The International Court of Justice issues provisional measures against Israel

Summary

On the 26th of January, 2024, the International Court of Justice (the Court) issued provisional orders against the State of Israel (hereinafter “Israel”) regarding the application of the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the “Genocide Convention”) in the Gaza Strip, specifically the case of Republic of South Africa (hereinafter “South Africa”) v. Israel.

Background

On 7 October 2023, Hamas and other armed groups present in the Gaza Strip carried out an attack in Israel, killing more than 1,200 persons, injuring thousands and abducting some 240 people, many of whom continue to be held hostage. Following this attack, Israel launched a large-scale military operation in Gaza, by land, air and sea, which is causing massive civilian casualties, extensive destruction of civilian infrastructure and the displacement of the overwhelming majority of the population in Gaza.

On 29 December 2023, South Africa filed in the Registry of the International Court of Justice (the Court) an Application instituting proceedings against the Israel concerning alleged violations in the Gaza Strip of obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the “Genocide Convention” or the “Convention”)

Findings

The Court made the following key determinations:

Prima Facie Jurisdiction: The Court examined whether there is a prima facie case of jurisdiction based on the Genocide Convention, including the existence of a dispute and the plausibility of the claims made by South Africa and found that there was, indeed a prima facie case, the existence of a dispute between South Africa and Israel and plausibility of the claims made by South Africa.

Standing of South Africa: The Court determined that South Africa has standing to submit the dispute to the Court based on the provisions of the Genocide Convention.

Rights and Measures Requested: The Court evaluated the plausibility of the rights claimed by South Africa and their link to the provisional measures requested and found that the rights claimed were plausible and that the claimed rights had a link to the provisional measures requested.

Risk of Irreparable Prejudice and Urgency: The Court discussed whether there is a real and imminent risk of irreparable prejudice to the rights claimed by South Africa, and whether such a risk necessitates the indication of provisional measures and found that, indeed, was a real and imminent risk of irreparable prejudice to the rights claimed by South Africa which necessitated the indication of provisional measures.

As a result, provisional measures were indicated as follows:-

1. Israel shall, 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 the Genocide 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.

2. Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above.

3. 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.

4. 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.

5. 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.

6. Israel shall submit a report to the Court on all measures taken to give effect to the Court’s Order within one month as from the date of the Court’s Order.

Comment

The decision balances the arguments presented by South Africa and Israel and examines the factual and legal elements to determine the plausibility of the claims and the necessity of provisional measures.

Notably, Israel did not oppose South Africa’s standing to bring the case, reflecting a recognition that of the Court’s jurisdiction expressed in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) where Article IX of the Genocide Convention was also invoked.

It would be interesting to see if Israel will respect and comply with the Court’s order and if so, it would be particularly interesting to see the report that Israel will make to the Court on or before the 26th of February, 2024.

The decision is available on the following link, i.e., https://icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf