South Africa v Israel: ICJ Denies New Request for Provisional Measures

22-02-2024

Andrej Confalonieri

Middle East and Human Rights Researcher

Global Human Rights Defence

Pursuant to South Africa’s first request for provisional measures on December 29th, 2023, the International Court of Justice (“ICJ” or “Court”) issued a provisional measures order on January 28th, 2024. [1] While the ICJ did not call for a ceasefire, it ordered Israel to prevent and punish direct incitement to genocide in Gaza and allow the entry of humanitarian aid. [2] 

Nevertheless, South Africa opted to submit another request to the ICJ due to “a significant development in the situation in Gaza requiring the Court’s urgent attention”. [3] The request refers to a statement made by the Office of the Prime Minister of Israel on February 9th, indicating a planned military action in Rafah, home to a significant Palestinian population. South Africa highlighted the humanitarian situation in Rafah, with a substantial population displaced to makeshift tents due to Israeli military evacuation orders. [4] South Africa further referred to concerns expressed by international bodies and officials, such as the United Nations Secretary-General, United Nations, UN Office for the Coordination of Humanitarian Affairs (“OCHA”), UNICEF, and NGOs on the ground, including the Norwegian Refugee Council and Save the Children. [5] In drawing attention to the precedent case of LaGrand, where the ICJ acted in a situation of extreme urgency affecting an individual, South Africa argued that the current situation in Rafah, affecting an estimated 1.4 million vulnerable Palestinians, warrants the Court’s immediate attention and intervention. [6] Accordingly, South Africa 

respectfully [called] upon the Court to consider as a matter of the greatest urgency whether the developing circumstances in Rafah require[d the ICJ to] exercise its power under Article 75(1) of the Rules of Court to prevent further imminent breach of the rights of Palestinians in Gaza.  [7]

However, the Court rejected the new request. Citing the United Nations Secretary-General's remarks to the General Assembly, it noted “that the most recent developments in the Gaza Strip, and in Rafah in particular, ‘would exponentially increase what is already a humanitarian nightmare with untold regional consequences’”. [8] Nonetheless, the ICJ added that the 

perilous situation demands immediate and effective implementation of the provisional measures indicated by the Court in its Order of 26 January 2024, which are applicable throughout the Gaza Strip, including in Rafah, and does not demand the indication of additional provisional measures. [9]

Additionally, “[t]he Court [emphasised] that (…) Israel remains bound to fully comply with its obligations under the Genocide Convention and with the [Order of January 26th], including by ensuring the safety and security of the Palestinians in the Gaza Strip”. [10] 

In other words, while the Court decided to reject the new request for provisional measures, it underlined that Israel is still under the obligation to 

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. [11]

Israel is also obliged to “ensure with immediate effect that its military does not commit any [of these] acts, “prevent and punish the direct and public incitement to commit genocide”, as well as “enable the provision of urgently needed basic services and humanitarian assistance to (…) Palestinians in the Gaza Strip”. [12]

Sources and Further Reading

[1] 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, para 86. 

[2] Ibid. See also Mariana Mayor Lima, ‘World's Reaction: ICJ decision on allegations of genocide against Israel’ (GHRTV, 13 February 2024) <World's Reaction: ICJ decision on allegations of genocide against Israel - Human Rights News> accessed 22 February 2024.

[3] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel), Urgent Request for Additional Measures, 12 February 2024 para 2.

[4] Ibid paras 2-4.

[5] Ibid paras 5-6.

[6] Ibid paras 8-9.

[7] Ibid para 10.

[8] 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 16 February 2024.

[9] Ibid.

[10] Ibid.

[11] South Africa v Israel, Provisional Measures, Order of 26 January 2024 (n 1) para 86.

[12] Ibid.