192-20240126-ORD-01, Application of the Convention on the Prevention and...

Volltext (verifizierbarer Originaltext)

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,

AVIS CONSULTATIFS ET ORDONNANCES

APPLICATION DE LA CONVENTION

POUR LA PRÉVENTION ET LA RÉPRESSION

DU CRIME DE GÉNOCIDE

DANS LA BANDE DE GAZA

(AFRIQUE DU SUD c. ISRAËL)

DEMANDE EN INDICATION

DE MESURES CONSERVATOIRES

ORDONNANCE DU 26 JANVIER 2024

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,

ADVISORY OPINIONS AND ORDERS

APPLICATION OF THE CONVENTION

ON THE PREVENTION AND PUNISHMENT

OF THE CRIME OF GENOCIDE

IN THE GAZA STRIP

(SOUTH AFRICA v. ISRAEL)

REQUEST FOR THE INDICATION

OF PROVISIONAL MEASURES

ORDER OF 26 JANUARY 2024

2024

printed in france/imprimé en france

ISSN 0074-4441

ISBN 978-92-1-003218-6

e-ISBN 978-92-1-106626-5

Mode officiel de citation :

Application de la convention pour la prévention et la répression

du crime de génocide dans la bande de Gaza (Afrique du Sud c. Israël),

mesures conservatoires, ordonnance du 26 janvier 2024,

C.I.J. Recueil 2024, p. 3

Official citation:

Application of the Convention on the Prevention and Punishment

of the Crime of Genocide in the Gaza Strip (South Africa v. Israel),

Provisional Measures, Order of 26 January 2024,

I.C.J. Reports 2024, p. 3

Sales number

No de vente : 1313

APPLICATION DE LA CONVENTION

POUR LA PRÉVENTION ET LA RÉPRESSION

DU CRIME DE GÉNOCIDE

DANS LA BANDE DE GAZA

(AFRIQUE DU SUD c. ISRAËL)

DEMANDE EN INDICATION

DE MESURES CONSERVATOIRES

APPLICATION OF THE CONVENTION

ON THE PREVENTION AND PUNISHMENT

OF THE CRIME OF GENOCIDE

IN THE GAZA STRIP

(SOUTH AFRICA v. ISRAEL)

REQUEST FOR THE INDICATION

OF PROVISIONAL MEASURES

26 JANVIER 2024

ORDONNANCE

26 JANUARY 2024

ORDER

TABLE OF CONTENTS

Paragraphs

Chronology of the Procedure

I. Introduction

II. Prima Facie Jurisdiction

1. Preliminary observations

2. Existence of a dispute relating to the interpretation, application

or fulfilment of the Genocide Convention

3. Conclusion as to prima facie jurisdiction

III. Standing of South Africa

IV. The Rights whose Protection Is Sought and the Link

between such Rights and the Measures Requested

V. Risk of Irreparable Prejudice and Urgency

VI. Conclusion and Measures to Be Adopted

Operative Clause

1-12

13-14

15-32

15-18

19-30

31-32

33-34

35-59

60-74

75-84

INTERNATIONAL COURT OF JUSTICE

YEAR 2024

26 January 2024

APPLICATION OF THE CONVENTION

ON THE PREVENTION AND PUNISHMENT

OF THE CRIME OF GENOCIDE

IN THE GAZA STRIP

(SOUTH AFRICA v. ISRAEL)

REQUEST FOR THE INDICATION

OF PROVISIONAL MEASURES

ORDER

Present: President Donoghue; Vice-President Gevorgian; Judges Tomka,

Abraham, Bennouna, Yusuf, Xue, Sebutinde, Bhandari,

Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant;

Judges ad hoc Barak, Moseneke; Registrar Gautier.

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Articles 41 and 48 of the Statute of the Court and Art-

icles 73, 74 and 75 of the Rules of Court,

Makes the following Order:

1. On 29 December 2023, the Republic of South Africa (hereinafter “South

Africa”) filed in the Registry of the Court an Application instituting pro-

ceedings against the State of Israel (hereinafter “Israel”) concerning alleged

violations in the Gaza Strip of obligations under the Convention on the Pre-

2024

26 January

General List

No. 192

application of the genocide convention (order 26 I 24)

vention and Punishment of the Crime of Genocide (hereinafter the “Genocide

Convention” or the “Convention”).

2. At the end of its Application, South Africa

“respectfully requests the Court to adjudge and declare:

(1) that the Republic of South Africa and the State of Israel each have a

duty to act in accordance with their obligations under the Conven-

tion on the Prevention and Punishment of the Crime of Genocide, in

relation to the members of the Palestinian group, to take all reason-

able measures within their power to prevent genocide; and

(2) that the State of Israel:

(a) has breached and continues to breach its obligations under the

Genocide Convention, in particular the obligations provided

under Article I, read in conjunction with Article II, and Art-

icles III (a), III (b), III (c), III (d), III (e), IV, V and VI;

(b) must cease forthwith any acts and measures in breach of those

obligations, including such acts or measures which would be

capable of killing or continuing to kill Palestinians, or causing or

continuing to cause serious bodily or mental harm to Palestin-

ians or deliberately inflicting on their group, or continuing to

inflict on their group, conditions of life calculated to bring about

its physical destruction in whole or in part, and fully respect its

obligations under the Genocide Convention, in particular the

obligations provided under Articles I, III (a), III (b), III (c),

III (d), III (e), IV, V and VI;

commit genocide, directly and publicly inciting genocide,

attempting to commit genocide and complicit in genocide con-

trary to Articles I, III (a), III (b), III (c), III (d) and III (e) are

punished by a competent national or international tribunal, as

required by Articles I, IV, V and VI;

(d) to that end and in furtherance of those obligations arising under

Articles I, IV, V and VI, must collect and conserve evidence and

ensure, allow and/or not inhibit directly or indirectly the collec-

tion and conservation of evidence of genocidal acts committed

against Palestinians in Gaza, including such members of the

group displaced from Gaza;

(e) must perform the obligations of reparation in the interest of

Palestinian victims, including but not limited to allowing the

safe and dignified return of forcibly displaced and/or abducted

Palestinians to their homes, respect for their full human rights

application of the genocide convention (order 26 I 24)

and protection against further discrimination, persecution, and

other related acts, and provide for the reconstruction of what it

has destroyed in Gaza, consistent with the obligation to prevent

genocide under Article I; and

(f) must offer assurances and guarantees of non-repetition of viola-

tions of the Genocide Convention, in particular the obligations

provided under Articles I, III (a), III (b), III (c), III (d), III (e), IV,

V and VI.”

3. In its Application, South Africa seeks to found the Court’s jurisdiction

on Article 36, paragraph 1, of the Statute of the Court and on Article IX of

the Genocide Convention.

4. The Application contained a Request for the indication of provisional

measures submitted with reference to Article 41 of the Statute and to Art-

icles 73, 74 and 75 of the Rules of Court.

5. At the end of its Request, South Africa asked the Court to indicate the

following provisional measures:

“(1) The State of Israel shall immediately suspend its military operations

in and against Gaza.

(2) The State of Israel shall ensure that any military or irregular armed

units which may be directed, supported or influenced by it, as well

as any organisations and persons which may be subject to its con-

trol, direction or influence, take no steps in furtherance of the

military operations referred to [in] point (1) above.

