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Even though I do not find it plausible that the military operation is being conducted with
genocidal intent, I voted in favour of the measures indicated by the Court. To indicate those measures, it is not necessary for the Court to find that the military operation as such implicates plausible rights of Palestinians in the Gaza Strip. My decision to vote in favour of the measures indicated rests on the plausible claim by South Africa that certain statements by Israeli State officials, including members of its military, give rise to a real and imminent risk of irreparable prejudice to the rights of Palestinians under the Genocide Convention (see paragraphs 50-52 of the Order). (Nolte, J., Declaration)
The much anticipated decision of the International Court of Justice (ICJ) on the demand by the Republic of South Africa and its friends for interim measures in its action against the Republic of Israel in the context of an action by the Republic of South Africa alleging that the military and related operations of the Republic of Israel against the political and military structures of the Hamas collective, one of several institutionalized manifestations of political collectives among Palestinians has been delivered.
Its arte povera was constructed from out of the textual papier-mâché (the chewed paper) pasted together in the form of a an opinion attached to a judicial order (26 January 2024) pulped together with what one might be excused as characterizing as the self-revealing personal narrative framing declarations of Judges Xue; Bhandari; and Nolte; the counter narrative of the dissent of Judge Sebutinde; and, perhaps in the manner of the old medieval disputations, the separate opinion of the (Jewish) Judge ad hoc Barak (South Africa was also allowed an ad hoc appointment because neither state was represented on the court). The text of each of these writings are reproduced below.
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1. Plausible plausibility. The plausibility of the ICJ Order is itself founded on the application of principles of plausibility to the collection of facts, opinions, feelings, points of view that it can plausibly paste together (again the papier mâché imagery) into a solid foundation for what it means to do: (1) lecture (literally a reading for instruction) the Republic of Israel in its treaty duties; (2) effectively insist that the rates of mortality be reduced to some sort of acceptable level; and (3) remind the Republic of Israel that it will be under observation.
Today’s order was, in my view, largely a foregone conclusion. The conditions for the indication of provisional measures laid down in the Court’s jurisprudence can easily be met in a situation as harrowing as the one in Gaza. All, that is, but one – the plausibility of the rights (or violations) alleged by the parties. (Marko Milanovic, ICJ Indicates Provisional Measures in South Africa v. Israel (EJIL: Talk!)
It may make sense, then, to consider the context in which the judges wrestle with the meaning they would construct for the term "plausible" within the lexicon of legal meaning making. Etymologically, one speaks here to the "appearance of truth or credibility" (here). One might emphasize the "truth" and "credibility" part of the definition. And, indeed, that is what the judges were arguing about in its essence. To what extent was there truth or credibility to the statements and actions that represents its own pastiche of truth and credibility. It might be more useful, though, to focus on that other part of its definition--on appearance. Judge Bhandari got closest to this emphasis. Closely tied to the idea of appearance as the essence of the plausible is an older sense from the word's Latin root-- plausibilis "praiseworthy, pleasing, acceptable"(here). And, indeed, in this aspect, it is not truth or credibility that is important, it is the acceptability or praiseworthiness of the idea, fact etc. advanced, that tales center stage. Here, plausibility is more a function of what one wants to believe--what one believes one must believe, what one expects to believe, what one's prejudices (judged good or evil; conscious or built into one's imaginaries) drive one to believe or desire to believe--that drives the condition of the plausible.
What is plausible, then, is what is "seemingly worthy of acceptance or approval" (here). Judge Nolte got closest to a refreshingly candid embrace of this aspect of the meaning of the term; and so did Judge ad hoc Barak but from vastly different starting points for the judging of appearance or desire. Of course, judges and lawyers will dress this up in the seemingly logical and methodological weighing and balancing of the language lawyers use to make meaning (Broekman & Backer, Lawyers Making Meaning (2013). But it does not change the thrust of the act of identifying the plausible--one is looking for what one wants to find; that is the threshold of the plausible. The rest is the consequence of the baggage one brings to the task of judging something worthy of acceptance or approval. It suggests, then, not a judgment about a quantum of fact, but rather a judgement of a quantum of judgment, of presumption, of expectation that can be evidenced by a collection of "truth objects." The consequence, then, follows--plausibility is not a judicial process but a political-cultural act--an act of affirmation of membership in a particular imaginary collective that is capable of seeing things in a particular way, and thus seeing, capable of plausible judging. That is a point that might be intimated from Judge Sebutinde's dissent.
2. The Narrative Politics of Causation and its limits. There is really very little here; and that is what ought to give pause. Almost with no discussion, all of the judges assumes that the limits of causation were defined by a simple relationship: Palestinian harm was caused by the military acts of the Republic of Israel.
The Court begins by recalling the immediate context in which the present case came beforeBut this judicial conceit might be worth a little interrogation (and the sort of complication that irritates the seamless logic of the analytical framework imposed in this case and largely uncontested by influential or authoritative stakeholders). The undisputed working premise is that the military action of the Republic of Israel is the cause of Palestinian suffering.
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 civilian infrastructure and the displacement of the overwhelming majority of the population in Gaza. (Order, supra, ¶ 13).
Nonetheless, Nietzsche reminds us (but apparently not the global class of lawyer-priests) of the four great errors: (1) the error of confusing cause and consequence; (2) the error of a false causality; (3) the error of imaginary causes; and (4) the error of free will (Nietzsche, Twilight of the Idols; pp. 33-43). In this case, the missing cause is the role of the political-military-religious collective asserting substantial control over Gaza: Hamas. Let us consider the unpalatable--the plausibility of errors of causation at the root of the case.
The first of the errors would turn cause and effect upside down. Palestinian suffering was caused by Hams as a consequence of its decision to build its military infrastructure in key civilian areas. That was, in part, the inartfully argued stance of the Republic of Israel--against which the proportionality analysis would be applicable., and justifiably so. The cause was Hamas intentionality in placing its military operations strategically; the instrument of that harm was the Israeli response. The cause of Israeli military operations is the presence of Hamas military installations. And the cause of Palestinian suffering are the placement of the Hamas military installations. Connected to this, of course, is the causality template--intent to genocide focus. Here the cause issue is equally ambiguous--was the October 7 criminal raiding of Hamas the encouraged pretext for genocide; or was the response to the October 7th criminal raiding the precise objective of the raiding itself; if the later then the genocidal intent rests with Hamas whose instrument is the Israeli military whose actions can be alternatively reframed to suit the principal objective.
The second of the errors is related to the first: the cause of Palestinian suffering is the proximity of military installations to places where civilians are found. The accepted cause and effect, then is built on the false cause that the object of Palestinian suffering is Israeli action against them. Here the presumption is that the Hamas installations are the excuse to justify a larger not pacification but elimination. In effect, false causality in situations like this produce not just perversion but opportunity: it becomes clear that a military political collective would be insane NOT TO place their military installation next to or under centers of appealingly vulnerable civilians. While that placement may be condemned, it would be the forces that seek to confront those military installations that bear the risk of legal breach rather than those who controlled (created) the risk. Indeed, the order suggests just this trajectory. Untested, though, is whether that presumption would apply to disfavored groups. Here the false causality of genocide moves from genocide itself to IHL and proportionality. And it assumes without considering a principle that proportionality breaches can themselves be predicates to genocide.
The third of the errors, imaginary causality, is at the center of the problem of causality as it has been avoided by the court. The problem here is that of analogy and the mimesis of historical patterns. In this case especially that iterative mimesis posits a sort of Stockholm syndrome--collectives that suffer traumatic abuse are likely to themselves become abusers This desperate search for an answer in historical analogy, strategically applied and colored by the another set of historical mimesis--the baseline presumptions about the stereotypical Jew, conflates to create fertile ground for the imaginary. Again, the imaginary causality in this case might have the power to make Hamas invisible. And it provides the necessary stage in which the judges can use text to make affirmations of their loyalty to specific forms of legal discursive tropes. And yet, the judges are entrapped as much by these ideological affirmations as they might be by inverted or false causality.
The last of the errors--the falsity of free will--might be the most interesting. "Men were thought of as “free” in order that they might be judged and punished—in order that they might be held guilty: consequently every action had to be regarded as voluntary, and the origin of every action had to be imagined as lying in consciousness" (Nietzsche, supra, p. 42). But that is the trick. Judgment is not inevitable, and is shaped by the circumstances of judging, and those circumstances are themselves the materialization of presumptions about the way things are, ought to be, and the character of the actors operating in this space of "ought" and "are". That produces the conflations perhaps best evidenced in paragraphs 3 and 4 of Judge Xue's declaration. But it also raises the ancient presumptions of the Merchant of Venice (here); or of the ideologically powerful trope of the Jew as foreign fascist feudal oppressor (Choosing Sides, Socialist Internationalism, and the Ideological Signification of China's Jewish Problem in the International Arena).
Again, much by way of opportunity was missed in the great efforts of the court to speak to a specific imaginary, and of the parties, as times representing distinct imaginaries, spoke past each other, and in the process created the large empty spaces which the court could fill with its own ideological imaginaries.
It is regrettable how much the Parties talked past each other during the oral proceedings. South Africa hardly mentioned the attack of 7 October 2023 and the ensuing massacre; Israel barely mentioned the United Nations reports on the humanitarian situation in the Gaza Strip. South Africa hardly mentioned the efforts by Israel to evacuate the civilian population from areas of hostilities; Israel did not satisfactorily address highly problematic forms of speech by some of its officials, including members of its military. (Nolte Declaration, supra, ¶6).And the largest space left empty was that of the genocidal intent of Hams and its followers which, invisible, substantially recasts the narrative tropes and the pathways toward juridified analytics.
3. The intersubjective imaginaries of political premises that serve as the guardrails for judicial operation. Legal intersubjectivity is at the heart of its cognitive-communications, and with its its dialectic. It suggests not merely shared meaning (and its affirmation through the performances within authoritative spaces like courts), but also to project that meaning on others voluntary or involuntary members of a collective. That, of course, is the essence of the power of law, traditionally expressed through the organs of the state institutionalized in courts and articulated by the judge (its legal semiotics considered here). The official spaces within which the dialectics of subjectivity may be performed assume a critical role in the rationalization of social relations within institutionalized disciplinary organs.
Certainly there is more refinement of these narrative and legal trajectories in the near future--certainly
three potential theaters for that explosion--the mechanics of ethnic cleansing in Myanmar (no longer legitimate after the European ethnic cleaning and population movements of 1945-1948; management of the
plausibility of legitimacy for an autonomous political apparatus of
global Jewry and the revised character of evidence of ethnic-religious population movement; and the political pan-Slavism encased within imperial
ambitions of the Russian state and its reconstitution of peoples within its ethno-ideologies. The analytical flavor of the month, the organizing prism through which these may be managed, is "genocide," the (re)construction of which is likely to be quite interesting. The trajectory appears to be to broaden its scope so that it may stand for any (unapproved) expression of ethno-religious-cultural-social chauvinism. But of immediate effect is the reconstruction of the idea of genocide as a powerful bass for satisfying what appears to be a global elite interest in the protection of the status quo; (1) in this case of one in which the expectation must be that both Jews and their opponents must expect to die periodically (through acts of violence) but in a proportion that does not disturb the relative position of either; and (2) in the Ukrainian-Russian case in the recreation of the stalemate that was the trench warfare of the first stage of the war of European suicide that started officially in 1914 (reignited in 1939 and apparently reignited again in 2014). That, in a sense, was at the heart of all of this textual fuss: how does one preserve the status quo (the tolerance of an equilibrium of violence rule) by recourse to legal objects that may be useful toward those ends. In that context, of course, the fight between the majority and the dissenting Judge Sebutinde (which invites further elaboration) bears some examination. The narrative battles continue in text and blood.
