in the world, in famine or a catastrophic type of hunger, are in Gaza right now. Indeed, experts warn that deaths from starvation and disease risk significantly outstripping deaths from bombings.

Daily Statistics as Clear Evidence

The daily statistics stand as clear evidence of the urgency and of the irreparable prejudice. On the basis of the current figures, on average, 247 Palestinians are being killed and are at risk of being killed each day, many of them literally blown to pieces.

This image was not part of the original presentation at the ICJ

They [i.e. those killed] include 48 mothers each day, two every hour, and over 117 children each day, leading UNICEF to call Israel’s actions a war on children. On current rates which show no sign of abating,

Each day, over three medics, two teachers, more than one United Nations employee, and more than one journalist will be killed, many while at work or in what appear to be targeted attacks on their family homes or where they are sheltering.

The risk of famine will increase each day.

Each day, an average of 629 people will be wounded, some multiple times over as they move from place to place, desperately seeking sanctuary.

Each day, over 10 Palestinian children will have one or both legs amputated, many without anesthetic.

Each day, on current rates, an average of 3900 Palestinian homes will be damaged or destroyed, more mass graves will be dug, more cemeteries will be bulldozed and bombed, and courpses violently exhumed, denying even the dead any dignity or peace.

Each day, ambulances, hospitals and medics will continue to be attacked and killed. The first responders who have spent three months without international assistance, trying to dig families out of the rubble with their bare hands, will continue to be targeted.

On current figures, one will be killed almost every second day, sometimes in attacks launched against those attending the scene to rescue the wounded.

Each day, yet more desperate people will be forced to relocate from where they are sheltering or will be bombed in places where they have been told to evacuate to. Entire, multi-generational families will be obliterated, and yet more Palestinian children will become W-C-N-S-F, wounded child, no surviving family, the terrible new acronym, born out of Israel’s genocidal assault on the Palestinian population in Gaza.

There is an Urgent Need for Provisional Measures

There is an urgent need for provisional measures to prevent imminent, irreparable prejudice to the rights and issue in this case. There could not be a clearer or more compelling case. In the words of the Commissioner-General of the United Nations Relief and Works Agency, there must be an end to the decimation of Gaza and of its people.

Turning to the Court’s case law, as the Court has recently reaffirmed, and I quote, “The condition of urgency is met when acts susceptible of causing irreparable prejudice can occur at any moment before the Court makes a final decision on the case.” That is precisely the situation here. Any of those matters to which I have referred can and are occurring at any moment.

Delivery of Humanitarian Assistance

United Nations Security Council resolutions demanding, quote,

Resolutions for a Humanitarian Ceasefire Ignored

United Nations General Assembly resolutions calling for a humanitarian ceasefire have been ignored. The situation could not be more urgent. Since these proceedings were initiated on 29 December 2023 alone, an estimated over 1,703 Palestinians have been killed in Gaza and over 3,252 injured.

As to the criterion of irreparable prejudice, for decades now, the Court has repeatedly found it to be satisfied in situations where serious risks arise to human life or to other fundamental rights. In the cases of Georgia, Russia and Armenia, Azerbaijan, the Court ordered provisional measures having found a serious risk of irreparable prejudice where hundreds of thousands of people had been forced from their homes. In ordering provisional measures in the latter case, the Court noted the context of, I quote,

In Gaza, as you have heard, nearly two million people, over 85 percent of the population, have been repeatedly forced to flee their homes and shelters, not just once or twice, but some three, four or more times over, into shrinking slivers of land where they continue to be bombed and killed.

This is a population that Israel had already made vulnerable through 16 years of military blockade and crippling de-development. Today, Israel’s hindrances to the import of food and essential items have brought Gaza to the brink of famine. With adults, mothers, fathers, grandparents, regularly foregoing food for the day so that children can eat at least something.

Medicine shortages and the lack of medical treatment, clean water and electricity are so great that large numbers of Palestinians are dying or are at imminent risk of dying preventable deaths. Cancer and other services have long shut down.