(3) The Republic of South Africa and the State of Israel shall each, in

accordance with their obligations under the Convention on the Pre-

vention and Punishment of the Crime of Genocide, in relation to the

Palestinian people, take all reasonable measures within their power

to prevent genocide.

(4) 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 the Palestinian people as a group protected

by the Convention on the Prevention and Punishment of the Crime

of Genocide, desist from the commission of any and all acts within

the scope of Article II of the Convention, in particular:

(a) killing members of the group;

(b) causing serious bodily or mental harm to the members of the

group;

to bring about its physical destruction in whole or in part; and

(d) imposing measures intended to prevent births within the group.

application of the genocide convention (order 26 I 24)

(5) The State of Israel shall, pursuant to point (4) (c) above, in relation

to Palestinians, desist from, and take all measures within its power

including the rescinding of relevant orders, of restrictions and/or of

prohibitions to prevent:

(a) the expulsion and forced displacement from their homes;

(b) the deprivation of:

(i) access to adequate food and water;

(ii) access to humanitarian assistance, including access to ade-

quate fuel, shelter, clothes, hygiene and sanitation;

(iii) medical supplies and assistance; and

(6) The State of Israel shall, in relation to Palestinians, ensure that its

military, as well as any irregular armed units or individuals which

may be directed, supported or otherwise influenced by it and

any organizations and persons which may be subject to its control,

direction or influence, do not commit any acts described in (4) and

(5) above, or engage in direct and public incitement to commit geno-

cide, conspiracy to commit genocide, attempt to commit genocide,

or complicity in genocide, and insofar as they do engage therein,

that steps are taken towards their punishment pursuant to Articles I,

II, III and IV of the Convention on the Prevention and Punishment

of the Crime of Genocide.

(7) The State of Israel shall take effective measures to prevent the

destruction and ensure the preservation of evidence related to alle-

gations of acts within the scope of Article II of the Convention on

the Prevention and Punishment of the Crime of Genocide; to that

end, the State of Israel shall not act to deny or otherwise restrict

access by fact-finding missions, international mandates and other

bodies to Gaza to assist in ensuring the preservation and retention

of said evidence.

(8) The State of Israel shall submit a report to the Court on all measures

taken to give effect to this Order within one week, as from the date

of this Order, and thereafter at such regular intervals as the Court

shall order, until a final decision on the case is rendered by the

Court.

(9) The State of Israel shall refrain from any action and shall ensure that

no action is taken which might aggravate or extend the dispute

before the Court or make it more difficult to resolve.”

application of the genocide convention (order 26 I 24)

6. The Deputy-Registrar immediately communicated to the Government

of Israel the Application containing the Request for the indication of provi-

sional measures, in accordance with Article 40, paragraph 2, of the Statute

of the Court and Article 73, paragraph 2, of the Rules of Court. He also noti-

fied the Secretary-General of the United Nations of the filing by South Africa

of the Application and the Request for the indication of provisional

measures.

7. Pending the notification provided for by Article 40, paragraph 3, of the

Statute of the Court, the Deputy-Registrar informed all States entitled to

appear before the Court of the filing of the Application and the Request for

the indication of provisional measures by a letter dated 3 January 2024.

8. Since the Court included upon the Bench no judge of the nationality of

either Party, each Party proceeded to exercise the right conferred upon it

by Article 31 of the Statute of the Court to choose a judge ad hoc to sit in

the case. South Africa chose Mr Dikgang Ernest Moseneke and Israel

Mr Aharon Barak.

9. By letters dated 29 December 2023, the Deputy-Registrar informed the

Parties that, pursuant to Article 74, paragraph 3, of its Rules, the Court had

fixed 11 and 12 January 2024 as the dates for the oral proceedings on the

request for the indication of provisional measures.

10. At the public hearings, oral observations on the request for the indica-

tion of provisional measures were presented by:

On behalf of South Africa: HE Mr Vusimuzi Madonsela,

HE Mr Ronald Lamola,

Ms Adila Hassim,

Mr Tembeka Ngcukaitobi,

Mr John Dugard,

Mr Max du Plessis,

Ms Blinne Ní Ghrálaigh,

Mr Vaughan Lowe.

On behalf of Israel:

Mr Tal Becker,

Mr Malcolm Shaw,

Ms Galit Raguan,

Mr Omri Sender,

Mr Christopher Staker,

Mr Gilad Noam.

11. At the end of its oral observations, South Africa asked the Court to

indicate the following provisional measures:

“(1) The State of Israel shall immediately suspend its military operations

in and against Gaza.

(2) The State of Israel shall ensure that any military or irregular armed

units which may be directed, supported or influenced by it, as well

as any organisations and persons which may be subject to its con-

application of the genocide convention (order 26 I 24)

trol, direction or influence, take no steps in furtherance of the

military operations referred to [in] point (1) above.

(3) The Republic of South Africa and the State of Israel shall each, in

accordance with their obligations under the Convention on the Pre-

vention and Punishment of the Crime of Genocide, in relation to the

Palestinian people, take all reasonable measures within their power

to prevent genocide.

(4) 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 the Palestinian people as a group protected

by the Convention on the Prevention and Punishment of the Crime

of Genocide, desist from the commission of any and all acts within

the scope of Article II of the Convention, in particular:

(a) killing members of the group;

(b) causing serious bodily or mental harm to the members of the

group;

to bring about its physical destruction in whole or in part;

and

(d) imposing measures intended to prevent births within the group.

(5) The State of Israel shall, pursuant to point (4) (c) above, in relation

to Palestinians, desist from, and take all measures within its power

including the rescinding of relevant orders, of restrictions and/or of

prohibitions to prevent:

(a) the expulsion and forced displacement from their homes;

(b) the deprivation of:

(i) access to adequate food and water;

(ii) access to humanitarian assistance, including access to

adequate fuel, shelter, clothes, hygiene and sanitation;

(iii) medical supplies and assistance; and

(6) The State of Israel shall, in relation to Palestinians, ensure that its

military, as well as any irregular armed units or individuals which

may be directed, supported or otherwise influenced by it and any

organizations and persons which may be subject to its control, direc-

tion or influence, do not commit any acts described in [points] (4)

and (5) above, or engage in direct and public incitement to commit

genocide, conspiracy to commit genocide, attempt to commit geno-

cide, or complicity in genocide, and insofar as they do engage

therein, that steps are taken towards their punishment pursuant to

application of the genocide convention (order 26 I 24)

Articles I, II, III and IV of the Convention on the Prevention and

Punishment of the Crime of Genocide.

(7) The State of Israel shall take effective measures to prevent the

destruction and ensure the preservation of evidence related to alle-

gations of acts within the scope of Article II of the Convention on

the Prevention and Punishment of the Crime of Genocide; to that

end, the State of Israel shall not act to deny or otherwise restrict

access by fact-finding missions, international mandates and other

bodies to Gaza to assist in ensuring the preservation and retention

of said evidence.

(8) The State of Israel shall submit a report to the Court on all measures

taken to give effect to this Order within one week, as from the date

of this Order, and thereafter at such regular intervals as the Court

shall order, until a final decision on the case is rendered by the

Court, and that such reports shall be published by the Court.

(9) The State of Israel shall refrain from any action and shall ensure that

no action is taken which might aggravate or extend the dispute

before the Court or make it more difficult to resolve.”