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SEPARATE OPINION OF JUDGE AD HOC BARAK
1. South Africa came to the Court seeking the immediate suspension of the military operations
in the Gaza Strip. It has wrongly sought to impute the crime of Cain to Abel. The Court rejected
South Africa’s main contention and, instead, adopted measures that recall Israel’s existing
obligations under the Genocide Convention. The Court has reaffirmed Israel’s right to defend its
citizens and emphasized the importance of providing humanitarian aid to the population of Gaza.
The provisional measures indicated by the Court are thus of a significantly narrower scope than those
requested by South Africa.
2. Notably, the Court has emphasized that “all parties to the conflict in the Gaza Strip are
bound by international humanitarian law”, which certainly includes Hamas. The Court has also stated
that it “is gravely concerned about the fate of the hostages abducted during the attack on Israel on
7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate
and unconditional release” (see Order, para. 85).
I. GENOCIDE: AN AUTOBIOGRAPHICAL REMARK
3. The Genocide Convention holds a very special place in the heart and history of the Jewish
people, both within and beyond the State of Israel. The term “genocide” was coined in 1942 by a
Jewish lawyer from Poland, Raphael Lemkin, and the impetus for the adoption of the Genocide
Convention came from the carefully planned and deliberate murder of six million Jews during the
Holocaust.
4. I was five years old when, as part of Operation Barbarossa, the German army occupied the
city in which I was born Kaunas in Lithuania. Within a few days, almost 30,000 Jews in
Kaunas were taken from their homes and put into a ghetto. It was as if we were sentenced to death,
awaiting our execution. On 26 October 1941, every Jew in the ghetto was instructed to gather in the
central square, known as “Democracy Square”. Around 9,000 Jews were taken from the square on
that day and executed by machine gun fire.
There was constant hunger in the overcrowded ghetto. But despite all the difficulties, there
was an organized community life. It was a community of individuals condemned to death, yet in their
hearts there was a spark of hope for life and a desire to preserve basic human dignity.
5. At the beginning of 1944, the Nazis rounded up all children under the age of 12, loaded
them onto trucks and shot them during the infamous “Kinder Aktion”. It was clear that I had to leave
in order to survive. I was smuggled out of the ghetto in a sack and taken to a Lithuanian farmer. A
couple of weeks later my mother and I were transferred to another farmer. We had to be very discreet,
so the farmer built a double wall in one of the rooms. We hid in that narrow space until we were
finally liberated by the Red Army on 1 August 1944. Only five per cent of the Jews of Lithuania had
survived.
6. Genocide is more than just a word for me; it represents calculated destruction and human
behaviour at its very worst. It is the gravest possible accusation and is deeply intertwined with my
personal life experience.
7. I have thought a lot about how this experience has affected me as a judge. In my opinion,
the effect has been twofold. First, I am deeply aware of the importance of the existence of the State
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of Israel. If Israel had existed in 1939, the fate of the Jewish people might have been different.
Second, I am a strong believer in human dignity. The Nazis and their collaborators sought to reduce
us to dust and ashes. They aimed to strip us of our human dignity. However, in this, they failed.
During the most challenging moments in the ghetto, we preserved our humanity and the spirit of
humankind. The Nazis succeeded in murdering many of our people, but they could not take away
our humanity.
8. The rebirth following the Holocaust is the rebirth of the human being, of the centrality of
humanity and of human rights for every person. Many international instruments focusing on the
rights of the individual were adopted after 1945, and the protection of human rights is also deeply
rooted in the Israeli legal system.
II. ISRAEL’ S COMMITMENT TO THE RULE OF LAW AND INTERNATIONAL HUMANITARIAN LAW
9. Israel is a democracy with a strong legal system and an independent judicial system.
Whenever there is tension between national security interests and human rights, the former must be
attained without compromising the protection of the latter. As I have written: “Security and human
rights go hand in hand. There is no democracy without security; there is no democracy without human
rights. Democracy is based upon a delicate balance between collective security and individual
liberty”1.
10. The need for such balancing has served as a silver lining in the rulings of the Supreme
Court of Israel. Once, in the midst of a military operation in Gaza, the Supreme Court ordered the
army to repair the water pipes that had been damaged by army tanks, and to do so while the operation
was still ongoing. On the same occasion, it ordered the army to provide humanitarian aid to civilians
and to halt hostilities to allow for the burial of the dead2. In its judgment on “targeted killings”, the
Supreme Court ruled that Israel must always act in accordance with international humanitarian law,
and that Israel must refrain from targeting terrorists when excessive harm to civilians is anticipated3.
11. As a judge in the Israeli Supreme Court, I wrote that every Israeli soldier carries with him
(or her), in their backpack, the rules of international law4. This means that international law guides
the actions of all Israeli soldiers wherever they are. I also wrote that when a democratic State fights
terrorism, it does so with one hand tied behind its back5. Even when fighting a terrorist group like
Hamas that does not abide by international law, Israel must abide by the law and uphold democratic
values.
12. The Israeli Supreme Court has also held that torture may not be used during the
interrogation of terrorists6, that religious sites and clergy must be protected, and that all captives must
be afforded fundamental guarantees7. Naturally, as in any democratic society, some of these rulings
1 Aharon Barak, “International Humanitarian Law and the Israeli Supreme Court” (2014), Israel Law Review, Vol. 47, para. 185.- 3 -
2 HCJ 4764/04 Physicians for Human Rights v. IDF Commander in Gaza (2004).
3 HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel (2005) (Targeted Killings).
4 HCJ 393/82 Jam'iat Iscan Al-Ma’almoun v. IDF Commander in the Judea and Samaria Area (1983).
5 HCK 769/02 The Public Committee against Torture in Israel v. The Government of Israel (2006).
6 HCJ 5100/94 Public Committee Against Torture in Israel v. Government of Israel (1999) (Interrogations).
7 HCJ 3278/02 Center for Defence of the Individual Founded by Dr Lotta Salzerberger v. Commander of IDF Forces in the West Bank (2002).
have been criticized in Israel. Still, the public stands behind them and the military upholds them on
a regular basis. Rulings of the Israeli Supreme Court many of them based on international law
are the standards by which Israel conducts itself.
13. International law is also an integral part of the military code and the conduct of the Israeli
army. The Code of Ethics of the Israeli Defense Forces states that
“[a]n IDF soldier will only exercise their power or use their weapon in order to fulfill
their mission and only when necessary. They will maintain their humanity during
combat and routine times. The soldier will not use their weapon or power to harm
uninvolved civilians and prisoners and will do everything in their power to prevent harm
to their lives, bodies, dignity and property.”8
When those norms are violated, the Attorney General, the State Attorney and the Military Advocate
General take the necessary measures to bring those responsible to justice, and their decisions are
subject to judicial review. In appropriate cases, the Israeli Supreme Court may instruct them how to
act. This is Israel’s DNA. Governments have been replaced, new justices have come to the Supreme
Court, but the DNA of Israel’s democracy does not change.
14. Israel’s multiple layers of institutional safeguards also include legal advice provided in
real time, during hostilities. Strikes that do not meet the definition of a military objective or that do
not comply with the rule of proportionality cannot go forward. The holdings of the Israeli Supreme
Court and Israel’s institutional framework demonstrate a commitment to the rule of law and human
life a commitment that runs through its collective memory, institutions, and traditions.
III. THE COURT’ S PRIMA FACIE JURISDICTION
15. The Court has affirmed its prima facie jurisdiction for the purpose of indicating provisional
measures (see Order, para. 31). However, it is doubtful whether South Africa brought this dispute in
good faith. After South Africa sent a Note Verbale to Israel on 21 December 2023, concerning the
situation in Gaza, Israel replied with an offer to engage in consultations at the earliest possible
opportunity. South Africa, instead of accepting this offer, which could have led to fruitful diplomatic
talks, decided to institute proceedings against Israel before this Court. It is regrettable that Israel’s
attempt to open a dialogue was met with the filing of an application.
If anything, history has taught us that the best attempts at peace in the Middle East have
generally been a result of political negotiations and not judicial recourse. The 1978 peace talks
between Egypt and Israel at Camp David are a good example of this. These talks succeeded when a
third party the United States entered the process and assisted the parties in reaching an
agreement. In my opinion, a similar scenario could have unfolded here. While the jurisdictional
clause of the Genocide Convention does not require formal negotiations, the principle of good faith
dictates that at least some efforts should be made to resolve disputes amicably before resorting to the
Court. South Africa made no such effort and denied Israel a reasonable opportunity to engage
meaningfully in a discussion on how to address the difficult humanitarian situation in Gaza.
16. The present case involves an additional difficulty. The other belligerent in the armed
conflict in Gaza, Hamas, is not a party to the present proceedings. Thus, it is not possible to indicate
measures directed at Hamas in the Order’s operative clause. While this does not prevent the Court
8 Israeli Defense Forces, Code of Ethics, Additional Values, Purity of Arms.
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from exercising its jurisdiction, it is an essential matter to be considered when determining the
appropriate measures or remedies in this case.
IV. THE ARMED CONFLICT IN G AZA
17. The Court briefly recalls the immediate context in which the present case came before it,
namely the attack of 7 October 2023 by Hamas and the military operation launched by Israel in
response to that attack (see Order, para 13). The Court, however, fails to give a complete account of
the situation which has unfolded in Gaza since that fateful day.
18. On 7 October 2023, on the day of the Sabbath and the Jewish holiday of “Simchat Torah”,
over 3,000 Hamas terrorists, aided by members of the Palestinian Islamic Jihad, invaded Israeli
territory by land, air and sea. The assault began in the early morning hours, with a barrage of rockets
over the entire country and the infiltration of Hamas into Israeli territory. Alerts sounded all over
Israel, civilians and soldiers took shelter, and many were later massacred inside those shelters. In
other places, houses were burned down with civilians still in their safe rooms, burning alive or
suffocating to death. At the Reim Nova Music Festival, young Israelis were murdered in their sleep
or while running for their lives across open fields. Women’s bodies were mutilated, raped, cut up
and shot in the worst possible places. Overall, more than 1,200 innocent civilians, including infants
and the elderly, were murdered on that day. Two hundred and forty Israelis were kidnapped and taken
to the Gaza Strip, and over 12,000 rockets have been fired at Israel since 7 October. These facts have
been largely reported and are indisputable.
19. Israel, faced with an ongoing assault on its people and territory, launched a military
operation. The Israeli authorities declared that the purpose of the operation is to dismantle Hamas
and destroy its military and governmental capabilities, return the hostages, and secure the protection
of Israel’s borders.
20. Hamas has vowed to “repeat October 7 again and again”9. Hamas is thus an existential
threat to the State of Israel, and one that Israel must repel. This terrorist organization rules over the
Gaza Strip, exercising military and governmental functions. Hamas seeks to immunize its military
apparatus by placing it within and below civilian infrastructure, which is itself a war crime, and
intentionally places its own population at risk by digging tunnels under their homes and hospitals.
