Israel-Palestine: News

The ICJ’s Third Order on Provisional Measures in the South Africa v. Israel Case

24 May 2024

On 24 May 2024, the ICJ rendered its third order on 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).   

South Africa instituted proceedings on 29 December 2023, and the Court indicated provisional measures on 26 January and 28 March 2024. Public hearings on South Africa’s most recent request for provisional measures, filed on 10 May, were held on 16 and 17 May 2024.  

The following provides a brief summary of the Court’s order.  

All publications on the South Africa v. Israel case are listed here, and a research page on legal proceedings relating to Israel and the occupied Palestinian territory can be found here. All materials relevant to the 2023-2024 hostilities in Israel and Gaza are available on this page

Summary of the Order 

The Court noted at the outset that South Africa’s request of 10 May constitutes a request for the modification of the provisional measures indicated by the Court on 28 March; accordingly, the Court must determine in accordance with Article 76(1) of the Rules of Court whether there has been a change in circumstances warranting such a modification (para 20). The Court answered in the affirmative (para 29), noting that ‘the concerns that it expressed [earlier] … have materialized, and that the humanitarian situation is now to be characterized as disastrous’ (para 28). It recalled Israel’s launch of a ground offensive in Rafah on 7 May and concomitant issuance of relocation orders, which as of 18 May 2024 had led to the displacement of around 800,000 Palestinians from Rafah (para 28). The Court further observed that the measures indicated in its earlier order of 28 March and those reaffirmed therein do not suffice to address the change in the situation (para 30), which it characterised as ‘exceptionally grave’ (para 29). 

Turning to the conditions required for the indication of provisional measures pursuant to Article 41 of the Statute, the Court found ‘no reason to revisit’ its earlier determinations that it has prima facie jurisdiction (para 31), and that at least some of the rights invoked by South Africa – of Palestinians in the Gaza Strip not to be subjected to acts of genocide and related unlawful acts under the Genocide Convention, and of South Africa to invoke Israel’s responsibility for such alleged acts – are plausible (para 32). The Court also held that ‘by their very nature’, at least some of the measures requested by South Africa ‘are aimed at preserving the rights claimed’ (para 32).  

Regarding the requirements of urgency and irreparable prejudice, the Court first recalled its previous observation that due to the very nature of the rights at issue, there is a risk of irreparable harm (para 34). It then surveyed statements by senior United Nations (UN) officials warning of the ‘immense risks associated with a military offensive in Rafah’, such as the collapse of basic services and infrastructure for around 1.2 million displaced persons, around half of whom are children, the deaths of hundreds of thousands, and a halt to the humanitarian relief effort in Gaza (para 44). According to these officials, such risks had ‘started to materialize’ with the commencement of the ground offensive and ‘will intensify even further’ (para 45). They pointed, for instance, to hospitals ceasing to function and lack of access to warehouses storing food (para 45).  

The Court also noted that the information provided by Israel as to the steps it has allegedly taken to ensure the safety of the civilian population in Gaza, including the displaced in Rafah, are not sufficient to thwart these risks, concluding that Israel failed to ‘[dispel] the concerns raised by its military offensive in Rafah’ (para 46) and that there is, consequently, a ‘further risk of irreparable prejudice’ (para 47).  

Recalling its power pursuant to Article 75(2) of the Rules of the Court to indicate measures that are in whole or in part different from those requested by the applicant (para 49), the Court indicated the following provisional measures in the operative part of the order (57): 

(1) Reaffirms the provisional measures indicated in its Orders of 26 January 2024 and 28 March 2024, which should be immediately and effectively implemented (vote of 13 in favour, Judge Sebutinde and Judge ad hoc Barak against); 

(2) Indicates the following provisional measures: 

The State of Israel shall, in conformity with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in view of the worsening conditions of life faced by civilians in the Rafah Governorate:  

(a) Immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part (vote of 13 in favour, Judge Sebutinde and Judge ad hoc Barak against); 

(b) Maintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance (vote of 13 in favour, Judge Sebutinde and Judge ad hoc Barak against);  

(c) Take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide (vote of 13 in favour, Judge Sebutinde and Judge ad hoc Barak against);  

(3) Decides that 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 13 in favour, Judge Sebutinde and Judge ad hoc Barak against).   

The Court concluded by expressing its concern over the fate of the hostages held in Gaza and called ‘for their immediate and unconditional release’ (para 56).  

Consequences for Israel and for third States 

The Court specifically emphasised that the order ‘ha[s] binding effect and thus create[s] international legal obligations for any party to whom the provisional measures are addressed’ – Israel in this case (para 54). Legal consequences also follow for third States, which the IHL Centre has outlined here and here.  

Cover photo: View of the ICJ courtroom, Friday 24 May 2024. UN Photo/ICJ-CIJ/Bastiaan Musscher. Courtesy of the ICJ. All rights reserved.