Israel-Palestine: News

South Africa v. Israel - Order on Provisional Measures (26 January 2024)

26 January 2024

On 26 January 2024, the International Court of Justice (ICJ), the principal judicial organ of the United Nations (UN) with seat in The Hague, rendered an order for the indication of provisional measures in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).

The case commenced on 29 December 2023, when South Africa filed an application instituting proceedings, alongside a request for the indication of provisional measures, with the Court. South Africa argued in its application that Israel has been acting in breach of its obligations pursuant to the UN Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) by means of failing to prevent genocide; committing acts of genocide; and failing to prevent and punish public and direct incitement to genocide vis-à-vis Palestinians in the Gaza Strip since the outbreak of the hostilities on 7 October 2023. Public hearings were held on 11 and 12 January 2024.

A note examining possible avenues for securing the enforcement of the order, as well as the legal consequences for third States that follow from the provisions of the Genocide Convention and the prohibition of genocide in customary international law, is available here. A detailed Q&A on the South Africa v. Israel case is available here. All publications and updates on legal proceedings relating to Israel and the oPt can be found here, and all materials relevant to the 2023-2024 hostilities in Israel and Gaza can be found on this page.

Below is a summary of the Court’s order and an overview of the next steps in the proceedings.

Introduction

At the outset, the Court recalled the ‘immediate context’ of the proceedings, namely, the attacks by Hamas and other armed groups in Israel on 7 October 2023, in the course of which more than 1,200 persons were killed, thousands more were injured, and around 240 persons were abducted to Gaza (para 13). In response, the Israeli military launched an air, land, and sea operation in Gaza, which has resulted in a high number of civilian casualties, destruction of large swathes of civilian infrastructure, and the displacement of a vast majority of the population. The Court further expressed its concern over the ‘human tragedy that is unfolding in the region’ (para 13).

Prima facie jurisdiction

Turning to the conditions required for the indication of provisional measures, the Court observed that it first needs to determine whether the applicant, i.e., South Africa, has invoked provisions that appear prima facie capable of founding the Court’s jurisdiction (para 15). The Court noted that South Africa’s application is based upon Article IX of the Genocide Convention, which permits State parties to submit to the Court any dispute ‘relating to the interpretation, application or fulfilment’ of the Convention (para 17). The Court was satisfied that such a dispute existed between Israel and South Africa in light of several statements by South African officials alleging that Israel’s conduct of the military operations in Gaza contravenes its obligations under the Genocide Convention (para 26), claims which were emphatically rejected by the Israeli government (para 27), and thus indicative of both parties holding ‘clearly opposite views’ on the matter (para 28). The Court further observed that at least some of the alleged conduct on the part of Israel ‘appear[s] to be capable of falling within the provisions of the Convention’ (para 30). Therefore, the Court concluded that it has prima facie jurisdiction to hear the case (para 31).

Standing

Turning to the question of standing – i.e., whether South Africa has a legal interest in bringing the claims against Israel – the Court cited its earlier jurisprudence in support of the proposition that the Genocide Convention gives rise to obligations erga omnes partes. In other words, in light of the fundamental humanitarian values it protects, any State party to the Convention has a legal interest in ensuring compliance with its provisions (para 33). It therefore concluded that South Africa has prima facie standing to invoke Israel’s responsibility for alleged breaches of the Genocide Convention (para 34).

Plausibility of rights and link between the rights whose protection is sought and the measures requested

The Court then examined whether the rights whose protection South Africa has sought by means of its request for provisional measures are plausible. The rights in question encompass (i) the right of Palestinians in Gaza not to be subjected to acts of genocide or any other prohibited acts enumerated in the Genocide Convention, as well as (ii) South Africa’s own right, as a State party to the Convention, to invoke Israel’s international responsibility for any alleged breaches of the Convention (para 37). The Court observed that Palestinians constitute a protected group for purposes of the Genocide Convention (i.e., a distinct ‘national, ethnical, racial, or religious group’), of which Palestinians in Gaza in turn represent a ‘substantial part’ (para 45). It then surveyed various statements by UN officials attesting to a catastrophic state of affairs in Gaza, with tens of thousands killed, many thousands more injured, large swathes of civilian infrastructure destroyed, 1.7 million persons internally displaced, a collapsed healthcare system, and reported conditions of famine and starvation (paras 46-50). The Court further took note of statements made by senior Israeli officials that employ derogatory and dehumanising language vis-à-vis Palestinians in Gaza (paras 51-53). It concluded that ‘at least some of the rights claimed by South Africa and for which it is seeking protection are plausible’ (para 54).

Confirming the existence of a link between the rights whose protection is sought and the measures requested by South Africa, the Court stated simply that ‘by their very nature, at least some of the provisional measures sought … are aimed at preserving’ these rights (para 59).