Hamas fires missiles indiscriminately at Israel, including from schools and other civilian installations
in Gaza, in the full knowledge that many of them will fall inside Gaza causing death and injuries to
innocent Palestinians. This is Hamas’s well-known modus operandi.
21. A few examples illustrate this well. When humanitarian aid enters Gaza, Hamas hoards it
for its own purposes. Hamas has made clear that its tunnel network is designed for its fighters, rather
than for civilians seeking shelter from the hostilities. Hamas has compromised the inherently civilian
nature of schools and hospitals in Gaza, using them for military purposes by storing or launching
rockets from and under these sites.
22. The fate of the hostages is especially disturbing. The act of hostage taking committed by
Hamas on 7 October constitutes a grave breach of the Geneva Conventions of 12 August 1949 and
9 See “Hamas Official Ghazi Hamad: We Will Repeat the October 7 Attack Time and Again Until Israel Is Annihilated; We Are Victims - Everything We Do Is Justified #Hamas #Gaza #Palestinians https://t.co/kXu3U0BtAP” / X (twitter.com).
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is criminalized under the Rome Statute10. Hamas has not provided the names of the hostages, or any
information regarding who is dead and who is still alive. Nor have they allowed the International
Committee of the Red Cross (ICRC) to visit the hostages, as the law requires. The ICRC has not been
able to provide medical supplies to the hostages, does not know their whereabouts, and has not
succeeded in securing their release. As I write, this agony has now been ongoing for over 100 days.
23. This is not to undermine the suffering of innocent Palestinians. I have been personally and
deeply affected by the death and destruction in Gaza. There is a danger of food and water shortages
and the outbreak of diseases. The population lives in precarious conditions, facing the unfathomable
consequences of war. In the role that has been entrusted to me as a judge ad hoc, but also as a human
being, it is important for me to express my most sincere and heartfelt regret for the loss of innocent
lives in this conflict.
24. The State of Israel was brought before this Court as its leadership, soldiers, and children
processed the shock and trauma of the attack of 7 October. An entire nation trembled and, in the
blink of an eye, lost its most basic sense of security. Fears of additional attacks were palpable as
infiltrations continued in the days following the attack. The immediate context in which South
Africa’s request was brought to the Court should have played a more central role in the Court’s
reasoning. While it in no way relieves Israel of its obligations, this immediate context forms the
inescapable backdrop for the legal analysis of Israel’s actions even at this stage of the proceedings.
V. THE APPROPRIATE LEGAL FRAMEWORK FOR ANALYSING THE SITUATION IN G AZA
25. South Africa seised the Court on the basis of the Genocide Convention, Article IX of which
provides the Court with jurisdiction to resolve disputes related to the “interpretation, application or
fulfilment” of that treaty, “including those relating to the responsibility of a State for genocide”. This
does not mean that the Genocide Convention provides the appropriate legal prism through which to
analyse the situation.
26. In my view, the appropriate legal framework for analysing the situation in Gaza is
International Humanitarian Law (IHL) and not the Genocide Convention. IHL provides that harm
to innocent civilians and civilian infrastructure should not be excessive in comparison to the military
advantage anticipated from a strike. The tragic loss of innocent lives is not considered unlawful so
long as it falls within the rules and principles of IHL.
27. The drafters of the Genocide Convention clarified in their discussions that
“[t]he infliction of losses, even heavy losses, on the civilian population in the course of
operations of war, does not as a rule constitute genocide. In modern war belligerents
normally destroy factories, means of communication, public buildings, etc. and the
civilian population inevitably suffers more or less severe losses. It would of course be
desirable to limit such losses. Various measures might be taken to achieve this end, but
this question belongs to the field of the regulation of the conditions of war and not to
that of genocide.”11
10 Rome Statute, Articles 2 (a) (viii) and 2 (c) (iii).
11 UN Economic and Social Council, Draft Convention on the Crime of Genocide, Section II: Comments Article by Article, E/447 (17 June 1947), reproduced in Abtahi and Webb, The Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff 2008), p. 231.
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28. Violations of IHL occurring in the context of the armed conflict, must be investigated and
prosecuted by the competent Israeli authorities.
VI. LACK OF INTENT
29. Central to the crime of genocide is the element of intent, namely the intent to destroy, in
whole or in part, a national, ethnic, racial, or religious group as such. International courts have been
reluctant to establish such intent and characterize atrocities as genocide. The International Criminal
Tribunal for Rwanda (ICTR) was established primarily to prosecute the crime of genocide.
Nonetheless, it set a high threshold for proving the specific intent required for genocide. In its very
first case, the Akayesu case, the ICTR described the required specific intent as a “psychological
relationship between the physical result and the mental state of the perpetrator” which “demands that
the perpetrator clearly seeks to produce the act charged”12. This high bar explains some of the full or
partial acquittals at the ICTR13. An analogous bar was also adopted by the International Criminal
Tribunal for Yugoslavia.
30. The Court, with regard to State responsibility, has similarly adopted a restrictive approach
in cases involving genocide on the merits. In Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the
Court concluded that save in the case of Srebrenica the widespread and serious atrocities
committed in Bosnia and Herzegovina were not carried out with the specific intent to destroy, in part,
the Bosnian Muslim group (Judgment, I.C.J. Reports 2007 (I), p. 194, para. 370). Some years later,
in Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), the Court found that the required intent was lacking altogether and therefore
dismissed Croatia’s claims in their entirety (Judgment, I.C.J. Reports 2015 (I), p. 154, para. 524).
31. I accept that the proof of intent required at this preliminary stage is different from the one
required at the merits stage. It is not necessary, at this stage, to convincingly show the mens rea of
genocide by reference to particular circumstances, or for a pattern of conduct to be such that it could
only point to the existence of such intent14. However, some proof of intent is necessary. At the very
least, sufficient proof to make a claim of genocide plausible.
*
32. I strongly disagree with the Court’s approach regarding plausibility and, in particular, I
disagree on the question of intent.
33. The Court may indicate provisional measures “only if it is satisfied that the rights asserted
by the party requesting such measures are at least plausible” (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. 18, para. 43). In the present case, the
12 ICTR-96-4-T, Trial Chamber Judgment, 2 September 1998, para. 518.
13 Of the 75 defendants whose trials were concluded before the ICTR, 14 were acquitted of all charges and several others were acquitted of genocide charges, often due to the difficulty of proving the required specific intent. See, e.g., ICTR-99-50-A, Appeal Judgement, 4 February 2013, para. 91; ICTR-99-52-A, Appeal Judgment, 28 November 2007,
para. 912.
14 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 67, para. 148.
- 7 -
Court concluded, with scant evidence, that “the right of the Palestinians in Gaza to be protected from
acts of genocide” is plausible (Order, para. 54).
34. To understand the Court’s erroneous approach, it is important to compare the present case
to the Gambia case: 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. To conclude that the asserted rights were plausible, in the Gambia case, the Court
relied on two reports issued by an Independent International Fact-Finding Mission (IIFFM)15. These
reports were based on the meticulous collection of evidence over two years, which included
400 interviews with victims and eyewitnesses, analysis of satellite imagery, photographs and videos,
the cross-checking of information against credible secondary information, expert interviews and raw
data16. The independent experts travelled to Bangladesh, Indonesia, Malaysia and Thailand to
interview victims and witnesses and hold other meetings. Furthermore, the Mission’s secretariat
undertook six additional field missions17. In its report of 12 September 2018, the IIFFM concluded
that there were “reasonable grounds to conclude that serious crimes under international law ha[d]
been committed”, including genocide18. The IIFFM also stated that “on reasonable grounds . . . the
factors allowing the inference of genocidal intent [were] present”19. The IIFFM reiterated its
conclusions, based on further investigations, in its second report of 8 August 2019.20
35. In the present case, there is no evidence comparable to that available to the Court in the
Gambia case. To determine the plausibility of rights in the present case, the Court relies on four sets
of facts. First, it looks at the figures for deaths, injuries and damage to infrastructure reported by the
United Nations Office for the Coordination of Humanitarian Affairs (OCHA) (see Order, para. 46).
Second, it relies on a statement made by the Under-Secretary-General of OCHA (see Order,
para. 47), a report of the World Health Organization (see Order, para. 48), and a statement by the
Commissioner-General of UNRWA (see Order, para. 49). Third, it notes the statements of three
Israeli officials (see Order, para. 52). Fourth, it considers the views expressed by a group of Special
Rapporteurs and the CERD Committee (see Order, para. 53).
36. Regarding the figures for death, injuries and damage to infrastructure, the Court omits to
mention that such figures come from the Ministry of Health of Gaza, which is controlled by Hamas.
They are not the United Nations’ figures. Furthermore, these figures do not distinguish between
civilians and combatants, or between military objectives and civilian objects. It is difficult to draw
any conclusions from them.
The statements by the Under-Secretary-General of OCHA, the WHO and the
Commissioner-General of UNRWA are insufficient to prove plausible intent. None of these
statements mention the term genocide or point to any trace of intent. They indeed describe a tragic
humanitarian situation, which is the unfortunate result of an armed conflict, but there is no reference
15 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. 22, para. 55.
16 United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, UN doc.
A/HRC/39/64, 12 September 2018, para. 37.
17 United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, UN doc.
A/HRC/39/64, 12 September 2018, para. 37.
18 See United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/39/64, 12 September 2018, paras. 83 and 84-87.
19United Nations, Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/39/CRP.2, 17 September 2018, para. 1441.
20 United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, UN doc.
A/HRC/42/50, 8 August 2019, para. 18.
- 8 -
to the subject-matter of the Genocide Convention. Furthermore, the Court is unaware of the
underlying information or methodology used by the individuals who made these statements. This is
in stark contrast to the evidence available to the Court in the Gambia case.
The declarations made by the President of Israel and the Minister of Defence of Israel are not
a sufficient factual basis for inferring a plausible intent of genocide. Both authorities have issued
several statements clarifying that Israel’s intent is the destruction of Hamas, not the Palestinians in
Gaza. For example, on 29 October 2023, Israel’s Minister of Defence, stated that “we are not fighting
the Palestinian multitude and the Palestinian people in Gaza”. On 29 November 2023, the President
of Israel said that “Israel is doing all it can, in cooperation with various partners, to increase the flow
of humanitarian aid to the citizens of Gaza”. Regretfully, the Court did not take note of these
statements. Finally, regarding the statements made by the Minister of Energy and Infrastructure, the
latter is not an official with authority over the military. The relevant factual basis allowing for an
inference of intent to commit genocide must stem from the organs which are capable of having an
effect on the military operations. These organs have repeatedly explained that the purpose of the
military operation is to target Hamas, not the Palestinians in Gaza.
37. It is concerning that certain Israeli officials have used inappropriate and degrading
language, as noted by the group of Special Rapporteurs and the CERD Committee. Indeed, it is an
issue that will have to be investigated by the competent Israeli authorities. However, to infer an intent
to commit genocide from these statements, which were made in the wake of horrific attacks against
the Israeli population, is plainly implausible.
