Published on 26 January 2024 in Client Alerts

International Court of Justice orders provisional measures in the Genocide Convention case between the Republic of South Africa and the State of Israel

On 26 January 2024, the International Court of Justice (“ICJ”) delivered its Order on the Request for the indication of provisional measures submitted by the Republic of South Africa by the Republic of South Africa (“South Africa”) in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).

The Court first determined that it has jurisdiction to hear the case. Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) provides the ICJ with jurisdiction over disputes on this Convention.  The Court found that “as a matter of substance” there is such a dispute between the State of Israel (“Israel”) and South Africa as they “clearly hold opposite views” as to whether Israel’s acts and omissions in Gaza constitute violations of its obligations under the Genocide Convention.  The Court determined this on the basis of both Parties’ public statements in multi/bilateral settings.

The ICJ then determined that it can order provisional measures and that these need not be identical to those requested by South Africa.  The Court has the power to do so under Article 41(1) of the Statute of the Court to “preserve the respective rights of either party”.  The Court determined that it can exercise this power, because:

• the rights which South Africa is seeking to protect, i.e., the rights of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts mentioned in Article III of the Genocide Convention, are plausible.  To this end, the Court considered that the “Palestinians appear to constitute a distinct ‘national, ethnical, racial or religious group’”, protected under Article II of the Genocide Convention.  It also noted that attacks by Israel in Gaza “had resulted in a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure”; and
• “by their very nature at least some of the provisional measures sought by South Africa are aimed at preserving the plausible rights it asserts”, forming the required link between those rights and the provisional measures requested; and
• “there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to” the aforementioned rights that the Court deemed plausible before it gives its final Judgment.  The Court considered in this respect that “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further”. It also observed that steps taken by Israel “to address and alleviate the conditions faced by the population in the Gaza Strip […] are insufficient to remove the risk that irreparable prejudice” to those rights.

On the basis of the above, the ICJ ordered the following provisional measures, Israel must:

• “take all measures within its power to prevent the commission of all [genocidal acts]” (i.e., acts within the scope of Article II of the Genocide Convention)
• “ensure with immediate effect its military does not commit any [genocidal acts]”;
• “take all measures within its power to the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip”;
• “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance” to Palestinians in the Gaza Strip;
• “take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of [genocidal acts]” against Palestinians in the Gaza Strip; and
• submit within one month a report to the Court “on all measures taken to give effect to its Order” (as provided for under Article 78 of the Rules of Court).
• These ordered provisional measures differ from those requested by South Africa, as allowed under Article 75(2) of the Rules of Court.

The Court underscored that it did not ascertain whether Israel had violated its obligations under the Genocide Convention, which is a question for the later merits stage of this case. At this stage, the Court found only that “some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention”.

The Court emphasised that “all parties to the conflict in the Gaza Strip are bound by international humanitarian law” and expressed that it is “gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release”.

The Court’s Order was not unanimous. Judge Sebutinde voted against all provisional measures and wrote a dissenting opinion.  Ad hoc Judge Barak, appointed by Israel in this case, voted against four out of the six provisional measures and issued a separate opinion. Each of Judges Xue, Bhandari and Nolte wrote a declaration while voting with the majority.

For further information, please contact info@volterrafietta.com, see also Volterra Fietta’s virtual seminar on provisional measures at the International Court of Justice here