Risk of irreparable prejudice and urgency

The Court then turned to the question as to whether there is ‘a real and imminent risk [i.e., urgency] that irreparable prejudice will be caused to the rights claimed’ prior to a final judgment in the proceedings (para 61). Noting that one of the principal objectives of the Genocide Convention is ‘to safeguard the very existence of certain human groups’ (para 65), the Court concluded that the rights invoked by South Africa – arising from the Convention – ‘are of such a nature that prejudice to them is capable of causing irreparable harm’ (para 66). The Court further examined a number of statements by UN officials warning of a further deterioration of conditions of life in Gaza (paras 67-72), leaving ‘the civilian population in the Gaza Strip … extremely vulnerable’ (para 70). Observing that the military operations in Gaza remain ongoing (para 70) and rejecting Israel’s assertion that the steps it professed to have taken to improve the humanitarian situation in Gaza and to prevent and punish incitement to genocide were sufficient (para 73), the Court found that there is both urgency and a risk of irreparable prejudice to the rights invoked by South Africa (para 74).

Conclusion and measures indicated

In light of the aforegoing, the Court concluded that the conditions for the indication of provisional measures have been met (para 75). Observing that it has the authority to indicate measures that are ‘in whole or in part … other than those requested’ (para 76), the Court ordered the following provisional measures (para 86):

(1) The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular (vote of 15 in favour, two against):

killing members of the group;
causing serious bodily or mental harm to members of the group;
deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
imposing measures intended to prevent births within the group;

(2) The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above (vote of 15 in favour, two against);

(3) The State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip (vote of 16 in favour, including Judge ad hoc Barak, one against);

(4) The State of Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip (vote of 16 in favour, including Judge ad hoc Barak, one against);

(5) The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip (vote of 15 in favour, two against);

(6) The State of Israel shall submit a report to the Court on all measures taken to give effect to this Order within one month as from the date of this Order (vote of 15 in favour, two against).

Differences between the measures granted by the Court and those requested by South Africa in its application

In line with the Court’s discretionary powers, the provisional measures indicated in the order differ from those requested by South Africa.

Notably, the first measure in South Africa’s application was a wholesale suspension of Israel’s military operations ‘in and against Gaza’. No such measure was ordered by the Court.
Furthermore, South Africa had asked the Court to order Israel to ‘desist from the commission of any and all acts within the scope of Article II of the Convention’ (i.e., the list of ‘inhumane acts’ that are constitutive of genocide if committed with the requisite special intent), which would have suggested that such acts have already taken place. The wording adopted by the Court in this respect (Israel shall ‘take all measures within its power to prevent the commission of all acts within the scope of Article II’) rather reaffirms the pre-existing obligations of all State parties to the Genocide Convention.
Finally, South Africa had linked the measures concerning the humanitarian situation in Gaza – including Israel’s desisting from and preventing acts of forced displacement as well as the deprivation of food, water, shelter, medical care, and humanitarian assistance – to one of the ‘inhumane acts’, namely, ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’. The Court, by contrast, did not allude to any such connection when ordering Israel to ‘take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip’.

What are the next steps in the proceedings?

Now that the ICJ has delivered its order on the request for the indication of provisional measures submitted by South Africa, Israel is required, as a matter of international legal obligation, to comply with the measures. It is possible that the provisional measures that have been issued may be revoked or modified at a subsequent stage of the proceedings before the final judgment, either upon the request of one of the parties or on the Court’s own initiative, if justified by a specified change in the situation. At any stage of the proceedings, a new request for provisional measures may be filed by South Africa on the basis of new facts, or indicated independently by the Court. The Court should also receive the report it has ordered Israel to submit in a month’s time from its order dated 26 January. The Court will then communicate the report to South Africa, which shall have the opportunity to submit its comments. It must be noted also that the Court may request information from Israel on any matter connected with the implementation of the provisional measures ordered.

The next phase of the proceedings will likely be the consideration of any preliminary questions raised by the Court itself or objections (generally) by the respondent party – Israel – regarding the Court’s jurisdiction or the admissibility of the case. At the end of these proceedings, the Court’s decision(s) will be delivered in the form of a judgment. If the case is not disposed of following preliminary objections, the Court will start or resume proceedings on the merits, depending on at what stage objections, if any, are raised.

The proceedings on the merits include a written phase and an oral phase. In the written proceedings, a Memorial and a Counter-Memorial will be submitted by South Africa and Israel, respectively. These contain, broadly speaking, statements and observations of the relevant facts and law, and the parties’ submissions (‘a concise statement of precisely what the party in question is asking the Court to adjudge and declare’). Oral proceedings – hearings where parties make oral presentations – are open to the public. The Court or individual judges have the right to ask questions to the parties during their submissions. Witnesses or experts may be called upon by the parties to the case, or by the Court.

Other States may apply to intervene in the case before the close of written proceedings. Such applications have to specify their legal interest, the object of their intervention, and the basis of jurisdiction that exists between that applying State and the parties to the case. If the Court permits the intervention, the intervening State can also submit its own observations limited to the issue(s) raised in its intervention during the oral proceedings.

Following the close of oral proceedings, the Court will deliberate in closed session and issue its final judgment, which cannot be appealed, together with any (separate or dissenting) opinions and declarations by individual judges.

It is likely that the rest of the proceedings will take place over years. The average duration for contentious cases is four years, but cases such as Bosnia and Herzegovina v. Serbia and Montenegro that also concerned alleged violations of the Genocide Convention took 14 years to conclude.