38. The evidence presented by Israel shows that it is the opposite intent that is plausible and
guides the military operation in Gaza. Israel pointed out that it has adopted several measures to
minimize the impact of hostilities on civilians. For example, Israel continues to supply its own water
to Gaza by two pipelines; it has increased access to medical supplies, facilitated the establishment of
field hospitals and distributed fuel and winter equipment (see Order, para. 64, referring to CR 2024/2,
pp. 50-52). Furthermore, the Prime Minister of Israel stated on 17 October 2023 “[a]ny civilian death
is a tragedy . . . we’re doing everything we can to get the civilians out of harm’s way,” and on
28 October 2023 that “the IDF is doing everything possible to avoid harming those not involved”.
39. It is surprising that the Court took note of Israel’s statements explaining the steps it has
taken to alleviate the conditions faced by the population in Gaza, together with the
Attorney General’s statement announcing the investigation of any calls for the intentional harm to
civilians (see Order, para. 73), but then it completely failed to draw conclusions from these
statements when examining the existence of intent. It is even more surprising that the Court did not
view any of these measures and statements as sufficient to rule out the existence of a plausible intent
to commit genocide.
40. The Court’s approach to plausibility in the present case is not akin to the one it took in the
Gambia case, where the Court had compelling evidence of “clearance operations” committed against
the Rohingya. These “clearance operations” included sexual violence, torture, the methodical
planning of mass killing, denial of legal status, and instigation of hatred based on ethnic, racial, or
religious grounds21.
21 See United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/39/64, 12 September 2018, paras. 27, 52; United Nations, Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/39/CRP.2, 17 September 2018, paras. 458-748, 1140.
- 9 -
41. It is concerning that applying the Genocide Convention in these circumstances would
undermine the integrity of the Convention and dilute the concept of genocide. The Genocide
Convention seeks to prevent and punish the physical destruction of a group as such. It is not meant
to ban armed conflict altogether. The Court’s approach opens the door for States to misuse the
Genocide Convention in order to curtail the right of self-defence, in particular in the context of
attacks committed by terrorist groups.
VII. THE MEASURES INDICATED BY THE COURT
42. I now turn to the measures indicated by the Court. It is important to recall that the Court
has not made any findings with regard to South Africa’s claims under the Genocide Convention. The
conclusions reached by the Court in this preliminary stage do not prejudge in any way the claims
brought by South Africa, which remain wholly unproven (see Order, paras. 30 and 62).
43. Regarding the conditions for the Court to indicate provisional measures, for the reasons
stated above, I am not persuaded by South Africa’s arguments on the plausibility of rights, since
there is no indication of an intent to commit genocide. This is why I voted against the first and second
provisional measures indicated by the Court. Nevertheless, it is of the utmost importance to highlight
that the first and second measures indicated by the Court merely restate obligations that Israel already
has under Articles I and II of the Genocide Convention. The Court has made explicit what is already
implicit in light of Israel’s existing obligations under the Convention.
44. Although I am convinced that there is no plausibility of genocide, I voted in favour of the
third and fourth provisional measures.
With regard to the third measure, which concerns acts of public incitement, I have voted in
favour in the hope that the measure will help to decrease tensions and discourage damaging rhetoric.
I have noted the concerning statements by some authorities, which I am confident will be dealt with
by the Israeli institutions.
With regard to the fourth measure, I voted in favour, guided by my deep humanitarian
convictions and the hope that this will alleviate the consequences of the armed conflict for the most
vulnerable. Through this measure, the Court reminds Israel of essential international obligations,
which are already present in the DNA of the Israeli military. This measure will ensure that Israel
continues to enable the delivery of humanitarian aid to Gaza, which I see as an obligation arising
under IHL.
45. However, it is regretful that the Court was unable to order South Africa to take measures
to protect the rights of the hostages and to facilitate their release by Hamas. These measures are based
on IHL, as are those enabling the provision of humanitarian aid. Moreover, the fate of the hostages
is an integral part of the military operation in Gaza. By taking measures to facilitate the release of
the hostages, South Africa could play a positive role in bringing the conflict to an end.
46. I voted against the fifth provisional measure, which concerns the preservation of evidence.
I did not vote against this measure because evidence is not important, but because South Africa has
not shown that Israel has destroyed or concealed evidence. This claim is baseless and therefore should
not have been entertained by the Court.
*
- 10 -
47. Genocide is a shadow over the history of the Jewish people, and it is intertwined with my
own personal experience. The idea that Israel is now accused of committing genocide is very hard
for me personally, as a genocide survivor deeply aware of Israel's commitment to the rule of law as
a Jewish and democratic State. Throughout my life, I have worked tirelessly to ensure that the object
and purpose of the Genocide Convention is realized in practice; and I have fought to make sure that
genocide disappears from our lives.
48. Had the Court granted South Africa’s request to put an immediate end to the military
operation in Gaza, Israel would have been left defenceless in the face of a brutal assault, unable to
fulfil its most basic duties vis-à-vis its citizens. It would have amounted to tying both of Israel’s
hands, denying it the ability to fight even in accordance with international law. Meanwhile, the hands
of Hamas would have been free to continue harming Israelis and Palestinians alike.
49. It is with great respect that I have joined this Court as an ad hoc judge. I was appointed by
Israel; I am not an agent of Israel. My compass is the search for morality, truth and justice. It is to
protect these values that Israel’s daughters and sons have selflessly paid with their lives and dreams,
in a war that Israel did not choose.
(Signed) Aharon BARAK.
* * *
26 JANUARY 2024
ORDER
APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT
OF THE CRIME OF GENOCIDE IN THE GAZA STRIP
(SOUTH AFRICA v. ISRAEL)
___________
APPLICATION DE LA CONVENTION POUR LA PRÉVENTION ET LA RÉPRESSION
DU CRIME DE GÉNOCIDE DANS LA BANDE DE GAZA
(AFRIQUE DU SUD c. ISRAËL)
26 JANVIER 2024
ORDONNANCE
TABLE OF CONTENTS
Paragraphs
CHRONOLOGY OF THE PROCEDURE 1-12
I. INTRODUCTION 13-14
II. PRIMA FACIE JURISDICTION 15-32
1. Preliminary observations 15-18
2. Existence of a dispute relating to the interpretation, application or
fulfilment of the Genocide Convention 19-30
3. Conclusion as to prima facie jurisdiction 31-32
III. STANDING OF SOUTH AFRICA 33-34
IV. THE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE LINK BETWEEN
SUCH RIGHTS AND THE MEASURES REQUESTED 35-59
V. RISK OF IRREPARABLE PREJUDICE AND URGENCY 60-74
VI. CONCLUSION AND MEASURES TO BE ADOPTED 75-84
OPERATIVE CLAUSE 86
___________
INTERNATIONAL COURT OF JUSTICE
YEAR 2024
2024 26 January
General List
No. 192
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 Articles 73, 74 and 75 of
the Rules of Court,
Makes the following Order:
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1. On 29 December 2023, the Republic of South Africa (hereinafter “South Africa”) filed in
the Registry of the Court an Application instituting proceedings against the State of Israel (hereinafter
“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”).
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 Convention on the Prevention and
Punishment of the Crime of Genocide, in relation to the members of the Palestinian
group, to take all reasonable 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 Articles 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 Palestinians 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;
(c) must ensure that persons committing genocide, conspiring to commit genocide,
directly and publicly inciting genocide, attempting to commit genocide and
complicit in genocide contrary 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 collection 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 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
- 3 -
(f) must offer assurances and guarantees of non-repetition of violations 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 Articles 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 control, 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 Prevention 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;
(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.
- 4 -
(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
(c) the destruction of Palestinian life in Gaza.
(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 genocide, 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 allegations 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.”
6. The Deputy-Registrar immediately communicated to the Government of Israel the
Application containing the Request for the indication of provisional 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 notified 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.
- 5 -
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 indication 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 control, 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 Prevention and Punishment of the
Crime of Genocide, in relation to the Palestinian people, take all reasonable
measures within their power to prevent genocide.
- 6 -
(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;
(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.
(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;(c) the destruction of Palestinian life in Gaza.
(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, direction or influence, do not commit any acts described in (4) and (5)
above, or engage in direct and public incitement to commit genocide, 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 allegations 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.
- 7 -
(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 submitted 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 civilian 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.
14. The ongoing conflict in Gaza has been addressed in the framework of several organs and
specialized agencies of the United Nations. In particular, 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.
- 8 -
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
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. 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 Article 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 interpretation,
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.
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, application 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, Hungary 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
Convention 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).
- 9 -
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 multilateral 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 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 General 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 Applicant 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 mentions 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 Applicant 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 contravention 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 Convention”. The acts in question, according to South Africa, include
- 10 -
killing Palestinians in Gaza, causing them serious bodily and mental harm, inflicting 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 and complicity in genocide, contrary to Articles III and IV of the Genocide 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
allegations 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 indirectly to South
Africa, are not sufficient to prove the existence of a “positive opposition” of views, as required by
the Court’s jurisprudence. The Respondent 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 Directorate 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.
* *
- 11 -
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 document, 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 Convention”. South
Africa recalled this statement in its Note Verbale of 21 December 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.
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 Convention, the Court recalls that South Africa
considers Israel to be responsible for committing genocide in Gaza and for failing to prevent and
punish genocidal 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 genocide and complicity in genocide”.
- 12 -
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. 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. 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 concerning 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, suppression 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 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 relevant 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. Accordingly, the Court found that any State party to the Genocide
Convention may invoke the responsibility of another State party, including through the institution 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. 516-517, 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 obligations under the Genocide Convention.
- 13 -
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 Article 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 plausible (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).
* *
37. South Africa argues that it seeks to protect the rights of the Palestinians 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
commit 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 contends 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 incontrovertibly a pattern
of conduct and related intention that justifies a plausible claim of genocidal acts”. It alleges, in
particular, the commission of the following 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 conducted, 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 Convention”.
- 14 -
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”. According 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 Convention. 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 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. According 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
announcement 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
statements 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 purpose 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 hostage 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 evaluation
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;
- 15 -
(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;
(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, para. (b)), direct and public
incitement to commit genocide (Article III, para. (c)), attempt to commit genocide (Article III,
para. (d)) and complicity in genocide (Article III, para. (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 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 Article 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 significant enough to have an impact on the group as a whole.”
(Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (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, according to United Nations sources, the Palestinian population of the Gaza
Strip comprises over 2 million people. Palestinians in the Gaza Strip form a substantial 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 Palestinians have been killed, over 63,000 injuries
have been reported, over 360,000 housing units have been destroyed or partially damaged and
approximately 1.7 million persons have been internally displaced (see United Nations Office for the
Coordination of Humanitarian Affairs (OCHA), Hostilities in the Gaza Strip and Israel reported
impact, Day 109 (24 Jan. 2024)).
- 16 -
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 cases, critically short of all supplies, and inundated by desperate people seeking safety.
A public health disaster is unfolding. Infectious diseases are spreading 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 Jan. 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’: experiencing an extreme lack of food and starvation
and having resorted to selling off their possessions and other extreme measures to afford
a simple meal. Starvation, destitution and death are evident.” (WHO, “Lethal
combination of hunger and disease to lead to more deaths in Gaza”, 21 Dec. 2023; see
also World Food Programme, “Gaza on the brink as one in four people face extreme
hunger”, 20 Dec. 2023.)
49. The Court further notes the statement issued by the Commissioner-General of the
United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA),
Mr Philippe Lazzarini, on 13 January 2024:
“It’s been 100 days since the devastating war started, killing and displacing
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.
- 17 -
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.
This war affected more than 2 million people the entire population of Gaza.
