[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,
"Gaza has become a place of death and despair. Families are sleeping in the open as temperatures plummet. Areas where civilians were told to relocate for their safety have come under relentless bombardment.
Medical facilities are under relentless attack. The few hospitals that are partially functional are overwhelmed with trauma cases, critically short of all supplies and inundated by desperate people seeking safety. A public health disaster is unfolding.
Infectious diseases are spreading in overcrowded shelters as sewers spill over. **Some 180 women are giving birth daily amidst this chaos.** People are facing the highest levels of food insecurity ever recorded. Famine is around the corner.
For children in particular, the last 12 weeks have been traumatic. No food, no water, no school, nothing but the terrifying sounds of war day in and day out. Gaza has simply become uninhabitable. Its people are witnessing daily threats to their very existence. While the world watches on."
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,
"the immediate safe, unhindered delivery of humanitarian assistance at scale throughout Gaza and full, rapid, safe and unhindered humanitarian access, remain unimplemented."
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,
"the long-standing exposure of the population to a situation of vulnerability, including hindrances to the importation of essential goods, causing shortages of food, medicine and other life-saving medical supplies," end 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.
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.
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,
"the real problem is that the way Israel is conducting this offensive means that the conditions for the effective delivery of humanitarian aid no longer exist. That would require security, staff who can work in safety, logistical capacity, and the resumption of commercial activity. It requires electricity and steady communications. All of these remain absent."
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, 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,
"
Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings.
Such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations."
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,
"repercussions not just for the people of Gaza, but for the generations to come who will never forget these over 90 days of hell and assaults on the most basic precepts of humanity."
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,
“Gaza as we know it no longer exists. This is an annihilation. This is a
genocide. We will rise. We will stand up again from the midst of destruction, as we have always done as Palestinians, though this is by far maybe the biggest blow we have received.” But he said, “No apologies will be accepted after the
genocide. What has been done has been done. I want you to look in the mirror and ask, where was I when Gaza was going through a
genocide?”
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.
.-.