Women are undergoing cesarean sections without anesthetic in barely functioning hospitals described as scenes from a horror movie with many undergoing otherwise unnecessary hysterectomies in an attempt to save their lives.[1]

School Children and University Students

In Gaza, 625,000 school children have not attended school for three months, with the United Nations Security Council expressing deep concern, I quote, that the disruption of access to education has a dramatic impact on children and that conflict has lifelong effects on their physical and mental health. Almost 90,000 Palestinian university students cannot attend a university in Gaza.

Over 60% of schools, almost all universities and countless bookshops and libraries have been damaged or destroyed, and hundreds of teachers and academics have been killed, including deans of universities and leading Palestinian scholars, obliterating the very prospects for the future education of Gaza’s children and young people.[2]

Immediate Ceasefire!

Israel Rejects Responsibility for the Humanitarian Crisis

Israel continues to deny that it is responsible for the humanitarian crisis it has created, even as Gaza starves. The aid it has belatedly begun to allow in is wholly inadequate and does not come anywhere close to the average 500 trucks being permitted daily before October 2023, even under the blockade.

Any unilateral undertakings Israel might seek to give about future aid would not remove the risk of irreparable prejudice, not least considering Israel’s past and current conduct towards the Palestinian people, including the 16 years of brutal siege on Gaza.

In any event, as the United Nations Secretary General has made absolutely clear, it is a mistake to measure, quote, “the effectiveness of the humanitarian operation in Gaza based on the number of trucks allowed in.” As he stressed, I quote,

Stop All Israel Military Operations!

Indeed, only shortly after Israel opened the Kerem Shalom crossing to goods in late December 2023, it was struck in a drone attack, killing five Palestinians and leading to another temporary closure. Nowhere and nobody is safe.

As the United Nations Secretary General and all its chiefs have made clear, without a halt to Israel’s military operations, crossings, aid convoys, and humanitarian workers, like everyone and everything else in Gaza, remain at imminent risk of further irreparable prejudice.

An unprecedented 148 United Nations staff have been killed to date. Without a halt to Israel’s military activity in Gaza, there will be no end to the extreme situation facing Palestinian civilians.

Madam President, members of the court, if the indication of provisional measures was justified on the facts in those cases I have cited,[3] how could it not be here, in a situation of much greater severity, where the imminent risk of irreparable harm is so much greater? How could they not be justified in a situation that humanitarian veterans, from crises spanning as far back as the killing fields of Cambodia, people who, in the words of the United Nations Secretary General, have seen everything, if they say it is so utterly unprecedented that they are out of words to describe it? It would be a complete departure from the long and established line of jurisprudence that this court has firmly established and recently reconfirmed, for the court not to order provisional measures in this case.

The imminent risk of death, harm and destruction that Palestinians in Gaza face today and that they risk every day during the pendency of these proceedings, on any view justifies, indeed compels the indication of provisional measures.

Some might say that the very reputation of international law, its ability and willingness to bind and to protect all people equally, hangs in the balance.

The Elementary Principles of Morality

But the Genocide Convention is about much more than legal precedent. It is also fundamentally about the confirmation and endorsement of elementary principles of morality.

The court recalled the 1946 General Assembly resolution on the crime of genocide, which made clear that, I quote,

Notwithstanding the Genocide Convention’s recognition of the need to rid the world of the odious scourge of genocide, the international community has repeatedly failed. It failed the people of Rwanda, it had failed the Bosnian people and the Rohingya, prompting this court to take action. It failed again by ignoring the early warnings of the grave risk of genocide to the Palestinian people, sounded by international experts since 19 October of last year.

The international community continues to fail the Palestinian people, despite the overt dehumanizing genocidal rhetoric by Israeli governmental and military officials, matched by the Israeli army’s actions on the ground. Despite the horror of the genocide against the Palestinian people, being live streamed from Gaza to our mobile phones, computers and television screens, the first genocide in history, where its victims are broadcasting their own destruction in real time, in the desperate so far vain hope that the world might do something.

Gaza represents nothing short of a moral failure, as described by the usually circumspect International Committee of the Red Cross. As underscored by United Nations chiefs, that failure has, I quote,

As stated by a United Nations spokesperson in Gaza last week, at the site of a hospital clearly marked with a symbol of the red crecent, where five Palestinians, including a five-day-old baby, had just been killed, the world should be absolutely horrified. The world should be absolutely outraged. There is no safe space in Gaza, and the world should be ashamed.