Many will carry lifelong scars, both physical and psychological. 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 diseases are spreading, including among children.
They live through the unlivable, 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. Thousands 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
Lazzarini, Commissioner-General of UNRWA, 13 Jan. 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 Jan. 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 international law.
Unequivocally. It is an entire nation out there that is responsible. 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. But we are at war. We are at war. We are at war. We are defending our
- 18 -
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 Infrastructure 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 genocidal
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 concerned 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 adjudicated.
*
57. Israel considers that the measures requested go beyond what is necessary to protect rights
on an interim basis and therefore have no link with the rights sought to be protected. The Respondent
contends, inter alia, that granting the first and second measures sought by South Africa (see
- 19 -
paragraph 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 provisional 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 indicate provisional
measures when irreparable prejudice could be caused to rights which are the subject of judicial
proceedings or when the alleged disregard of such rights may entail irreparable consequences (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. 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.
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.
* *
- 20 -
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 Genocide 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 prejudice, with an average of 247 Palestinians being
killed, 629 wounded and 3,900 Palestinian homes damaged or destroyed each day. Moreover,
Palestinians 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 Genocide Convention go unchecked”, the opportunity to collect and
preserve evidence for the merits stage of the proceedings would be seriously undermined, 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
continues 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 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, according 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 resolution 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 contributions represented by these human groups, and is
contrary to moral law and to the spirit and aims of the United Nations”.
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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 Genocide 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:
“The health-care system in Gaza is collapsing . . .
Nowhere is safe in Gaza.
Amid constant bombardment by the Israel Defense Forces, and without 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 Dec.
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 observing 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 Jan. 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
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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 Jan. 2024.)
70. The Court considers that the civilian population in the Gaza Strip remains extremely
vulnerable. It recalls that the military operation conducted 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 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 irreparable 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 irreparable 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 example, Application of
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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 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 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.
*
* *
- 24 -
83. The Court recalls that its Orders on provisional measures under Article 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), 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 submit arguments
in respect of those questions.
*
* *
85. The Court deems it necessary to emphasize that all parties to the conflict 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:
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(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;
IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham,
Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant;
Judge ad hoc Moseneke;
AGAINST: Judge Sebutinde; Judge ad hoc Barak;
(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 Tomka, 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 Tomka, 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 Tomka, Abraham,
Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant;
Judges ad hoc Barak, Moseneke;
AGAINST: Judge Sebutinde;
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(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
Palestinian group in the Gaza Strip;
IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham,
Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant;
Judge ad hoc Moseneke;
AGAINST: Judge Sebutinde; Judge ad hoc Barak;
(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 Tomka, 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.
(Signed) Joan E. DONOGHUE,
President.
(Signed) Philippe GAUTIER,
Registrar.
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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.
(Initialled) J.E.D
(Initialled) Ph.G.
___________
* * *
DISSENTING OPINION OF JUDGE SEBUTINDE
In my respectful dissenting opinion the dispute between the State of Israel and the people of
Palestine is essentially and historically a political one, calling for a diplomatic or negotiated
settlement, and for the implementation in good faith of all relevant Security Council resolutions by all parties concerned, with a view to finding a permanent solution whereby the Israeli and Palestinian peoples can peacefully coexist It is not a legal dispute susceptible of judicial settlement by the Court Some of the preconditions for the indication of provisional measures have not been met South Africa has not demonstrated, even on a prima facie basis, that the acts allegedly committed by Israel and of which the Applicant complains, were committed with the necessary genocidal intent, and that as a result, they are capable of falling within the scope of the Genocide Convention Similarly, since the acts allegedly committed by Israel were not accompanied by a genocidal intent, the Applicant has not demonstrated that the rights it asserts and for which it seeks protection through the indication of provisional measures are plausible under the Genocide Convention The provisional measures indicated by the Court in this Order are not warranted.
I. INTRODUCTION: CONTEXT
A. Limited scope of the provisional measures Order
1. Given the unprecedented global interest and public scrutiny in this case, as can be gathered
from, inter alia, media reports and global demonstrations, the reader of the present Order must be
cautious not to assume or conclude that, by indicating provisional measures, the Court has already
made a determination that the State of Israel (“Israel”) has actually violated its obligations under the
Genocide Convention. This is certainly not the case at this stage of the proceedings, since such a
finding could only be made at the stage of the examination of the merits in this case (see Order,
paragraph 30). Nor must one assume that the Court has definitively determined whether the rights
that the Republic of South Africa (“South Africa”) asserts, and for which the Applicant seeks
protection pendente lite, actually exist. At this stage, the Court is only concerned with the
preservation through the indication of provisional measures of those rights that the Court may
subsequently adjudge to belong to either Party, pending its final decision in the case (see Order,
paragraphs 35-36). In this regard, the Court has stated as follows:
“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 the
Genocide Convention, but to determine whether the circumstances require the
indication of provisional measures for the protection of rights under this instrument.
[The Court] cannot at this stage make definitive findings of fact, 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.” (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, pp. 24-25, para. 66.)
2. Similarly, one should not make the mistaken assumption that the Court has already
determined that it has jurisdiction to entertain South Africa’s claims on the merits or that it has
already found those claims to be admissible. Both of those issues are to be determined at a later phase
of the case, after South Africa and Israel have each had an opportunity to submit arguments in relation
thereto (see Order, paragraph 84).
- 2 -
B. The Court’s jurisdiction is limited to the Genocide Convention and does not extend to grave breaches of international humanitarian law
3. In its Application instituting proceedings before the Court, South Africa invoked, as a basis
for the Court’s jurisdiction, Article IX of the Convention on the Prevention and Punishment of the
Crime of Genocide (“Genocide Convention”) and Article 36, paragraph (1), of the Statute of the
Court. Both South Africa and Israel are parties to the Genocide Convention, without reservation (see
Order, paragraph 18). Accordingly, for the purposes of the provisional measures Order, the Court’s
prima facie jurisdiction is limited to the Genocide Convention and does not extend to alleged
breaches of international humanitarian law (“IHL”). Thus, while it is not inconceivable that grave
violations of international humanitarian law amounting to war crimes or crimes against humanity
could have been committed against the civilian populations both in Israel and in Gaza (a matter over
which the Court has no jurisdiction in the present case), such grave violations do not, in and of
themselves, constitute “acts of genocide” as defined in Article II of the Genocide Convention, unless
it can be demonstrated that they were committed “with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such”.
C. The controversy between Israel and Palestine is historically a political one
4. Furthermore, I am also strongly of the view that the controversy or dispute between the
State of Israel and the people of Palestine is essentially and historically a political or territorial (and,
I dare say, ideological) one. It calls not only for a diplomatic or negotiated settlement, but also for
the implementation in good faith of all relevant Security Council resolutions by all parties concerned,
with a view to finding a permanent solution whereby the Israeli and Palestinian peoples can
peacefully coexist. It is my considered opinion that the dispute or controversy is not a legal one
calling for judicial settlement by the International Court of Justice. Unfortunately, the failure,
reluctance or inability of States to resolve political controversies such as this one through effective
diplomacy or negotiations may sometimes lead them to resort to a pretextual invocation of treaties
like the Genocide Convention, in a desperate bid to force a case into the context of such a treaty, in
order to foster its judicial settlement: rather like the proverbial “Cinderella’s glass slipper”. In my
view, the present case falls in this category, and it is precisely for this, and other reasons articulated
in this dissenting opinion, that I have voted against the provisional measures indicated by the Court
in operative paragraph 86 of this Order. An appreciation of the historical controversy between the
State of Israel and the people of Palestine is a necessary prerequisite to appreciating the context in
which the Court is seised with the present case.
II. POLITICAL CONTEXT OF THE ISRAELI-PALESTINIAN CONFLICT
5. The United Nations has been heavily involved in the Israeli-Palestinian conflict throughout
its history. In 1947, only two years after the founding of the United Nations, the General Assembly
recommended a plan of partition regarding the government of the Mandate of Palestine. That plan
provided for the creation of two independent States — one Jewish and one Arab — in recognition of
the dual rights of self-determination by the Jewish and Arab inhabitants of the land (General
Assembly resolution 181 (II) of 29 November 1947). This laid the foundation for the creation of the
State of Israel in May 1948. Unfortunately, the rejection of the partition plan by certain Arab leaders
and the outbreak of war in 1948 prevented the realization of the laudable goal of two States for two
peoples. Since that time, and in particular since the Israeli seizure of the West Bank and Gaza Strip
in the 1967 Arab-Israeli war, the United Nations has remained seised of the conflict.
6. In 1967, the Security Council in its resolution 242 affirmed that “the establishment of a just
and lasting peace in the Middle East” required the fulfilment of the two interdependent conditions of
- 3 -
Israeli withdrawal from territories it had seized in the conflict and recognition of Israel’s sovereignty,
territorial integrity and “right to live in peace within secure and recognized boundaries free from
threats or acts of force” (Security Council resolution 242 of 22 November 1967). In 1973, in
resolution 338, which called for a ceasefire in the 1973 Arab-Israeli war, the Security Council again
decided that “immediately and concurrently with the ceasefire, negotiations shall start between the
parties concerned under appropriate auspices aimed at establishing a just and durable peace in the
Middle East” (Security Council resolution 338 of 22 October 1973). This emphasis on the
importance of the Israeli-Palestinian and broader Arab-Israeli peace process was subsequently
affirmed by the General Assembly, which has emphasized the need to achieve a “just and
comprehensive settlement of the Arab-Israeli conflict” (General Assembly resolution 47/64 (D) of
11 December 1992).
7. The international community’s focus on encouraging negotiation between the parties has
borne fruit, including the 1979 peace treaty between Israel and Egypt and 1994 peace agreement
between Israel and Jordan. Most notably, the 1993 Oslo Accords resulted in the recognition by the
Palestinian Liberation Organization (“PLO”) of the State of Israel and the recognition by Israel of
the PLO as the representative of the Palestinian people. The Declaration of Principles on Interim
Self-Government Arrangements, signed by representatives of both parties, endorsed the framework
set out in Security Council resolutions 242 and 338 and expressed the parties’ agreement on the need
to “put an end to decades of confrontation and conflict, recognize their mutual legitimate and political
rights, and strive to live in peaceful coexistence and mutual dignity and security and achieve a just,
lasting and comprehensive peace settlement and historic reconciliation through the agreed political
process” (Declaration of Principles on Interim Self-Government Arrangements, 13 September 1993).
Although the Oslo Accords have not yet been fully implemented, they continue to bind the parties
concerned and to provide a framework for allocating responsibilities between Israeli and Palestinian
authorities and informing future negotiations.