12. At the end of its oral observations, Israel requested the Court to

“(1) [r]eject the request for the indication of provisional measures sub-

mitted by South Africa; and

(2) [r]emove the case from the General List”.

* *

I. Introduction

13. The Court begins by recalling the immediate context in which the

present case came before it. 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 civil-

ian infrastructure and the displacement of the overwhelming majority of the

population in Gaza (see paragraph 46 below). The Court is acutely aware of

the extent of the human tragedy that is unfolding in the region and is deeply

concerned about the continuing loss of life and human suffering.

application of the genocide convention (order 26 I 24)

14. The ongoing conflict in Gaza has been addressed in the framework

of several organs and specialized agencies of the United Nations. In particu-

lar, resolutions have been adopted by the General Assembly of the United

Nations (see resolution A/RES/ES-10/21 adopted on 27 October 2023 and

resolution A/RES/ES-10/22 adopted on 12 December 2023) and by the

Security Council (see resolution S/RES/2712 (2023) adopted on 15 November

2023 and resolution S/RES/2720 (2023) adopted on 22 December 2023),

referring to many aspects of the conflict. The scope of the present case

submitted to the Court, however, is limited, as South Africa has instituted

these proceedings under the Genocide Convention.

II. Prima Facie Jurisdiction

1. Preliminary Observations

15. The Court may indicate provisional measures only if the provisions

relied on by the applicant appear, prima facie, to afford a basis on which its

jurisdiction could be founded, but it need not satisfy itself in a definitive

manner that it has jurisdiction as regards the merits of the case (see Allega-

tions of Genocide under the Convention on the Prevention and Punishment

of the Crime of Genocide (Ukraine v. Russian Federation), Provisional

Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), pp. 217-218,

para. 24).

16. In the present case, South Africa seeks to found the jurisdiction of the

Court on Article 36, paragraph 1, of the Statute of the Court and on Art-

icle IX of the Genocide Convention (see paragraph 3 above). The Court must

therefore first determine whether those provisions prima facie confer upon

it jurisdiction to rule on the merits of the case, enabling it — if the other

necessary conditions are fulfilled — to indicate provisional measures.

17. Article IX of Genocide Convention provides:

“Disputes between the Contracting Parties relating to the interpreta-

tion, application or fulfilment of the present Convention, including those

relating to the responsibility of a State for genocide or for any of the other

acts enumerated in article III, shall be submitted to the International

Court of Justice at the request of any of the parties to the dispute.”

18. South Africa and Israel are parties to the Genocide Convention. Israel

deposited its instrument of ratification on 9 March 1950 and South Africa

deposited its instrument of accession on 10 December 1998. Neither of the

Parties has entered a reservation to Article IX or any other provision of the

Convention.

application of the genocide convention (order 26 I 24)

2. Existence of a Dispute relating to the Interpretation, Application

or Fulfilment of the Genocide Convention

19. Article IX of the Genocide Convention makes the Court’s jurisdiction

conditional on the existence of a dispute relating to the interpretation, appli-

cation or fulfilment of the Convention. A dispute is “a disagreement on a

point of law or fact, a conflict of legal views or of interests” between parties

(Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J.,

Series A, No. 2, p. 11). In order for a dispute to exist, “[i]t must be shown

that the claim of one party is positively opposed by the other” (South West

Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary

Objections, Judgment, I.C.J. Reports 1962, p. 328). The two sides must

“‘hold clearly opposite views concerning the question of the performance or

non-performance of certain’ international obligations” (Alleged Violations

of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.

Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 26,

para. 50, citing Interpretation of Peace Treaties with Bulgaria, Hun-

gary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950,

p. 74). To determine whether a dispute exists in the present case, the Court

cannot limit itself to noting that one of the Parties maintains that the Con-

vention applies, while the other denies it (see Allegations of Genocide under

the Convention on the Prevention and Punishment of the Crime of Genocide

(Ukraine v. Russian Federation), Provisional Measures, Order of 16 March

2022, I.C.J. Reports 2022 (I), pp. 218-219, para. 28).

20. Since South Africa has invoked as the basis of the Court’s jurisdiction

the compromissory clause of the Genocide Convention, the Court must also

ascertain, at the present stage of the proceedings, whether it appears that the

acts and omissions complained of by the Applicant are capable of falling

within the scope of that convention ratione materiae (see Allegations of

Genocide under the Convention on the Prevention and Punishment of the

Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures,

Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 219, para. 29).

* *

21. South Africa contends that a dispute exists with Israel relating to the

interpretation, application and fulfilment of the Genocide Convention. It

asserts that, prior to the filing of its Application, South Africa repeatedly

and urgently voiced its concerns, in public statements and in various multi-

lateral settings, including the United Nations Security Council and General

Assembly, that Israel’s actions in Gaza amount to genocide against the

Palestinian people. In particular, as indicated in a media statement issued

on 10 November 2023 by the Department of International Relations and

Cooperation of South Africa, the Director-General of the Department met

with the Ambassador of Israel to South Africa on 9 November 2023 and

application of the genocide convention (order 26 I 24)

informed him that, while South Africa “condemned the attacks on civilians

by Hamas”, it considered Israel’s response to the attack of 7 October 2023

to be unlawful and it intended to refer the situation in Palestine to the

International Criminal Court, calling for investigation of the leadership of

Israel for war crimes, crimes against humanity and genocide. Furthermore,

at the resumed 10th emergency special session of the United Nations Gen-

eral Assembly on 12 December 2023, at which Israel was represented, the

South African representative to the United Nations stated specifically that

“the events of the past six weeks in Gaza have illustrated that Israel is acting

contrary to its obligations in terms of the Genocide Convention”. The Appli-

cant considers that the dispute between the Parties had already crystallized

at that time. According to South Africa, Israel denied the accusation of

genocide in a document published by its Ministry of Foreign Affairs on

6 December 2023 and updated on 8 December 2023, entitled “Hamas-Israel

Conflict 2023: Frequently Asked Questions”, stating in particular that “[t]he

accusation of genocide against Israel is not only wholly unfounded as a

matter of fact and law, it is morally repugnant”. The Applicant also men-

tions that, on 21 December 2023, the Department of International Relations

and Cooperation of South Africa sent a Note Verbale to the Embassy of

Israel in Pretoria. It claims that, in this Note Verbale, it reiterated its view

that Israel’s acts in Gaza amounted to genocide and that South Africa was

under an obligation to prevent genocide from being committed. The Appli-

cant states that Israel responded by a Note Verbale dated 27 December

2023. It submits however that Israel, in that Note Verbale, failed to address

the issues raised by South Africa.

22. The Applicant further submits that at least some, if not all, of the acts

committed by Israel in Gaza, in the wake of the attack of 7 October 2023, fall

within the provisions of the Genocide Convention. It alleges that, in contra-

vention of Article I of the Convention, Israel “has perpetrated and is

perpetrating genocidal acts identified in Article II” of the Convention and

that “Israel, its officials and/or agents, have acted with the intent to destroy

Palestinians in Gaza, part of a protected group under the Genocide Conven-

tion”. The acts in question, according to South Africa, include killing

Palestinians in Gaza, causing them serious bodily and mental harm, inflict-

ing on them conditions of life calculated to bring about their physical

destruction, and the forcible displacement of people in Gaza. South Africa

further alleges that Israel

“has . . . failed to prevent or to punish: genocide, conspiracy to commit

genocide, direct and public incitement to genocide, attempted genocide

application of the genocide convention (order 26 I 24)

and complicity in genocide, contrary to Articles III and IV of the Geno-

cide Convention”.