Madam President, members of the Court, in conclusion I share with you two photographs.

The first is of a whiteboard at a hospital in northern Gaza, one of the many Palestinian hospitals targeted, besieged and bombed by Israel over the course of the past three brutal months. The whiteboard is wiped clean of no longer possible surgical cases, leaving only a handwritten message by a Med-Sans-Sans-Français doctor which reads, “We did what we could. Remember us.”

The second photograph is of the same whiteboard after an Israeli strike on the hospital on the 21st of November that killed the author of the message, Dr. Mahmoud Abu Nujela, along with two of his colleagues.

Just over a month later, in a powerful sermon delivered from a church in Bethlehem on Christmas Day, the same day Israel had killed 250 Palestinians, including at least 86 people, many from the same family, massacred in a single strike on Magazi refugee camp. Palestinian pastor Munveir Ishaq addressed his congregation and the world, and he said, and I quote,

South Africa is here before this court in the peace palace. It has done what it could. It is doing what it can by initiating these proceedings, by seeking interim measures against itself as well as against Israel.

South Africa now respectfully and humbly calls on this honourable court to do what is in its power to do, to indicate the provisional measures that are so urgently required to prevent further irreparable harm to the Palestinian people in Gaza, whose hopes, including for their very survival, are now vested in this court. Thank you.

.-.

Footnotes

1. In the Canada-Syria torture case, the court made clear that, I quote,

   “individuals subject to torture and other acts of cruel, inhuman or degrading treatment or punishment are at serious risk of irreparable prejudice.”

   Well, Palestinians in Gaza are also at risk of such irreparable prejudice with videos of Palestinian boys and men rounded up and stripped and degraded broadcast to the world alongside footage of serious bodily harm and accounts of serious mental harm and humiliation.

   In (the case of) Qatar, (versus the) United Arab Emirates, the court considered provisional measures to be justified having regard to the risk of irreparable prejudice deriving from factors such as people being forced to leave their places of residence without the possibility of return, the psychological distress of temporary or potentially ongoing separation from their families, and the harm associated with students being prevented from taking their exams.

   If provisional measures were justified there, how could they not be in Gaza where countless families have been separated, with some family members evacuating under Israeli military orders and others staying behind at extreme risk to care for the wounded, infirm and the elderly, where husbands, fathers and sons are being rounded up and separated from their families taken to unknown locations for indeterminate periods of time? In the Qatar case, the court issued a provisional order where harm to approximately 150 students was an issue.
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2. Notably, the court has found provisional measures to be justified in all three cases where they were previously sought in relation to violations of the Genocide Convention. It did so in Bosnia and Serbia in 1993, finding on the basis of evidence that was certainly no more compelling than that presently before the court, that it was sufficient to determine that there was, and I quote, a grave risk of acts of genocide being committed. The court found provisional measures to be justified in the Gambia Mianmar case on the basis of a risk of irreparable prejudice to the Rohingya, subject to, quote, mass killings as well as beatings, the destruction of villages and homes, denial of access to food, shelter and other essentials of life.

   More recently, in indicating provisional measures in Ukraine-Russia, the court considered that Russia’s military activities had, quote, resulted in numerous civilian deaths and injuries and caused significant material damage, including the destruction of buildings and infrastructure, end quote, giving rise to a risk of irreparable prejudice. The court had regard to the fact that, quote, attacks are ongoing and are creating increasingly difficult living conditions for the civilian population, end quote, which are considered to be extremely vulnerable. The court also considered the fact that, I quote again,

   “many persons have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating,”

   and that many were attempting to flee under extremely insecure conditions.

   This is occurring in Gaza on a much more intensive scale to a besieged, trapped, terrified population that has nowhere safe to go. Lest the country be suggested, it is clear from Ukraine-Russia that the fact that the urgent risk of irreparable harm arises in a situation of armed conflict does not undermine, much less preclude, a request for provisional measures.