8. Since that time, the United Nations has repeatedly affirmed the need for negotiations aimed
at achieving a two-State solution and resolving the dispute between Israel and Palestine. In 2003, the
Security Council, in resolution 1515, “[e]ndorse[d] the Quartet Performance-based Roadmap to a
Permanent Two-State Solution to the Israeli-Palestinian Conflict” (the Quartet was composed of
representatives of the United States, European Union, Russian Federation and United Nations)
(Security Council resolution 1515 of 19 November 2003). In that resolution, the Security Council
“[c]all[ed] on the parties to fulfil their obligations under the Roadmap in cooperation with the Quartet
and to achieve the vision of two States living side by side in peace and security” (ibid.). Similarly,
the Security Council in 2008 declared its support for negotiations between the parties and
“support[ed] the parties’ agreed principles for the bilateral negotiating process and their determined
efforts to reach their goal of concluding a peace treaty resolving all outstanding issues” (Security
Council resolution 1850 of 16 December 2008). In 2016, the Security Council again recalled both
parties’ obligations and “[c]alled upon all parties to continue, in the interest of the promotion of peace
and security, to exert collective efforts to launch credible negotiations on all final status issues in the
Middle East peace process” (Security Council resolution 2334 of 23 December 2016). In this regard,
the Security Council “urg[ed] . . . the intensification and acceleration of international and regional
diplomatic efforts and support aimed at achieving without delay a comprehensive, just and lasting
peace in the Middle East” (ibid.).
9. The General Assembly has likewise regularly recalled the Oslo Accords and the Quartet
Roadmap in its resolutions regarding the Israeli-Palestinian Conflict. For example, the General
Assembly has:
“[r]eiterate[d] its call for the achievement, without delay, of a comprehensive, just and
lasting peace in the Middle East on the basis of the relevant United Nations resolutions,
- 4 -
including Security Council resolution 2334 (2016), the Madrid terms of reference,
including the principle of land for peace, the Arab Peace Initiative and the Quartet road
map, and an end to the Israeli occupation that began in 1967, including of East
Jerusalem, and reaffirms in this regard its unwavering support, in accordance with
international law, for the two-State solution of Israel and Palestine, living side by side
in peace and security within recognized borders, based on the pre-1967 borders”. (See
General Assembly resolution 77/25 of 6 December 2022; General Assembly
resolution 76/10 of 1 December 2021; General Assembly resolution 75/22 of
2 December 2020.)
10. Finally, the Court has itself previously pronounced on the importance of continued
negotiations. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, the Court explained:
“Since 1947, the year when General Assembly resolution 181 (II) was adopted
and the Mandate for Palestine was terminated, there has been a succession of armed
conflicts, acts of indiscriminate violence and repressive measures on the former
mandated territory. The Court would emphasize that both Israel and Palestine are under
an obligation scrupulously to observe the rules of international humanitarian law, one
of the paramount purposes of which is to protect civilian life. Illegal actions and
unilateral decisions have been taken on all sides, whereas, in the Court’s view, this tragic
situation can be brought to an end only through implementation in good faith of all
relevant Security Council resolutions, in particular resolutions 242 (1967) and 338
(1973). The ‘Roadmap’ approved by Security Council resolution 1515 (2003)
represents the most recent of efforts to initiate negotiations to this end. The Court
considers that it has a duty to draw the attention of the General Assembly, to which the
present Opinion is addressed, to the need for these efforts to be encouraged with a view
to achieving as soon as possible, on the basis of international law, a negotiated solution
to the outstanding problems and the establishment of a Palestinian State, existing side
by side with Israel and its other neighbours, with peace and security for all in the
region.” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 200-201, para. 162.)
11. As can be seen from the above history, it is clear that a permanent solution to the Israeli-
Palestinian conflict can only result from good faith negotiations between Israeli and Palestinian
representatives working towards the achievement of a just and sustainable two-State solution.
A solution cannot be imposed from outside, much less through judicial settlement. This context must
be kept in mind in assessing South Africa’s Application and Request for the indication of provisional
measures.
III. THE EVENTS OF 7 OCTOBER 2023
12. On 7 October 2023, thousands of members of the Harakat al-Muqawama al-Islamiya
(“Islamic Resistance Movement” or “Hamas”), a Palestinian Sunni Islamic political and military
organization governing the Gaza Strip, invaded the territory of the State of Israel under cover of
thousands of rockets fired indiscriminately into Israel and committed massacres, mutilations, rapes
and abductions of hundreds of Israeli civilians, including men, women and children. (Israel reports
that over 1,200 people were murdered that day, more than 5,500 maimed, and over 240 hostages
abducted, including infants, entire families, the elderly, the disabled, as well as Holocaust survivors.)
According to Israel, most of the hostages remain in captivity or are simply unaccounted for and many
have been tortured, sexually abused, starved or killed while in captivity.
- 5 -
13. Soon after the 7 October attack, Israel, in exercise of what it describes as “its right to
defend itself”, launched a “military operation” into the Gaza Strip whose objective was, first, to
defeat Hamas and its network and, secondly, to rescue the Israeli hostages. South Africa claims that
as a result of the armed conflict that ensued between Israel and Hamas over the past 11 weeks,
1.9 million Palestinians living in Gaza (85 per cent of the population) have been internally displaced;
over 22,000 Palestinians, including over 7,729 children, have been killed; over 7,780 are missing
and/or presumed dead under the rubble; over 55,243 are severely injured or have suffered mental
harm; and vast areas of Gaza, including entire neighbourhoods have been destroyed including
355,000 homes, places of worship, cemeteries, cultural and archaeological sites, hospitals and other
critical infrastructure.
14. On 28 December 2023, South Africa filed an Application with the Registry instituting
proceedings against Israel concerning alleged violations of the Genocide Convention. South Africa
alleges that the acts taken by Israel against the Palestinian people in the wake of the attacks in Israel
of 7 October 2023 are genocidal in character because “they are intended to bring about the destruction
of a substantial part of the Palestinian national, racial and ethnical group, that being the part of the
Palestinian group in the Gaza Strip” (Application, para. 1). In South Africa’s view, Israel has violated
its obligations under the Genocide Convention in several respects, including by failing to prevent
genocide; committing genocide; and failing to prevent or punish the direct and public incitement to
genocide. The requests of South Africa are accurately rehearsed in paragraph 2 of the Application.
15. In addition to the Application, South Africa has requested that the Court indicate
provisional measures. The provisional measures requested by the Applicant at the end of its oral
observations are accurately rehearsed in paragraph 11 of the Application. For its part, Israel, whilst
acknowledging that the events of 7 October 2023 and the ensuing war between Hamas and Israel
have wracked untold suffering on innocent Israeli and Palestinian civilians, including unprecedented
loss of life, protests the Applicant’s description of Israel’s conduct during this war as “genocide”.
Israel argues that not every conflict is genocidal, nor does the threat or use of force necessarily
constitute an act of genocide within the meaning of Article II of the Genocide Convention. Israel
maintains that, in view of the ongoing threat, brutality and lawlessness of Hamas that it continues to
face, it has an inherent and legitimate duty to protect the Israeli people and territory, in accordance
with international humanitarian law, from attack by an armed group or groups that have openly
declared their intention to annihilate the Jewish State. In Israel’s view, South Africa’s present request
for the indication of provisional measures is tantamount to an attempt to deny Israel its ability to
meet its legal obligation to defend its citizens, rescue its hostages still in Hamas custody and to enable
the over 110,000 internally displaced Israelis to safely return to their homes. In its oral observations,
Israel requests the Court to reject South Africa’s Request for the indication of provisional measures
and to remove the case from the General List.
IV. SOME OF THE CONDITIONS FOR THE INDICATION OF PROVISIONAL MEASURES HAVE NOT BEEN MET
16. The Court has, through its jurisprudence, progressively developed legal standards or
criteria to determine whether it should exercise its power under Article 41 of its Statute to indicate
provisional measures. In the present case, the Court should determine (1) whether it has prima facie
jurisdiction to entertain the alleged dispute between the Parties (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. 217,
para. 24; 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,
pp. 9-17, paras. 16-42); (2) whether the rights asserted by South Africa are plausible and have a link
with the requested measures (Alleged Violations of the 1955 Treaty of Amity, Economic Relations,
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and Consular Rights (Islamic Republic of Iran v. United States of America), Provisional Measures,
Order of 3 October 2018, I.C.J. Reports 2018 (II), p. 638, para. 53); and (3) whether the situation is
urgent and presents a risk of irreparable prejudice to the rights asserted (ibid., pp. 645-646,
paras. 77-78).
A. There are no indicators of a genocidal intent on the part of Israel
17. I am not convinced that all the above criteria for the indication of provisional measures
have been met in the present case. In particular, South Africa has not demonstrated, even on a prima
facie basis, that the acts allegedly committed by Israel, and of which the Applicant complains, were
committed with the necessary genocidal intent and that, as a result, they are capable of falling within
the scope of the Genocide Convention. Similarly, when it comes to the rights that the Applicant
asserts and for which South Africa seeks protection through the indication of provisional measures,
there is no indication that the acts allegedly committed by Israel were accompanied by a genocidal
intent and that, as a result, the rights asserted by the Applicant are plausible under the Genocide
Convention. What distinguishes the crime of genocide from other grave violations of international
human rights law (including those enumerated in Article II, paragraphs (a) to (d), of the Genocide
Convention) is the existence of the “intent to destroy, in whole or in part, a national, ethnical, racial
or religious group, as such”. Accordingly, the acts complained of by South Africa, as well as the
rights correlated to those acts, can only be capable of “falling within the scope of the said
Convention” if a genocidal intent is present, otherwise such acts simply constitute grave violations
of international humanitarian law and not genocide as such.
18. Thus, even at this preliminary stage of provisional measures, the Court should have
examined the evidence put before it to determine whether there are indicators of a genocidal intent
(even if it is not the only inference to be drawn from the available evidence at this stage), in order
for the Court to conclude that the acts complained of by the Applicant are, prima facie, capable of
falling within the scope of the Genocide Convention. Similarly, for purposes of determining
plausibility of rights, it is not sufficient for the Court to only look at allegations of the grave breaches
enumerated in paragraphs (a) to (d) of Article II of the Convention. The rights must be shown to
plausibly derive from the Genocide Convention.
19. In the present case, South Africa claims that at least some of the acts it has complained of
are capable of falling within the scope of the Genocide Convention. These include (1) the killing of
Palestinians in Gaza (in violation of Article II (a)); (2) causing serious bodily or mental harm to the
Palestinians in Gaza (in violation of Article II (b)); (3) deliberately inflicting upon the Palestinians
in Gaza conditions of life calculated to bring about their physical destruction as a group, in whole or
in part (in violation of Article II (c)); and (4) imposing measures intended to prevent births within
the group (in violation of Article II (d)). South Africa further claims that Israel has employed
methods of war that continue to target infrastructure essential for survival and that have resulted in
the destruction of the Palestinian people as a group, including by depriving them of food, water,
medical care, shelter, clothing, lack of hygiene, systematic expulsion from homes or displacement
(in violation of Article II (c)) (see Application, paras. 125-127). South Africa also claims that certain
Israeli officials and politicians have, through their statements, publicly incited the Israeli Defense
Force (“IDF”) to commit genocide (in violation of Article III (c)) and that Israel has failed to punish
those responsible for the above violations. To demonstrate a genocidal intent, South Africa referred
to the “systematic manner” in which Israel’s military operation in Gaza is carried out, resulting in
the acts enumerated in Article II of the Convention, as well as to statements of various Israeli officials
and politicians that, in the Applicant’s view, communicate State policy of Israel and contain
genocidal rhetoric against Palestinians in Gaza, including statements by the Israeli Prime Minister,
the Deputy Speaker of the Israeli Parliament (Knesset), the Defense Minister, the Minister of Energy
and Infrastructure, the Heritage Minister, the President and the Minister for National Security.