23. Israel contends that South Africa has failed to demonstrate the prima

facie jurisdiction of the Court under Article IX of the Genocide Convention.

It first argues that there is no dispute between the Parties because South

Africa did not give Israel a reasonable opportunity to respond to the allega-

tions of genocide before South Africa filed its Application. Israel submits

that, on the one hand, South Africa’s public statements accusing Israel of

genocide and the referral of the situation in Palestine to the International

Criminal Court and, on the other hand, the document published by the Israeli

Ministry of Foreign Affairs, which was not addressed directly or even indir-

ectly to South Africa, are not sufficient to prove the existence of a “positive

opposition” of views, as required by the Court’s jurisprudence. The Respon-

dent emphasizes that, in the Note Verbale from the Embassy of Israel in

Pretoria to the Department of International Relations and Cooperation of

South Africa, dated 27 December 2023, in response to South Africa’s Note

Verbale, dated 21 December 2023, Israel had suggested a meeting between

the Parties to discuss the issues raised by South Africa, but argues that this

attempt to open a dialogue was ignored by South Africa at the relevant time.

Israel considers that South Africa’s unilateral assertions against Israel, in the

absence of any bilateral interaction between the two States prior to the filing

of the Application, do not suffice to establish the existence of a dispute in

accordance with Article IX of the Genocide Convention.

24. Israel further argues that the acts complained of by South Africa are

not capable of falling within the provisions of the Genocide Convention

because the necessary specific intent to destroy, in whole or in part, the

Palestinian people as such has not been proved, even on a prima facie basis.

According to Israel, in the aftermath of the atrocities committed on

7 October 2023, facing indiscriminate rocket attacks by Hamas against

Israel, it acted with the intention to defend itself, to terminate the threats

against it and to rescue the hostages. Israel adds moreover that its practices

of mitigating civilian harm and of facilitating humanitarian assistance

demonstrate the absence of any genocidal intent. Israel asserts that any

careful review of the official decisions in relation to the conflict in Gaza

made by the relevant authorities in Israel since the outbreak of the war, in

particular the decisions made by the Ministerial Committee on National

Security Affairs and the War Cabinet, as well as by the Operations Direct-

orate of the Israel Defense Forces, shows the emphasis placed on the need to

avoid harm to civilians and to facilitate humanitarian aid. In its view, it is

thus clearly demonstrated that such decisions lacked genocidal intent.

* *

application of the genocide convention (order 26 I 24)

25. The Court recalls that, for the purposes of deciding whether a dispute

existed between the Parties at the time of the filing of the Application, it

takes into account in particular any statements or documents exchanged

between the Parties, as well as any exchanges made in multilateral settings.

In so doing, it pays special attention to the author of the statement or docu-

ment, its intended or actual addressee and its content. The existence of a

dispute is a matter for objective determination by the Court; it is a matter of

substance, and not a question of form or procedure (see Allegations of

Genocide under the Convention on the Prevention and Punishment of the

Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures,

Order of 16 March 2022, I.C.J. Reports 2022 (I), pp. 220-221, para. 35).

26. The Court notes that South Africa issued public statements in various

multilateral and bilateral settings in which it expressed its view that, in

light of the nature, scope and extent of Israel’s military operations in Gaza,

Israel’s actions amounted to violations of its obligations under the Genocide

Convention. For instance, at the resumed 10th emergency special session of

the United Nations General Assembly on 12 December 2023, at which Israel

was represented, the South African representative to the United Nations

stated that “the events of the past six weeks in Gaza have illustrated that

Israel is acting contrary to its obligations in terms of the Genocide Conven-

tion”. South Africa recalled this statement in its Note Verbale of 21 Decem-

ber 2023 to the Embassy of Israel in Pretoria.

27. The Court notes that Israel dismissed any accusation of genocide in

the context of the conflict in Gaza in a document published by the Israeli

Ministry of Foreign Affairs on 6 December 2023 which was subsequently

updated and reproduced on the website of the Israel Defense Forces on

15 December 2023 under the title “The War against Hamas: Answering

Your Most Pressing Questions”, stating that “[t]he accusation of genocide

against Israel is not only wholly unfounded as a matter of fact and law, it is

morally repugnant”. In the document, Israel also stated that “[t]he accusation

of genocide . . . is not just legally and factually incoherent, it is obscene” and

that there was “no . . . valid basis, in fact or law, for the outrageous charge of

genocide”.

28. In light of the above, the Court considers that the Parties appear to

hold clearly opposite views as to whether certain acts or omissions allegedly

committed by Israel in Gaza amount to violations by the latter of its

obligations under the Genocide Convention. The Court finds that the

above-mentioned elements are sufficient at this stage to establish prima facie

the existence of a dispute between the Parties relating to the interpretation,

application or fulfilment of the Genocide Convention.

application of the genocide convention (order 26 I 24)

29. As to whether the acts and omissions complained of by the Applicant

appear to be capable of falling within the provisions of the Genocide Con-

vention, the Court recalls that South Africa considers Israel to be responsible

for committing genocide in Gaza and for failing to prevent and punish geno-

cidal acts. South Africa contends that Israel has also violated other obligations

under the Genocide Convention, including those concerning “conspiracy to

commit genocide, direct and public incitement to genocide, attempted geno-

cide and complicity in genocide”.

30. At the present stage of the proceedings, the Court is not required to

ascertain whether any violations of Israel’s obligations under the Genocide

Convention have occurred. Such a finding could be made by the Court only

at the stage of the examination of the merits of the present case. As already

noted (see paragraph 20 above), at the stage of making an order on a request

for the indication of provisional measures, the Court’s task is to establish

whether the acts and omissions complained of by the applicant appear to be

capable of falling within the provisions of the Genocide Convention (cf. Alle-

gations of Genocide under the Convention on the Prevention and Punishment

of the Crime of Genocide (Ukraine v. Russian Federation), Provisional

Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 222, para. 43).

In the Court’s view, at least 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.

3. Conclusion as to Prima Facie Jurisdiction

31. In light of the foregoing, the Court concludes that, prima facie, it has

jurisdiction pursuant to Article IX of the Genocide Convention to entertain

the case.

32. Given the above conclusion, the Court considers that it cannot accede

to Israel’s request that the case be removed from the General List.

III. Standing of South Africa

33. The Court notes that the Respondent did not challenge the standing of

the Applicant in the present proceedings. It recalls that, in the case concern-

ing 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 observed that all the States parties

to the Convention have a common interest to ensure the prevention, suppres-

sion and punishment of genocide, by committing themselves to fulfilling the

obligations contained in the Convention. Such a common interest implies

that the obligations in question are owed by any State party to all the other

application of the genocide convention (order 26 I 24)

States parties to the relevant convention; they are obligations erga omnes

partes, in the sense that each State party has an interest in compliance with

them in any given case. The common interest in compliance with the rele-

vant obligations under the Genocide Convention entails that any State party,

without distinction, is entitled to invoke the responsibility of another State

party for an alleged breach of its obligations erga omnes partes. Accord-

ingly, the Court found that any State party to the Genocide Convention may

invoke the responsibility of another State party, including through the insti-

tution of proceedings before the Court, with a view to determining the

alleged failure to comply with its obligations erga omnes partes under

the Convention and to bringing that failure to an end (Application of the

Convention on the Prevention and Punishment of the Crime of Genocide

(The Gambia v. Myanmar), Preliminary Objections, Judgment, I.C.J.

