South Africa vs. Israel: International Court Of Justice Orders Provisional Measures
A Palestinian refugee camp outside Damascus. (Photo by Michael-Ann Cerniglia)
(ANALYSIS) On Jan. 26, the International Court of Justice, the principal judicial organ of the United Nations, ordered provisional measures in the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).
The order follows South Africa’s filing of an application instituting proceedings against Israel before the ICJ concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide in relation to Palestinians in the Gaza Strip on Dec. 29, 2023.
The application alleged that “acts and omissions by Israel ... are genocidal in character, as they are committed with the requisite specific intent ... to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnic group” and that “the conduct of Israel — through its State organs, State agents and other persons and entities acting on its instructions or under its direction, control or influence — in relation to Palestinians in Gaza, is in violation of its obligations under the Genocide Convention.”
In response to the filing, the Israeli Foreign Ministry issued a statement rejecting the filing and indicating that “South Africa's claim lacks both a factual and a legal basis, and constitutes despicable and contemptuous exploitation of the Court. South Africa is cooperating with a terrorist organization that is calling for the destruction of the State of Israel.” South Africa also requested provisional measures.
As per Article 41 of the ICJ statute, the ICJ has the power to indicate provisional measures when irreparable prejudice could be caused to rights that are the subject of judicial proceedings or when the alleged disregard of such rights may entail irreparable consequences.
The power to indicate provisional measures will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the ICJ gives its final decision. The condition of urgency is met when the acts susceptible of causing irreparable prejudice can “occur at any moment” before the ICJ makes a final decision on the case.
When explaining its reasoning, the ICJ indicated that it considered that “the civilian population in the Gaza Strip remains extremely vulnerable. It recalls that the military operation conducted by Israel after Oct. 7, 2023, has resulted, inter alia, in tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities and other vital infrastructure, as well as displacement on a massive scale. The (ICJ) notes that the operation is ongoing and that the Prime Minister of Israel announced on January 18, 2024, that the war ‘will take many more long months.’ At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating. ... In these circumstances, the (ICJ) considers that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment.” The ICJ noted that Israel has taken certain steps to address and alleviate the conditions faced by the population in the Gaza Strip. However, the ICJ indicated that these steps are insufficient to remove the risk that irreparable prejudice will be caused before the ICJ issues its final decision in the case. In the order of provisional measures, the ICJ concluded that “the conditions required by (the ICJ) Statute for it to indicate provisional measures are met. It is therefore necessary, pending its final decision, for the (ICJ) to indicate certain measures in order to protect the rights claimed by South Africa that the (ICJ) has found to be plausible.”
The ICJ indicated that “Israel must, in accordance with its obligations under the Genocide Convention, 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: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group.”
The ICJ further considered that “Israel must ensure with immediate effect that its military forces do not commit any of the above-described acts” and “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.”
The ICJ further indicated that “Israel must 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” and “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 Genocide Convention against members of the Palestinian group in the Gaza Strip.”
Lastly, Israel must submit a report to the ICJ on all measures taken to give effect to the order of provisional measures within one month.
The list of provisional measures ordered by the ICJ differs from those requested by South Africa. Among others, the ICJ did not order Israel to immediately suspend its military operations in and against Gaza, as requested by Israel.
The decision of the ICJ was met with strong responses.
South Africa issued a statement welcoming the order, indicating: “Today marks a decisive victory for the international rule of law and a significant milestone in the search for justice for the Palestinian people. In a landmark ruling, the ICJ has determined that Israel’s actions in Gaza are plausibly genocidal and has indicated provisional measures on that basis. For the implementation of the international rule of law, the decision is a momentous one. ... Third States are now on notice of the existence of a serious risk of genocide against the Palestinian people in Gaza. They must, therefore, also act independently and immediately to prevent genocide by Israel and to ensure that they are not themselves in violation of the Genocide Convention, including by aiding or assisting in the commission of genocide. This necessarily imposes an obligation on all States to cease funding and facilitating Israel’s military actions, which are plausibly genocidal.”
Israeli National Security Minister Itamar Ben Gvir is reported to have said that “the decision of the antisemitic court in The Hague proves what was already known: This court does not seek justice, but rather the persecution of Jewish people. Decisions that endanger the continued existence of the State of Israel must not be listened to. We must continue defeating the enemy until complete victory.”
As states, and the international community as a whole, consider the order and what it means in practical terms, we must focus on victims and survivors on both sides and how best to assist them. This must be the priority for all.
This piece was republished from Forbes with permission.
Dr. Ewelina U. Ochab is a human rights advocate, author and co-founder of the Coalition for Genocide Response. She’s authored the book “Never Again: Legal Responses to a Broken Promise in the Middle East” and more than 30 UN reports. She works on the topic of genocide and persecution of ethnic and religious minorities around the world. She is on X @EwelinaUO.