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20. Israel contests that it is committing acts of genocide in Gaza or that it has a specific intent
to destroy, in whole or in part, the Palestinian people, as such. Israel emphasized that its war is not
against the Palestinian people as such, but rather is against Hamas, the terrorist organization in
control of Gaza that is bent on annihilating the State of Israel. Israel states that the sole objectives of
its military operation in Gaza are the rescue of Israeli hostages abducted on 7 October 2023 and the
protection of the Israeli people from displacement and from any future attacks by Hamas, including
by neutralizing Hamas’ command structures and machinery. The Respondent further argues that any
genocidal intent alleged by the Applicant is negated by (1) Israel’s restricted and targeted attacks of
legitimate military targets in Gaza; (2) its mitigation of civilian harm by warning them through
leaflets, radio messages and telephone calls of impending attacks; and (3) its facilitation of
humanitarian assistance. Israel also argues that the statements relied upon by South Africa as
containing genocidal rhetoric were all taken out of context and in fact were made in reference to
Hamas, not the Palestinian people as such. Moreover, Israel argued that any other persons who might
have made statements containing genocidal rhetoric were completely outside the policy and decision-
making processes of the State of Israel.
21. As stated above, the tragic events of 7 October 2023 as well as the ensuing war in Gaza
are symptoms of a more deeply engrained political controversy between the State of Israel and the
people of Palestine. Having examined the evidence put forward by each of the Parties, I am not
convinced that a prima facie showing of a genocidal intent, by way of indicators, has been made out
against Israel. The war was not started by Israel but rather by Hamas who attacked Israel on 7 October
2023 thereby sparking off the military operation in Israel’s defence and in a bid to rescue its hostages.
I also must agree that any “genocidal intent” alleged by the Applicant is negated by (1) Israel’s
restricted and targeted attacks of legitimate military targets in Gaza; (2) its mitigation of civilian
harm by warning them through leaflets, radio messages and telephone calls of impending attacks;
and (3) its facilitation of humanitarian assistance. A careful examination of Israel’s war policy and
of the full statements of the responsible government officials further demonstrates the absence of a
genocidal intent. Here I must hasten to add that Israel is expected to conduct its military operation in
accordance with international humanitarian law but violations of IHL cannot be the subject of these
proceedings which are purely pursuant to the Genocide Convention. Unfortunately, the scale of
suffering and death experienced in Gaza is exacerbated not by genocidal intent, but rather by several
factors, including the tactics of the Hamas organization itself which often entails its forces embedding
amongst the civilian population and installations, rendering them vulnerable to legitimate military
attack.
22. Regarding the statements of Israeli top officials and politicians that South Africa cited as
containing genocidal rhetoric, a careful examination of those statements, read in their proper and full
context, shows that South Africa has either placed the quotations out of context or simply
misunderstood the statements of those officials. The vast majority of the statements referred to the
destruction of Hamas and not the Palestinian people as such. Certain renegade statements by officials
who are not charged with prosecuting Israel’s military operations were subsequently highly criticized
by the Israeli Government itself. More importantly, the official war policy of the Israeli Government,
as presented to the Court, contains no indicators of a genocidal intent. In my assessment, there are
also no indicators of incitement to commit genocide.
23. In sum, I am not convinced that the acts complained of by the Applicant are capable of
falling within the scope of the Genocide Convention, in particular because it has not been shown,
even on a prima facie basis, that Israel’s conduct in Gaza is accompanied by the necessary genocidal
intent. Furthermore, the rights asserted by South Africa are not plausible and the Court should not
order the provisional measures requested. But in light of the Court’s Order, I will proceed to consider
the other criteria required for the indication of provisional measures. This brings me to another
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criterion which I also find has not been met, namely that there is no link between the rights asserted
by South Africa and the provisional measures sought.
B. There is no link between the asserted rights and the provisional measures requested by South Africa
24. The next issue is the link between the asserted rights and the measures requested. South
Africa has requested the Court to indicate nine types of measures: The requested measures can be
divided into several categories.
1. First and second measures
25. The first and second requested measures concern Israel’s ongoing military operations in
Gaza. They would not merely require Israel to cease all alleged acts of genocide under Article II
and III of the Convention but would require the suspension of all military operations in Gaza,
regardless of whether Hamas, an organization not party to these proceedings, continues to attack
Israel or continues to hold Israeli hostages. In this respect, Israel would be required to unilaterally
cease hostilities, a prospect I consider unrealistic. These two requested measures appear overly broad
and are not clearly linked with the rights asserted by South Africa. Israel is currently engaged in an
armed conflict with Hamas in response to the Hamas attack on Israeli military and civilian targets on
7 October 2023. Israeli military operations that target members of Hamas and other armed groups
operating in Gaza — as opposed to conduct intended to cause harm to the civilian populace of
Gaza would not appear to fall within the scope of Israel’s obligations under the Genocide
Convention. This is particularly the case for Israeli military operations that comply with international
humanitarian law. Accordingly, the first and second measures do not appear to have a sufficient link
with the asserted rights. A rejection of the first and second requested measures would be consistent
with the Court’s approach in Bosnia v. Serbia and The Gambia v. Myanmar, where the Court
indicated provisional measures but, in doing so, did not bar either Serbia or Myanmar from
continuing their military operations more generally (Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 24, para. 52; 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. 30, para. 86). The measures
indicated were restricted to the commission of acts of genocide.
2. Third measure
26. Although the Applicant requests this measure to apply to both Parties, it is not clear how
South Africa, which is not a party to the conflict in Gaza, would contribute to preserving the rights
of Palestinians in Gaza, much less “prevent genocide”. In reality this measure would apply only to
Israel. That said, to require Israel to “take all reasonable measures within their powers to prevent
genocide” in Gaza would simply be to repeat the obligation already incumbent upon Israel and any
other State party under the Genocide Convention. This measure appears to be redundant.
3. Fourth and fifth measures
27. The fourth requested measure requires Israel to refrain from specific actions that South
Africa considers to be linked with its obligation to desist from committing any of the acts referred to
in Article II, paragraphs (a) to (d) of the Convention. In my view, this measure, like the first and
second, in effect requires Israel to unilaterally stop hostilities with Hamas, which is the only way of
guaranteeing that none of the acts stipulated take place. However, as previously stated, this measure,
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when removed from the requirement of a genocidal intent, merely amounts to a requirement for Israel
to abide by IHL, rather than by its obligations under the Genocide Convention. Similarly, the Fifth
measure, which requires Israel to refrain from deliberately inflicting on Palestinians in Gaza
conditions of life calculated to bring about their destruction in whole or in part, outside the context
of the requirement of a genocidal intent, is tantamount to requiring Israel to comply with its
obligations under IHL, rather than under the Genocide Convention. Thus, while the expulsion and
forced displacement of Palestinians in Gaza from their homes could amount to violations of IHL, the
Court has previously determined in the Bosnia Genocide case that such conduct does not, as such,
constitute genocide. The Court explained that
“[n]either the intent, as a matter of policy, to render an area ‘ethnically homogeneous’,
nor the operations that may be carried out to implement such policy, can as such be
designated as genocide: the intent that characterizes genocide is ‘to destroy, in whole or
in part’ a particular group, and deportation or displacement of the members of a group,
even if effected by force, is not necessarily equivalent to destruction of that group, nor
is such destruction an automatic consequence of the displacement”(Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 123, para. 190).
However, such forced displacement, or other forms of “ethnic cleansing” may constitute genocide if
intended to bring about the physical destruction of the group.
28. Similarly, the deprivation of necessary humanitarian supplies would only constitute
genocide if taken with the requisite special intent. As discussed above, I do not consider that such
special intent exists in this case. Therefore, such a measure is not warranted. The third component of
the fifth measure refers to “the destruction of Palestinian life in Gaza”. This requested measure is
extremely vague and would appear to essentially fall within the requirement for Israel to refrain from
deliberately inflicting conditions of life calculated to bring about the physical destruction of the
Palestinian population of Gaza. It is therefore unclear what would be accomplished by separately
indicating this measure. Accordingly, the Fourth and Fifth measures appear not to be linked to the
rights asserted by the Applicant under the Genocide Convention.
4. Sixth measure
29. The sixth measure is written in such a way that it simply repeats the prohibitions mentioned
in the Fourth and Fifth measures and is therefore not linked to rights asserted by South Africa.
5. Seventh measure
30. The seventh requested measure relates to the preservation of evidence. Although the Court
found the existence of such a link with respect to a similar measure requested and indicated in
Gambia v. Myanmar (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. 24, para. 61), in the present case there is no evidentiary basis for concluding that
Israel is engaged in the deliberate destruction of evidence relating to genocide. Moreover, to the
extent the requested measure concerns the requirement that Israel allow fact-finding missions and
other bodies access to Gaza, it would appear to go beyond Israel’s obligations under the Genocide
Convention. As part of its duties to the Court and to South Africa, Israel may only be required to
preserve evidence under its control. However, a requirement to allow access to Gaza by third parties
does not appear linked with South Africa’s asserted rights. Notably, the Court rejected a similar
request for access by independent monitoring mechanisms made by Canada and the Netherlands in
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Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (Canada and the Netherlands v. Syrian Arab Republic), Provisional Measures, Order
of 16 November 2023, paras. 13 and 83).
6. Eighth and ninth measures
31. With respect to the eighth and ninth requested measures, as previously noted by the Court:
“the question of their link with the rights for which [the Applicant] seeks protection
does not arise, in so far as such measures would be directed at preventing any action
which may aggravate or extend the existing dispute or render it more difficult to resolve,
and at providing information on the compliance by the Parties with any specific
provisional measure indicated by the Court”.
As previously observed, this case is complicated by the fact that in the context of an ongoing war
with Hamas, which is not a party to these proceedings, it would be unrealistic to put limitations upon
one of the belligerent parties but not the other. Israel would justifiably assert its right to defend itself
from Hamas, which would most probably “aggravate the situation in Gaza”. For all the above
reasons, I am of the view that the provisional measures requested by South Africa do not appear to
have a link with South Africa’s asserted rights, and that this criterion for the indication of provisional
measures is also not met.
32. In conclusion, I am not convinced that the rights asserted by South Africa are plausible
under the Genocide Convention, in so far as the acts complained of by the Applicant do not appear
to fall within the scope of that Convention. While those acts may amount to grave violations of IHL,
they are prima facie, not accompanied by the necessary genocidal intent. I also am of the view that
the provisional measures requested by South Africa and not linked to the asserted rights. However, I
would also like to express my opinion regarding the provisional measures actually indicated by the
Court, which in my view are also unwarranted for the reasons stated in this dissenting opinion.