Reports 2022 (II), pp. 515-517, paras. 107-108 and 112).

34. The Court concludes, prima facie, that South Africa has standing to

submit to it the dispute with Israel concerning alleged violations of obliga-

tions under the Genocide Convention.

IV. The Rights whose Protection Is Sought and the Link

between such Rights and the Measures Requested

35. The power of the Court to indicate provisional measures under Art-

icle 41 of the Statute has as its object the preservation of the respective rights

claimed by the parties in a case, pending its decision on the merits thereof.

It follows that the Court must be concerned to preserve by such measures

the rights which may subsequently be adjudged by it to belong to either

party. Therefore, the Court may exercise this power only if it is satisfied that

the rights asserted by the party requesting such measures are at least plaus-

ible (see, for example, Allegations of Genocide under the Convention on the

Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian

Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports

2022 (I), p. 223, para. 50).

36. At this stage of the proceedings, however, the Court is not called upon

to determine definitively whether the rights which South Africa wishes to

see protected exist. It need only decide whether the rights claimed by South

Africa, and for which it is seeking protection, are plausible. Moreover, a link

must exist between the rights whose protection is sought and the provisional

measures being requested (Allegations of Genocide under the Convention on

the Prevention and Punishment of the Crime of Genocide (Ukraine v.

Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J.

Reports 2022 (I), p. 224, para. 51).

* *

application of the genocide convention (order 26 I 24)

37. South Africa argues that it seeks to protect the rights of the Pales-

tinians in Gaza, as well as its own rights under the Genocide Convention. It

refers to the rights of the Palestinians in the Gaza Strip to be protected from

acts of genocide, attempted genocide, direct and public incitement to com-

mit genocide, complicity in genocide and conspiracy to commit genocide.

The Applicant argues that the Convention prohibits the destruction of a

group or part thereof, and states that Palestinians in the Gaza Strip, because

of their membership in a group, “are protected by the Convention, as is the

group itself”. South Africa also argues that it seeks to protect its own right

to safeguard compliance with the Genocide Convention. South Africa con-

tends that the rights in question are “at least plausible”, since they are

“grounded in a possible interpretation” of the Genocide Convention.

38. South Africa submits that the evidence before the Court “shows incon-

trovertibly a pattern of conduct and related intention that justifies a plausible

claim of genocidal acts”. It alleges, in particular, the commission of the fol-

lowing acts with genocidal intent: killing, causing serious bodily and mental

harm, 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. According to South Africa, genocidal

intent is evident from the way in which Israel’s military attack is being con-

ducted, from the clear pattern of conduct of Israel in Gaza and from the

statements made by Israeli officials in relation to the military operation in

the Gaza Strip. The Applicant also contends that “[t]he intentional failure of

the Government of Israel to condemn, prevent and punish such genocidal

incitement constitutes in itself a grave violation of the Genocide Conven-

tion”. South Africa stresses that any stated intention by the Respondent to

destroy Hamas does not preclude genocidal intent by Israel towards the

whole or part of the Palestinian people in Gaza.

39. Israel states that, at the provisional measures stage, the Court must

establish that the rights claimed by the parties in a case are plausible, but

“[s]imply declaring that claimed rights are plausible is insufficient”. Accord-

ing to the Respondent, the Court has also to consider the claims of fact in the

relevant context, including the question of the possible breach of the rights

claimed.

40. Israel submits that the appropriate legal framework for the conflict in

Gaza is that of international humanitarian law and not the Genocide Conven-

tion. It argues that, in situations of urban warfare, civilian casualties may be

an unintended consequence of lawful use of force against military objects,

and do not constitute genocidal acts. Israel considers that South Africa

has misrepresented the facts on the ground and observes that its efforts to

application of the genocide convention (order 26 I 24)

mitigate harm when conducting operations and to alleviate hardship and

suffering through humanitarian activities in Gaza serve to dispel  or at

the very least, militate against  any allegation of genocidal intent. Accord-

ing to the Respondent, the statements of Israeli officials presented by South

Africa are “misleading at best” and “not in conformity with government

policy”. Israel also called attention to its Attorney General’s recent announce-

ment that “[a]ny statement calling, inter alia, for intentional harm to

civilians . . . may amount to a criminal offense, including the offense of

incitement” and that “[c]urrently, several such cases are being examined by

Israeli law enforcement authorities”. In Israel’s view, neither those state-

ments nor its pattern of conduct in the Gaza Strip give rise to a “plausible

inference” of genocidal intent. In any event, Israel contends, since the pur-

pose of provisional measures is to preserve the rights of both parties, the

Court must, in the present case, consider and “balance” the respective rights

of South Africa and Israel. The Respondent emphasizes that it bears the

responsibility to protect its citizens, including those captured and held hos-

tage as a result of the attack that took place on 7 October 2023. As a

consequence, it claims that its right to self-defence is critical to any evalua-

tion of the present situation.

* *

41. The Court recalls that, in accordance with Article I of the Convention,

all States parties thereto have undertaken “to prevent and to punish” the

crime of genocide. Article II provides that

“genocide means any of the following acts committed with intent to

destroy, in whole or in part, a national, ethnical, racial or religious group,

as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group”.

42. Pursuant to Article III of the Genocide Convention, the following

acts are also prohibited by the Convention: conspiracy to commit genocide

(Article III, paragraph (b)), direct and public incitement to commit genocide

(Article III, paragraph (c)), attempt to commit genocide (Article III, para-

graph (d)) and complicity in genocide (Article III, paragraph (e)).

43. The provisions of the Convention are intended to protect the members

of a national, ethnical, racial or religious group from acts of genocide or any

application of the genocide convention (order 26 I 24)

other punishable acts enumerated in Article III. The Court considers that

there is a correlation between the rights of members of groups protected

under the Genocide Convention, the obligations incumbent on States parties

thereto, and the right of any State party to seek compliance therewith by

another State party (Application of the Convention on the Prevention and

Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional

Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 20, para. 52).

44. The Court recalls that, in order for acts to fall within the scope of Art-

icle II of the Convention,

“the intent must be to destroy at least a substantial part of the particular

group. That is demanded by the very nature of the crime of genocide:

since the object and purpose of the Convention as a whole is to prevent

the intentional destruction of groups, the part targeted must be signifi-

cant enough to have an impact on the group as a whole.” (Application of

the Convention on the Prevention and Punishment of the Crime of Geno-

cide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment,

I.C.J. Reports 2007 (I), p. 126, para. 198.)

45. The Palestinians appear to constitute a distinct “national, ethnical,

racial or religious group”, and hence a protected group within the meaning

of Article II of the Genocide Convention. The Court observes that, accord-

ing to United Nations sources, the Palestinian population of the Gaza Strip

comprises over 2 million people. Palestinians in the Gaza Strip form a sub-

stantial part of the protected group.