   That’s also clear from the court’s other judgments. So in the case of armed activities on the territory of the Congo, for example, the court ordered provisional measures based on its finding that, quote, “persons, assets and resources present on the territory of the Congo, particularly in the area of conflict, remain extremely vulnerable,” and that “there was a serious risk that right the tissue in the case may suffer irreparable prejudice,” end quote. Similarly, in Costa Rica Nicaragua, the court indicated provisional measures in part on the basis that the presence of troops in the disputed territory gave rise, I quote, “to a real and present risk of incidents liable to cause irremediable harm in the form of bodily injury or death,” end quote. In relation to the Genocide Convention in particular, the court recalled in Gambia Myanmar that, quote, “State parties expressly confirmed their willingness to consider genocide as a crime under international law, which they must prevent and punish independently of the context of peace or of war in which it takes place,” end quote.

   More recently, in the case of Guyana, Venezuela, the court considered that the serious risk of Venezuela, quote, “acquiring and exercising control and administration of the territory in dispute,” end quote, “gave rise to a risk of irreparable prejudice to the rights asserted in the case.” Similar factors are an issue here, having regard to the territorial ambitions and settlement plans for Gaza, being raised by members of the Israeli government, and the relationship of those factors to the very survival of Palestinians in Gaza as such. Similarly, any scaling up by Israel of access of humanitarian leaf to Gaza in response to these proceedings or otherwise would be no answer to South Africa’s request for provisional measures.

   In the case of Iran, United States, the court found a risk of irreparable harm from the exposure of individuals to danger, to health and life caused by restrictions placed on medicines and medical devices, foodstuffs, and other goods required for humanitarian needs. That was notwithstanding the assurances offered by the United States for it to expedite the consideration of humanitarian issues and notwithstanding the fact that essentials were in any event exempt from the United States sanctions. The court considered that the assurances were, I quote, “not adequate to address fully the humanitarian and safety concerns raised,” and that there remained a risk that measures adopted by the United States may entail irreparable consequences.

   In Armenia, Azerbaijan, unilateral undertakings to alleviate restrictions alongside the full resumption of humanitarian and commercial deliveries would not defeat requests for the indication of provisional measures. The court was clear that while contributing, quote, “towards mitigating the imminent risk of irreparable prejudice resulting from the military operation,” those developments did not remove the risk entirely. Indeed, in Georgia-Russia, the court made clear that it considers a serious risk to subsist where, quote, “the situation is unstable and could rapidly change.” The court considered, quote, “given the ongoing tension and the absence of an overall settlement to the conflict in this region, populations also remain vulnerable,” end quote.
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3. See fn1 and fn2
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4. Edits we made to the original text:
   – Added subtitles
   – Inserted the first top image of buildings bombed by Isra-l.
   – Added a few explanations in parenthesis.
   – Moved two sections (fn1, and fn2) to the footnote section.
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5. Serious or irreparable prejudice/ irreparable harm:
   The damage is irreparable where it is not susceptible or can hardly be compensated by damages.

   Irreparable harm is a legal term that refers to harm or injury that cannot be adequately compensated or remedied by any monetary award or damages that may be awarded later. Irreparable harm is a necessary requirement for a court to grant a preliminary injunction or temporary restraining order.
   Source:
   irreparable harm – LII / Legal Information Institute
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6. What is the International Court of Justice?
   The ICJ, also called the World Court, is the highest United Nations legal body that can adjudicate on issues between member states. It is separate from the International Criminal Court (ICC), which tries individuals in criminal cases.

   The ICJ comprises 15 judges appointed for nine-year terms through elections at the UN General Assembly (UNGA) and the Security Council (UNSC). The court’s rulings are binding and cannot be appealed by member states, but it depends on the UNSC to enforce the decisions.
   A quick guide to South Africa’s ICJ case against Israel | Israel War on Gaza News | Al Jazeera
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7. Blinne Ní Ghrálaigh stood in front of the International Court of Justice (ICJ) as part of South Africa’s legal team taking action against Israel for it’s conduct against Gaza. She is an Irish lawyer who *speciales in human rights and international law,* and is now on the team advising South Africa on its case against Israel. 

   Irish lawyer’s stunning speech at The Hague accusing Israel of genocide in Gaza

   Irish lawyer tells Hague that Gaza is ‘first genocide in history’ being broadcast in ‘real-time’.
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