V. THE PROVISIONAL MEASURES INDICATED BY THE COURT
ARE NOT WARRANTED
33. In my view, the First measure obligating Israel to “take all measures within its power to
prevent the commission of all acts within the scope of Article II of [the Genocide] Convention”
effectively mirrors the obligation already incumbent upon Israel under Articles I and II of the
Genocide Convention and is therefore redundant. The Second measure obligating Israel to ensure
“with immediate effect that its military does not commit any acts described in point 1 above” also
seems redundant as it is either already covered under the first measure or is a mirror of the obligation
already incumbent upon Israel under Articles I and II of the Genocide Convention. The Third
measure obligating Israel to “take all measures within its power to prevent and punish the direct and
public incitement to commit genocide” also mirrors the obligation already incumbent upon Israel
under Articles I and III of the Genocide Convention and is therefore redundant. The Fourth measure
obligating Israel to “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” has no link with any of the rights purportedly claimed under the
Genocide Convention. In other words, under that Convention, a State party has no duty to provide or
to enable the provision of, humanitarian assistance, as such. There may be an equivalent duty under
IHL but not the Genocide Convention. Besides, there is evidence before the Court that the provision
of humanitarian assistance is already taking place with the involvement of Israel and other
international organizations, notwithstanding the continuing military operation. The evidence also
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points to an improvement in the provision of basic needs in the affected areas. This measure too
seems unnecessary in the circumstances. Regarding the Fifth measure obligating Israel to “take
effective measures to prevent the destruction and ensure the preservation of evidence related to
allegations of acts within the scope of Articles II and III of the [Genocide] Convention”, there does
not seem to be any evidentiary basis for assuming that Israel is engaged in the deliberate destruction
of evidence as such. Any destruction of infrastructure is not attributable to the deliberate efforts of
Israel to destroy evidence but rather to the exigencies of an ongoing conflict with Hamas, which is
not a party to these proceedings. It is difficult to envisage how one of the belligerent parties can be
expected to unilaterally “prevent the destruction of evidence” while leaving the other one free to
carry on unabated. Finally, in respect of the Sixth measure, given that the other measures are not
warranted, there is no reason for Israel to be required to “submit a report to the Court on all measures
taken to give effect to th[e] Order”.
34. Lastly, a word about the Israeli hostages that remain in the custody of their captors and
their families. I join the majority in expressing the Court’s grave concern about the fate of the
hostages (including children, babies, women, the elderly and sometimes entire families) still held in
custody by Hamas and other armed groups following the attack on Israel of 7 October 2023, and in
calling for their “immediate and unconditional release” (See Order, paragraph 85). I would only add
the following observation. In its Request for provisional measures, South Africa emphasised that
both Parties to these proceedings have a duty to act in accordance with their obligations under the
Genocide Convention in relation to the situation in Gaza, leaving one wondering what positive
contribution the Applicant could make towards defusing the ongoing conflict there. During the oral
proceedings in the present case, it was brought to the attention of the Court that South Africa, and in
particular certain organs of government, have enjoyed and continue to enjoy a cordial relationship
with the leadership of Hamas. If that is the case, then one would encourage South Africa as a party
to these proceedings and to the Genocide Convention, to use whatever influence they might wield,
to try and persuade Hamas to immediately and unconditionally release the remaining hostages, as a
good will gesture. I have no doubt that such a gesture of good will would go a very long way in
defusing the current conflict in Gaza.
VI. CONCLUSION
35. For all the above reasons, I do not believe that the provisional measures indicated by the
Court in this Order are warranted and have accordingly voted against them. I reiterate that in my
respectful opinion the dispute between the State of Israel and the people of Palestine is essentially
and historically a political one, calling for a diplomatic or negotiated settlement, and for the
implementation in good faith of all relevant Security Council resolutions by all parties concerned,
with a view to finding a permanent solution whereby the Israeli and Palestinian peoples can
peacefully coexist.
(Signed) Julia SEBUTINDE.
___________
* * *
DECLARATION OF J UDGE XUE
1. In the present case, I concur with my colleagues in upholding South Africa’s standing, on a
prima facie basis, in instituting proceedings against Israel for breach of its obligations under the
Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”).
I feel obliged to give a short explanation of my position at this stage.
2. The question of Palestine has been on the agenda of the United Nations since the inception
of the Organization. The Palestinian territory is presently under Israel’s occupation and control; the
Gaza Strip constitutes an integral part of the occupied Palestinian territory. The people of Palestine,
including the Palestinians in Gaza, are not yet able to exercise their right to self-determination. In the
Wall Advisory Opinion, the Court recalled the statement in the General Assembly resolution 57/107
of 3 December 2002 that “the United Nations has a permanent responsibility towards the question of
Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with
international legitimacy” (Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 159, para. 49). This
responsibility requires that the United Nations, including its principal judicial organ, ensures that the
Palestinian people are protected under international law, particularly protected from the gravest
crime — genocide.
3. In the past one hundred and nine days, the world was shocked to watch what was unfolding
in Gaza. According to United Nations reports, hostilities between Israeli military and Hamas have
caused tremendous civilian casualties, unprecedented in history. Following the 7 October massacre
and hostage-taking by Hamas, the Israeli military land operation in and air bombardment of Gaza,
targeting civilian buildings, hospitals, schools and refugee camps, coupled with the cut-off of food,
water, fuel, electricity and telecommunication, and the constant denial of humanitarian assistance
from outside, have made Gaza a most dangerous and uninhabitable place. In such a short span of
time, it is reported that at least 25,700 Palestinians have been killed, over 63,740 injured, with over
360,000 housing units destroyed or partially damaged and approximately 75 per cent of Gaza’s
population — 1.7 million people — internally displaced (United Nations Office for the Coordination
of Humanitarian Affairs (OCHA), Hostilities in the Gaza Strip and Israel — reported impact,
Day 109 (24 Jan. 2024)). Among the victims, most are children and women. The situation in Gaza
remains horrendous, catastrophic and devastating. No ceasefire is in sight. According to
United Nations reports, the conditions of life in Gaza continue to deteriorate rapidly with catastrophic
levels of hunger, a serious shortage of potable water and other essential necessities, a collapsing
medical and health system, a looming outbreak of contagious diseases, etc. The gravity of the
humanitarian disaster in Gaza threatens the very existence of the people in Gaza and challenges the
most elementary principles of morality and humanity.
4. Over sixty years ago, when Ethiopia and Liberia instituted legal proceedings against South
Africa for breach of its obligations as the Mandatory Power in South West Africa, the Court rejected
the standing of those two applicants for lack of legal interest in the cases. This denial of justice gave
rise to strong indignation of the Member States of the United Nations against the Court, severely
tarnishing its reputation. The legal issue was further developed in the Barcelona Traction case, where
the Court recognized that in international law there are certain international obligations owed to the
international community as a whole; by the very nature of their importance all States have a legal
interest in their protection. They are obligations erga omnes. The Court, however, did not touch on
the question of standing in that Judgment (Barcelona Traction, Light and Power Company, Limited
(New Application: 1962) (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 32,
para. 33). While the law and practice are still evolving, for a protected group such as the Palestinian
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people, it is least controversial that the international community has a common interest in its
protection. In my view, this is the very type of case where the Court should recognize the legal
standing of a State party to the Genocide Convention to institute proceedings on the basis of
erga omnes partes to invoke the responsibility of another State party for the breach of its obligations
under the Genocide Convention.
5. In light of the foregoing considerations and for the reasons contained in the Order of the
Court, I agree that the provisional measures indicated in this Order are warranted under the
circumstances.
(Signed) XUE Hanqin.
* * *
DECLARATION OF JUDGE BHANDARI
Humanitarian situation in Gaza — Present request for the indication of provisional
measures — Court not deciding merits — Requirement for the existence of plausible rights —
Consideration of factual evidence on the record — Relevance of conduct for plausibility finding.
1. I agree with the Court’s reasoning supporting its Order. I make this declaration to add an
additional element to this reasoning.
2. First, by way of background, the attacks on civilians in Israel on 7 October 2023 were acts
of brutality that must be condemned in the strongest possible terms. It is estimated that 1,200 Israelis
lost their lives and 5,500 were wounded and maimed in those attacks.
3. To date, however, more than 25,000 civilians in Gaza have reportedly lost their lives as a
result of Israel’s military campaign in response to those attacks, many of them women and children.
Several thousands are reportedly still missing. Tens of thousands of others have reportedly been
injured. Dwellings, businesses and places of worship have been destroyed. It is also reported by
United Nations agencies that 26 hospitals and over 200 schools have been damaged. Approximately
85 per cent of Gaza’s population has been displaced as a result of the conflict. The situation in Gaza
has turned into a humanitarian catastrophe.
4. I note in this connection that, while the present request only concerns the Genocide
Convention, other bodies of international law also apply in an armed conflict such as this one,
including in particular international humanitarian law.
5. This is an Order granting provisional measures, in accordance with Article 41 (1) of the
Statute and the jurisprudence of the Court. According to this provision, “[t]he Court shall have the
power to indicate, if it considers that circumstances so require, any provisional measures which ought
to be taken to preserve the respective rights of either party”.
6. Needless to say, the case has not been fully argued at this point, nor does the Court have
before it anything even approaching a full factual record. For these reasons alone, it is clear that the
Court is not, and cannot be, deciding South Africa’s actual claims under the Convention on the
Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”), as articulated
in paragraph 110 of its Application instituting proceedings (the “Application”). Similarly, the Court
is not, at this stage, deciding whether to grant any of the relief South Africa requests in paragraph 111
of its Application.
7. All the Court is doing is rendering a decision on South Africa’s Request for the indication
of provisional measures (the “Request”), which is a discrete request to the Court. In making a
decision on the Request, different legal tests and thresholds apply. These are elementary points, but,
in the particular context of this case, they bear repeating. It is against this background that one must
read the Court’s Order.
8. As part of its decision on whether to grant provisional measures, the Court must, in weighing
the plausibility of the rights whose protection is claimed, consider such evidence as is before it at
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this stage, preliminary though it might be. In particular, it must, in this case, take into account the
widespread destruction in Gaza and loss of life that the population of Gaza has thus far endured.
Article II of the Genocide Convention provides that an intent “to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such” is a constitutive element of genocide as defined
under the Convention. Disputes with respect to the meaning of this requirement have, in the past,
been before this Court, and the Court’s decisions have shed light on the requirements of this
provision. According to the Court’s jurisprudence, “in order to infer the existence of dolus specialis
from a pattern of conduct, it is necessary and sufficient that this is the only inference that could
reasonably be drawn from the acts in question”1. However, the Court need not, at a provisional
measures stage, make a final determination on the existence of such intent. In its Order of 23 January
2020 indicating provisional measures in the case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), the Court stated that,
“[i]n view of the function of provisional measures, which is to protect the respective
rights of either party pending its final decision, the Court does not consider that the
exceptional gravity of the allegations is a decisive factor warranting, as argued by
Myanmar, the determination, at the present stage of the proceedings, of the existence of
a genocidal intent”.
It added that “all the facts and circumstances mentioned are sufficient to conclude that the rights
claimed by The Gambia and for which it is seeking protection . . . are plausible”2.
9. Again, the Court is not at this point deciding whether, in fact, such intent existed or exists.
All it is deciding is whether rights under the Genocide Convention are plausible. Here, the
widespread nature of the military campaign in Gaza, as well as the loss of life, injury, destruction
and humanitarian needs following from it — much of which is a matter of public record and has been
ongoing since October 2023 — are by themselves capable of supporting a plausibility finding with
respect to rights under Article II.
10. Taken together and, bearing in mind the lower standards that apply in respect of provisional
measures as opposed to the merits, the evidence on the record at this stage in the proceedings is such
that, in the circumstances of this case, the Court was justified in granting provisional measures in the terms it did.
11. Going further, though, all participants in the conflict must ensure that all fighting and
hostilities come to an immediate halt and that remaining hostages captured on 7 October 2023 are
unconditionally released forthwith.
(Signed) Dalveer BHANDARI.
___________
1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Judgment, I.C.J. Reports 2015 (I), p. 67, para. 148.
2 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. 23, para. 56.
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