46. The Court notes that the military operation being conducted by Israel

following the attack of 7 October 2023 has 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. While figures relating to the Gaza Strip cannot

be independently verified, recent information indicates that 25,700 Palestin-

ians have been killed, over 63,000 injuries have been reported, over

360,000 housing units have been destroyed or partially damaged and approxi-

mately 1.7 million persons have been internally displaced (see United

Nations Office for the Coordination of Humanitarian Affairs (OCHA), “Hos-

tilities in the Gaza Strip and Israel  reported impact, Day 109” (24 Janu-

ary 2024)).

47. The Court takes note, in this regard, of the statement made by the

United Nations Under-Secretary-General for Humanitarian Affairs and

Emergency Relief Coordinator, Mr Martin Griffiths, on 5 January 2024:

“Gaza has become a place of death and despair.

. . . Families are sleeping in the open as temperatures plummet. Areas

where civilians were told to relocate for their safety have come under

bombardment. Medical facilities are under relentless attack. The few

hospitals that are partially functional are overwhelmed with trauma

application of the genocide convention (order 26 I 24)

cases, critically short of all supplies, and inundated by desperate people

seeking safety.

A public health disaster is unfolding. Infectious diseases are spread-

ing in overcrowded shelters as sewers spill over. Some 180 Palestinian

women are giving birth daily amidst this chaos. People are facing the

highest levels of food insecurity ever recorded. Famine is around the

corner.

For children in particular, the past 12 weeks have been traumatic: No

food. No water. No school. Nothing but the terrifying sounds of war, day

in and day out.

Gaza has simply become uninhabitable. Its people are witnessing

daily threats to their very existence — while the world watches on.”

(OCHA, “UN relief chief: The war in Gaza must end”, Statement by

Martin Griffiths, Under-Secretary-General for Humanitarian Affairs

and Emergency Relief Coordinator, 5 January 2024.)

48. Following a mission to North Gaza, the World Health Organization

(WHO) reported that, as of 21 December 2023:

“An unprecedented 93% of the population in Gaza is facing crisis

levels of hunger, with insufficient food and high levels of malnutrition.

At least 1 in 4 households are facing ‘catastrophic conditions’: experi-

encing an extreme lack of food and starvation and having resorted to

selling off their possessions and other extreme measures to afford a sim-

ple meal. Starvation, destitution and death are evident.” (WHO, “Lethal

combination of hunger and disease to lead to more deaths in Gaza”,

21 December 2023; see also World Food Programme, “Gaza on the

brink as one in four people face extreme hunger”, 20 December 2023.)

49. The Court further notes the statement issued by the Commissioner-

General of the United Nations Relief and Works Agency for Palestine Refu-

gees in the Near East (UNRWA), Mr Philippe Lazzarini, on 13 January

2024:

“It’s been 100 days since the devastating war started, killing and dis-

placing people in Gaza, following the horrific attacks that Hamas and

other groups carried out against people in Israel. It’s been 100 days of

ordeal and anxiety for hostages and their families.

In the past 100 days, sustained bombardment across the Gaza Strip

caused the mass displacement of a population that is in a state of flux 

constantly uprooted and forced to leave overnight, only to move to

places which are just as unsafe. This has been the largest displacement

of the Palestinian people since 1948.

application of the genocide convention (order 26 I 24)

This war affected more than 2 million people  the entire population

of Gaza. Many will carry lifelong scars, both physical and psycho-

logical. The vast majority, including children, are deeply traumatized.

Overcrowded and unsanitary UNRWA shelters have now become

‘home’ to more than 1.4 million people. They lack everything, from food

to hygiene to privacy. People live in inhumane conditions, where dis-

eases are spreading, including among children. They live through the

unliveable, with the clock ticking fast towards famine.

The plight of children in Gaza is especially heartbreaking. An entire

generation of children is traumatized and will take years to heal. Thou-

sands have been killed, maimed, and orphaned. Hundreds of thousands

are deprived of education. Their future is in jeopardy, with far-reaching

and long-lasting consequences.” (UNRWA, “The Gaza Strip: 100 days

of death, destruction and displacement”, Statement by Philippe Lazza-

rini, Commissioner-General of UNRWA, 13 January 2024.)

50. The UNRWA Commissioner-General also stated that the crisis in

Gaza is “compounded by dehumanizing language” (UNRWA, “The Gaza

Strip: 100 days of death, destruction and displacement”, Statement by

Philippe Lazzarini, Commissioner-General of UNRWA, 13 January 2024).

51. In this regard, the Court has taken note of a number of statements made

by senior Israeli officials. It calls attention, in particular, to the following

examples.

52. On 9 October 2023, Mr Yoav Gallant, Defence Minister of Israel,

announced that he had ordered a “complete siege” of Gaza City and that

there would be “no electricity, no food, no fuel” and that “everything [was]

closed”. On the following day, Minister Gallant stated, speaking to Israeli

troops on the Gaza border:

“I have released all restraints . . . You saw what we are fighting against.

We are fighting human animals. This is the ISIS of Gaza. This is what

we are fighting against . . . Gaza won’t return to what it was before.

There will be no Hamas. We will eliminate everything. If it doesn’t take

one day, it will take a week, it will take weeks or even months, we will

reach all places.”

On 12 October 2023, Mr Isaac Herzog, President of Israel, stated, referring

to Gaza:

“We are working, operating militarily according to rules of interna-

tional law. Unequivocally. It is an entire nation out there that is resp-

onsible. It is not true this rhetoric about civilians not aware, not involved.

It is absolutely not true. They could have risen up. They could have

fought against that evil regime which took over Gaza in a coup d’état.

application of the genocide convention (order 26 I 24)

But we are at war. We are at war. We are at war. We are defending our

homes. We are protecting our homes. That’s the truth. And when a nation

protects its home, it fights. And we will fight until we’ll break their

backbone.”

On 13 October 2023, Mr Israel Katz, then Minister of Energy and Infra-

structure of Israel, stated on X (formerly Twitter):

“We will fight the terrorist organization Hamas and destroy it. All the

civilian population in [G]aza is ordered to leave immediately. We will

win. They will not receive a drop of water or a single battery until they

leave the world.”

53. The Court also takes note of a press release of 16 November 2023,

issued by 37 Special Rapporteurs, Independent Experts and members of

Working Groups part of the Special Procedures of the United Nations

Human Rights Council, in which they voiced alarm over “discernibly geno-

cidal and dehumanising rhetoric coming from senior Israeli government

officials”. In addition, on 27 October 2023, the United Nations Committee on

the Elimination of Racial Discrimination observed that it was “[h]ighly con-

cerned about the sharp increase in racist hate speech and dehumanization

directed at Palestinians since 7 October”.

54. In the Court’s view, the facts and circumstances mentioned above

are sufficient to conclude that at least some of the rights claimed by South

Africa and for which it is seeking protection are plausible. This is the case

with respect to the right of the Palestinians in Gaza to be protected from acts

of genocide and related prohibited acts identified in Article III, and the right

of South Africa to seek Israel’s compliance with the latter’s obligations under

the Convention.

55. The Court now turns to the condition of the link between the plausible

rights claimed by South Africa and the provisional measures requested.

* *

56. South Africa considers that a link exists between the rights whose

protection is sought and the provisional measures it requests. It contends, in

particular, that the first six provisional measures were requested to ensure

compliance by Israel with its obligations under the Genocide Convention,

while the last three are aimed at protecting the integrity of the proceedings

before the Court and South Africa’s right to have its claim fairly adju-

dicated.

57. Israel considers that the measures requested go beyond what is neces-

sary to protect rights on an interim basis and therefore have no link with the

application of the genocide convention (order 26 I 24)

rights sought to be protected. The Respondent contends, inter alia, that

granting the first and second measures sought by South Africa (see para-

graph 11 above) would reverse the Court’s case law, as those measures would

be “for the protection of a right that could not form the basis of a judgment

in exercise of jurisdiction under the Genocide Convention”.

* *

58. The Court has already found (see paragraph 54 above) that at least

some of the rights asserted by South Africa under the Genocide Convention

are plausible.

59. The Court considers that, by their very nature, at least some of the pro-

visional measures sought by South Africa are aimed at preserving the

plausible rights it asserts on the basis of the Genocide Convention in the

present case, namely the right of the Palestinians in Gaza to be protected

from acts of genocide and related prohibited acts mentioned in Article III,

and the right of South Africa to seek Israel’s compliance with the latter’s

obligations under the Convention. Therefore, a link exists between the rights

claimed by South Africa that the Court has found to be plausible, and at least

some of the provisional measures requested.

V. Risk of Irreparable Prejudice and Urgency

60. The Court, pursuant to Article 41 of its Statute, has the power to indi-

cate provisional measures when irreparable prejudice could be caused to

rights which are the subject of judicial proceedings or when the alleged dis-

regard of such rights may entail irreparable consequences (see, for example,

Allegations of Genocide under the Convention on the Prevention and Pun-

ishment of the Crime of Genocide (Ukraine v. Russian Federation),

Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I),

p. 226, para. 65).

61. However, the power of the Court 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 Court 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 Court makes a final decision on the case (Allegations of

Genocide under the Convention on the Prevention and Punishment of the

Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures,

Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 227, para. 66). The Court

must therefore consider whether such a risk exists at this stage of the

proceedings.

application of the genocide convention (order 26 I 24)

62. The Court is not called upon, for the purposes of its decision on the

request for the indication of provisional measures, to establish the existence

of breaches of obligations under the Genocide Convention, but to determine

whether the circumstances require the indication of provisional measures for

the protection of rights under that instrument. As already noted, the Court

cannot at this stage make definitive findings of fact (see paragraph 30 above),

and the right of each Party to submit arguments in respect of the merits

remains unaffected by the Court’s decision on the request for the indication

of provisional measures.

* *

63. South Africa submits that there is a clear risk of irreparable prejudice

to the rights of the Palestinians in Gaza and to its own rights under the Geno-

cide Convention. It asserts that the Court has repeatedly found that the

criterion of irreparable prejudice is satisfied where serious risks arise to

human life or other fundamental rights. According to the Applicant, daily

statistics stand as clear evidence of urgency and risk of irreparable preju-

dice, with an average of 247 Palestinians being killed, 629 wounded and

3,900 Palestinian homes damaged or destroyed each day. Moreover, Pales-

tinians in the Gaza Strip are, in the view of South Africa, at

“immediate risk of death by starvation, dehydration and disease as a

result of the ongoing siege by Israel, the destruction of Palestinian

towns, the insufficient aid being allowed through to the Palestinian

population and the impossibility of distributing this limited aid while

bombs fall”.

The Applicant further contends that any scaling up by Israel of access of

humanitarian relief to Gaza would be no answer to its request for provisional

measures. South Africa adds that, “[s]hould [Israel’s] violations of the Geno-

cide Convention go unchecked”, the opportunity to collect and preserve

evidence for the merits stage of the proceedings would be seriously under-

mined, if not lost entirely.

64. Israel denies that there exists a real and imminent risk of irreparable

prejudice in the present case. It contends that it has taken  and continues

to take  concrete measures aimed specifically at recognizing and ensuring

the right of the Palestinian civilians in Gaza to exist and has facilitated the

provision of humanitarian assistance throughout the Gaza Strip. In this

regard, the Respondent observes that, with the assistance of the World Food

Programme, a dozen bakeries have recently reopened with the capacity to

produce more than 2 million breads a day. Israel also contends that it contin-

ues to supply its own water to Gaza by two pipelines, that it facilitates the

delivery of bottled water in large quantities, and that it repairs and expands

water infrastructure. It further states that access to medical supplies and

application of the genocide convention (order 26 I 24)

services has increased and asserts, in particular, that it has facilitated the

establishment of six field hospitals and two floating hospitals and that two

more hospitals are being built. It also contends that the entry of medical

teams into Gaza has been facilitated and that ill and wounded persons are

being evacuated through the Rafah border crossing. According to Israel,

tents and winter equipment have also been distributed, and the delivery of

fuel and cooking gas has been facilitated. Israel further states that, accord-

ing to a statement by its Defence Minister of 7 January 2024, the scope and

intensity of the hostilities was decreasing.

* *

65. The Court recalls that, as underlined in General Assembly resolu-

tion 96 (I) of 11 December 1946,

“[g]enocide is a denial of the right of existence of entire human groups,

as homicide is the denial of the right to live of individual human beings;

such denial of the right of existence shocks the conscience of mankind,

results in great losses to humanity in the form of cultural and other con-

tributions represented by these human groups, and is contrary to moral

law and to the spirit and aims of the United Nations”.

The Court has observed, in particular, that the Genocide Convention “was

manifestly adopted for a purely humanitarian and civilizing purpose”, since

“its object on the one hand is to safeguard the very existence of certain

human groups and on the other to confirm and endorse the most elementary

principles of morality” (Reservations to the Convention on the Prevention

and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports

1951, p. 23).

66. In view of the fundamental values sought to be protected by the Geno-

cide Convention, the Court considers that the plausible rights in question in

these proceedings, namely the right of Palestinians in the Gaza Strip to be

protected from acts of genocide and related prohibited acts identified in

Article III of the Genocide Convention and the right of South Africa to seek

Israel’s compliance with the latter’s obligations under the Convention, are of

such a nature that prejudice to them is capable of causing irreparable harm

(see Application of the Convention on the Prevention and Punishment of

the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures,

Order of 23 January 2020, I.C.J. Reports 2020, p 26, para. 70).

67. During the ongoing conflict, senior United Nations officials have

repeatedly called attention to the risk of further deterioration of conditions

in the Gaza Strip. The Court takes note, for instance, of the letter dated

6 December 2023, whereby the Secretary-General of the United Nations

brought the following information to the attention of the Security Council:

application of the genocide convention (order 26 I 24)

“The health-care system in Gaza is collapsing . . .

Nowhere is safe in Gaza.

Amid constant bombardment by the Israel Defense Forces, and with-

out shelter or the essentials to survive, I expect public order to completely

break down soon due to the desperate conditions, rendering even limited

humanitarian assistance impossible. An even worse situation could

unfold, including epidemic diseases and increased pressure for mass

displacement into neighbouring countries.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

We are facing a severe risk of collapse of the humanitarian system.

The situation is fast deteriorating into a catastrophe with potentially

irreversible implications for Palestinians as a whole and for peace and

security in the region. Such an outcome must be avoided at all costs.”

(United Nations Security Council, doc. S/2023/962, 6 December 2023.)

68. On 5 January 2024, the Secretary-General wrote again to the Security

Council, providing an update on the situation in the Gaza Strip and observ-

ing that “[s]adly, devastating levels of death and destruction continue”

(Letter dated 5 January 2024 from the Secretary-General addressed to the

President of the Security Council, United Nations Security Council,

doc. S/2024/26, 8 January 2024).

69. The Court also takes note of the 17 January 2024 statement issued by

the UNRWA Commissioner-General upon returning from his fourth visit to

the Gaza Strip since the beginning of the current conflict in Gaza: “Every

time I visit Gaza, I witness how people have sunk further into despair, with

the struggle for survival consuming every hour.” (UNRWA, “The Gaza

Strip: a struggle for daily survival amid death, exhaustion and despair”,

Statement by Philippe Lazzarini, Commissioner-General of UNRWA,

17 January 2024.)

70. The Court considers that the civilian population in the Gaza Strip

remains extremely vulnerable. It recalls that the military operation con-

ducted by Israel after 7 October 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 (see paragraph 46 above). The Court notes that the operation

is ongoing and that the Prime Minister of Israel announced on 18 January

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.

71. The WHO has estimated that 15 per cent of the women giving birth in

the Gaza Strip are likely to experience complications, and indicates that

application of the genocide convention (order 26 I 24)

maternal and newborn death rates are expected to increase due to the lack of

access to medical care.

72. In these circumstances, the Court considers that the catastrophic

humanitarian situation in the Gaza Strip is at serious risk of deteriorating

further before the Court renders its final judgment.

73. The Court recalls Israel’s statement that it has taken certain steps to

address and alleviate the conditions faced by the population in the Gaza

Strip. The Court further notes that the Attorney General of Israel recently

stated that a call for intentional harm to civilians may amount to a criminal

offence, including that of incitement, and that several such cases are being

examined by Israeli law enforcement authorities. While steps such as these

are to be encouraged, they are insufficient to remove the risk that irrepar-

able prejudice will be caused before the Court issues its final decision in the

case.

74. In light of the considerations set out above, the Court considers that

there is urgency, in the sense that there is a real and imminent risk that irrep-

arable prejudice will be caused to the rights found by the Court to be

plausible, before it gives its final decision.

VI. Conclusion and Measures to Be Adopted

75. The Court concludes on the basis of the above considerations that

the conditions required by its Statute for it to indicate provisional measures

are met. It is therefore necessary, pending its final decision, for the Court to

indicate certain measures in order to protect the rights claimed by South

Africa that the Court has found to be plausible (see paragraph 54 above).

76. The Court recalls that it has the power, under its Statute, when a request

for provisional measures has been made, to indicate measures that are, in

whole or in part, other than those requested. Article 75, paragraph 2, of the

Rules of Court specifically refers to this power of the Court. The Court has

already exercised this power on several occasions in the past (see, for exam-

ple, Application of the Convention on the Prevention and Punishment of the

Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order

of 23 January 2020, I.C.J. Reports 2020, p. 28, para. 77).

77. In the present case, having considered the terms of the provisional

measures requested by South Africa and the circumstances of the case, the

Court finds that the measures to be indicated need not be identical to those

requested.

78. The Court considers that, with regard to the situation described above,

Israel must, in accordance with its obligations under the Genocide Conven-

tion, in relation to Palestinians in Gaza, take all measures within its power

application of the genocide convention (order 26 I 24)

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 Court recalls that these acts fall within

the scope of Article II of the Convention when they are committed with the

intent to destroy in whole or in part a group as such (see paragraph 44 above).

The Court further considers that Israel must ensure with immediate effect

that its military forces do not commit any of the above-described acts.

79. The Court is also of the view that Israel must 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.

80. The Court further considers 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.

81. Israel must also 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.

82. Regarding the provisional measure requested by South Africa that

Israel must submit a report to the Court on all measures taken to give effect

to its Order, the Court recalls that it has the power, reflected in Article 78 of

the Rules of Court, to request the parties to provide information on any

matter connected with the implementation of any provisional measures it

has indicated. In view of the specific provisional measures it has decided to

indicate, the Court considers that Israel must 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. The report so provided shall then be communicated

to South Africa, which shall be given the opportunity to submit to the Court

its comments thereon.

* *

83. The Court recalls that its Orders on provisional measures under Art-

icle 41 of the Statute have binding effect and thus create international legal

obligations for any party to whom the provisional measures are addressed

(Allegations of Genocide under the Convention on the Prevention and

Punishment of the Crime of Genocide (Ukraine v. Russian Federation),

application of the genocide convention (order 26 I 24)

Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I),

p. 230, para. 84).

* *

84. The Court reaffirms that the decision given in the present proceedings

in no way prejudges the question of the jurisdiction of the Court to deal with

the merits of the case or any questions relating to the admissibility of the

Application or to the merits themselves. It leaves unaffected the right of the

Governments of the Republic of South Africa and the State of Israel to sub-

mit arguments in respect of those questions.

* *

85. The Court deems it necessary to emphasize that all parties to the con-

flict in the Gaza Strip are bound by international humanitarian law. 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.

* *

86. For these reasons,

The Court,

Indicates the following provisional measures:

(1) By fifteen votes to two,

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:

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

about its physical destruction in whole or in part; and

(d) imposing measures intended to prevent births within the group;

in favour: President Donoghue; Vice-President Gevorgian; Judges Tom-

ka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam,

Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Moseneke;

against: Judge Sebutinde; Judge ad hoc Barak;

application of the genocide convention (order 26 I 24)

(2) By fifteen votes to two,

The State of Israel shall ensure with immediate effect that its military does

not commit any acts described in point 1 above;

in favour: President Donoghue; Vice-President Gevorgian; Judges Tom-

ka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam,

Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Moseneke;

against: Judge Sebutinde; Judge ad hoc Barak;

(3) By sixteen votes to one,

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;

in favour: President Donoghue; Vice-President Gevorgian; Judges Tom-

ka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam,

Iwasawa, Nolte, Charlesworth, Brant; Judges ad hoc Barak, Moseneke;

against: Judge Sebutinde;

(4) By sixteen votes to one,

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;

in favour: President Donoghue; Vice-President Gevorgian; Judges Tom-

ka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam,

Iwasawa, Nolte, Charlesworth, Brant; Judges ad hoc Barak, Moseneke;

against: Judge Sebutinde;

(5) By fifteen votes to two,

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 Pales-

tinian group in the Gaza Strip;

in favour: President Donoghue; Vice-President Gevorgian; Judges Tom-

ka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam,

Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Moseneke;

against: Judge Sebutinde; Judge ad hoc Barak;

application of the genocide convention (order 26 I 24)

(6) By fifteen votes to two,

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.

in favour: President Donoghue; Vice-President Gevorgian; Judges Tom-

ka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam,

Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Moseneke;

against: Judge Sebutinde; Judge ad hoc Barak.

Done in English and in French, the English text being authoritative, at the

Peace Palace, The Hague, this twenty-sixth day of January, two thousand

and twenty-four, in three copies, one of which will be placed in the archives

of the Court and the others transmitted to the Government of the Republic of

South Africa and the Government of the State of Israel, respectively.

Judge Xue appends a declaration to the Order of the Court; Judge Sebutinde

appends a dissenting opinion to the Order of the Court; Judges Bhandari

and Nolte append declarations to the Order of the Court; Judge ad hoc

Barak appends a separate opinion to the Order of the Court.

(Signed) Joan E. Donoghue,

President.

(Signed) Philippe Gautier,

Registrar.

(Initialled) J.E.D.

(Initialled) Ph.G.