Report card: Israel to file compliance update to ICJ over genocide charges

Israel’s submission will likely focus on efforts to improve Gaza humanitarian situation and steps to crack down on speech that may amount to incitement to genocide

Jeremy Sharon

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Displaced Palestinians gather to receive food at a government school in Rafah in the southern Gaza Strip on February 19, 2024. (Mohammed Abed/AFP)
Displaced Palestinians gather to receive food at a government school in Rafah in the southern Gaza Strip on February 19, 2024. (Mohammed Abed/AFP)

Israel will file its response on Monday to the orders issued by the International Court of Justice last month demanding that Israel report back on a few key aspects of the conflict with Hamas in Gaza, after the court found “plausibility” that Israel may have violated at least some of the clauses of the Genocide Convention back in January.

Although the court declined to order Israel to halts its campaign, an indication that it did not believe acts of genocide were actively being committed, it issued “provisional measures” ordering Israel to take steps to “prevent the commission of genocidal acts; “prevent and punish” incitement to genocide; “enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life” in Gaza; prevent the destruction of evidence related to allegations of genocide; and report back to the court in a month’s time.

The report is being drafted by the Justice Ministry and the Foreign Ministry but will not be released to the press or general public, and both ministries have been extremely tight-lipped about the information in the document.

But the key measures issued by the ICJ where Israel will need to demonstrate action are the orders to improve the humanitarian situation in Gaza, and to “prevent and punish” incitement to genocide.

This is because the Genocide Convention of 1948, to which Israel is signatory, states explicitly that “deliberately inflicting” conditions of life designed to bring about the destruction of a particular group of people, or part of it, is a violation of the convention.

Additionally, “direct and public incitement to commit genocide” is a punishable act under the Genocide Convention.

Israel’s delegation to the International Court of Justice in The Hague listens to the provisional measures ordered by the court against Israel, January 26, 2024. (International Court of Justice)

Given the court’s focus in its January 26 ruling on the dire humanitarian situation in Gaza, it is here that Israel will need to demonstrate it is not in violation of the convention, as well as provide proof that it is taking steps to prevent and punish incitement to genocide.

Indeed, a report by Ynet on Saturday said that Prime Minister Benjamin Netanyahu has asked the ministries drafting the report to focus on those two issues, as well as the order to prevent the destruction of evidence relating to allegations of genocide.

Humanitarian situation

Israel has denied it has any genocidal intent towards Palestinians in Gaza, a critical component of the crime of genocide, and argued that any inflammatory comments by politicians were either taken out of context or not representative of government policy.

But Jerusalem will still want to demonstrate the efforts it is making to alleviate the humanitarian situation in Gaza.

So what will Israel be able to report to the ICJ in terms of its efforts to alleviate the humanitarian situation in the territory?

According to the Coordinator of Government Activities in the Territories (COGAT), an agency within the Defense Ministry, some 13,905 trucks of humanitarian aid have passed into Gaza since the outbreak of war, which has brought 255,610 tons of supplies into the war-torn territory.

Palestinians loot a humanitarian aid truck as it crosses into the Gaza Strip in Rafah, December 17, 2023. (AP Photo/Fatima Shbair, File)

That has included 168,090 tons of food; 23,380 tons of water (which does not include the approximately 28.5 million liters a day piped by Israel into Gaza); and 17,740 tons of medical supplies; 27,920 tones of sheltering equipment.

COGAT also said that 164 tankers of fuel have entered the strip along with 286 tankers of cooking gas.

COGAT has not however provided a daily, weekly or monthly break down of the number of trucks entering Gaza, so it is impossible to evaluate Israel’s humanitarian efforts following the January 26 ICJ ruling based on Israeli data.

The UN Office for the Coordination of Humanitarian Affairs (OCHA) does however provide such detail, and the data actually shows a decrease in the amount of aid entering Gaza since the end of January. It appears that this is largely due to the breakdown in internal security and stability in the territory.

Before the October 7 Hamas atrocities and the outbreak of war, there were an average of 500 goods trucks, including fuel, every day, according to OCHA.

According to the agency, the daily average number of trucks entering Gaza since October 20, when Israel first began allowing supplies in after the outbreak of war, rose gradually to a peak of 156 trucks per day on average in the two weeks from January 12 to January 25, 2024, one day before the ICJ issued its provisional measures.

But only an average of 133 trucks entered Gaza per day from February 2 to 8, and that dropped off to just 57 on average between February 9 – 20.

Gazan residents, as well as Hamas combatants, have hijacked aid trucks, with the UN World Food Program pausing its already limited deliveries to northern Gaza. This came just two days after it restarted operations. Their convoys have faced crowds trying to climb aboard trucks, gunfire in Gaza City, the seizure of flour, and the beating of a truck driver.

Hamas members ride on top of a humanitarian aid truck in Rafah, Gaza Strip, December 19, 2023. (AP Photo)

Hamas’s police force has also ceased to provide security for the convoys from mobs of desperate Gazans, after coming under fire from the IDF.

COGAT has frequently argued that it is the failure of UN agencies to distribute the aid that has prevented an increase in the entry of supplies, and has repeatedly insisted there is no limit to the amount of trucks that can enter Gaza.

On February 15, COGAT posted pictures to X of what it said was aid consignments on the Gaza side of the Kerem Shalom goods crossing which had entered from Israel but which had yet to be collected by aid agencies for distribution.

“This is the content of 500 trucks of humanitarian aid on the Gazan side of Kerem Shalom, AFTER Israeli inspection, waiting to be picked up and distributed by @UN orgs. It is the 3rd day in a row that hundreds of trucks are not picked up. The UN needs to scale up their operations,” said COGAT.

Eri Kaneko, a spokesperson for the OCHA said in response to these issues that “the IDF has a responsibility to facilitate humanitarian operations within Gaza” and that “aid piling up at the crossing is evidence of an absence of this enabling environment amid enormous needs.”

The humanitarian situation in the territory remains dire. According to OCHA, around half a million people in Gaza face “catastroph[ic]” levels of hunger in which people have almost no food and cannot support their basic needs.

According to reports cited by OCHA, Some 81% of households lack safe and clean water with average household access estimated at less than one liter per person per day.

People ferry water at a makeshift tent camp for displaced Palestinians in Rafah near the border with Egypt in the southern Gaza Strip, on January 24, 2024 (AFP)

Critically, a report published by the London School of Hygiene and Tropical Medicine and the Johns Hopkins Center for Humanitarian Health on February 19 found that if the intensity of the conflict continued at its current level there would be some 29,530 excess deaths in Gaza from February 7 to May 6 this year, although the large majority (86%) would be from traumatic injuries from hostilities (figures which would include combatants). Some 1,430 deaths could result from infectious diseases in a situation in which epidemics do not break out. Another 1,260 excess deaths would result from non-communicable diseases.

In its report to the ICJ, Israel will likely point to its efforts at facilitating the entry of humanitarian aid during the current period and attribute the ongoing humanitarian crisis to the inability of the UN and other agencies to deliver the aid.

Genocidal language?

Addressing the requirement to “prevent and punish” those inciting genocide might be politically problematic, since some MKs and government ministers have made highly inflammatory remarks about how Gaza.

Ministers and MKs also enjoy immunity from prosecution for what might otherwise be deemed to be criminal speech such as incitement to genocide, further complicating the ability to comply with the ICJ order.

One way that Israelis whose speech has potentially veered into genocidal incitement could avoid prosecution and satisfy the court would be to either clarify that they did not intend to incite to genocide and that their words were misunderstood, or to retract their comments entirely.

There has, however, been little evidence that this has taken place.

The original application by South Africa includes numerous quotes from politicians, some army officials, and public figures of a highly problematic nature.

The application cited National Security Minister Itamar Ben Gvir saying: “When we say that Hamas should be destroyed, it also means those who celebrate, those who support, and those who hand out candy — they’re all terrorists, and they should also be destroyed.”

Heritage Minister Amichai Eliyahu made similar comments. “There is no such thing as uninvolved civilians in Gaza,” he said, while musing about Israel considering the use of a nuclear bomb in Gaza.

South Africa’s application also cited comments by lawmakers including Likud MK Tally Gotliv who posted on October 9 “Jericho missile! Jericho missile. Strategic deterrent. Before considering the entry of [our] forces. Doomesday weapon!” The Jericho missile is a long-range ballistic missile in the IDF’s arsenal which foreign reports state have been armed with atomic bombs.

MK Tally Gotliv during a debate and a vote in Knesset on the proposed impeachment of MK Ofer Cassif February 19, 2024. (Yonatan Sindel/Flash90)

Gotliv also posted favorably on X on October 29 about a chant sung by fans of the Beitar Jerusalem soccer club “may your village be burned” and added “This is great morale to wish for Gaza to be wiped out and to go up in flames.”

Likud MK Keti Shitrit said in an interview with Channel 14 news: “If you ask me on a personal level I would flatten Gaza, I’m not sentimental. Because you can’t separate between the murderers of women and children and Gazan civilians.”

Journalist David Mizrahy Verthaim wrote on X, that Israel should “turn the entire Strip into a slaughterhouse,”

And singer Kobi Peretz wrote on Instagram “Gaza has to be wiped out and be destroyed with the rest of Amalek’s descendants, with or without an atom [bomb], we simply must destroy all of Gaza and annihilate anyone who is there.”

None of the elected officials have retracted or clarified their comments, while Peretz even said explicitly on Instagram that he would not retract his statements adding “The judgement for The Hague is exactly the same as the judgement for the terrorists in Gaza, and everyone there needs to be destroyed and annihilated, and forever.”

The State Attorney’s Office and the Attorney General’s Office did not respond to questions as to how many investigations have been opened into Israelis over suspected incitement to genocide.

Just days before the hearings in the ICJ hearings in January, the Attorney General’s Office issued a statement saying that several incidents of possible incitement to harm civilians were being examined by her office, but the court said that while such comments were encouraging they were not sufficient to alleviate its concern over genocidal incitement.

The Attorney General’s Office has said nothing since the January comment about progress in prosecuting incitement, while “examinations” are not full-blown investigations but rather preliminary proceedings to evaluate if an investigation is necessary.

If investigations have been opened into some incidents of suspected incitement then this could potentially satisfy the ICJ that an effort to “prevent and punish” incitement to genocide has begun.

But this report is unlikely to be the last that The Hague demands of Israel, and the court may expect more concrete enforcement activity down the line to consider that Jerusalem is complying with its obligations under the convention.

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