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DUKE.
What, is Antonio here?ANTONIO.
Ready, so please your Grace.DUKE.
I am sorry for thee, thou art come to answer; A stony adversary, an inhuman wretch, Uncapable of pity, void and empty From any dram of mercy.ANTONIO.
I have heard; Your Grace hath ta’en great pains to qualify His rigorous course; but since he stands obdurate, And that no lawful means can carry me Out of his envy’s reach, I do oppose My patience to his fury, and am arm’d To suffer with a quietness of spirit The very tyranny and rage of his.DUKE.
Go one and call the Jew into the court.SALARINO.
He is ready at the door. He comes, my lord.(W. Shakespeare, The Merchant of Venice (1600) ACT IV; SCENE I. Venice. A court of justice.)
It is always horrifying to think about the possibility, however unlikely, that ancient tropes are being reprised in new clothing. It is not the imitation of the trope, but the lingering odor of its cultural expectations that sometimes provides the necessary aroma to set the stage for a version of its retelling. (Consider for example, Choosing Sides, Socialist Internationalism, and the Ideological Signification of China's Jewish Problem in the International Arena: "Wang Yi Holds Talks with the Delegation of Arab-Islamic Foreign Ministers").
Unbidden, then, the wispy recollection lurks, disturbing the approach to a most worthy proceeding the preliminaries of which we are all invited to witness. That invitation constitutes the bulk of a recent press release of the International Court of Justice: (Press Release; Unofficial [No. 2024/1] 3 January 2024).
Proceedings instituted by South Africa against Israel on 29 December 2023Court of Justice will hold public hearings at the Peace Palace in The Hague, the seat of the Court, in the proceedings instituted by South Africa against Israel on 29 December 2023.
Request for the indication of provisional measures
Public hearings to be held on Thursday 11 and Friday 12 January 2024
THE HAGUE, 3 January 2024. On Thursday 11 and Friday 12 January 2024, the InternationalIt is recalled that South Africa filed an Application instituting proceedings against Israel
concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) in relation to Palestinians in the Gaza Strip (see press release 2023/77).The hearings will be devoted to the Request for the indication of provisional measures
contained in South Africa’s Application. In its Request, South Africa asks the Court to indicate provisional measures in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide”.Schedule for the hearings
Thursday 11 January 2024 10 a.m.-12 noon.: Oral argument (South Africa)
Friday 12 January 2024 10 a.m.-12 noon.: Oral argument (Israel)
___________
Members of the diplomatic corps, the public and the media will find below practical
information regarding the organization of the hearings.
___________
Whatever the outcome, and however one comes to the proceedings and the characters that have been called upon to play their roles on the stage of the ICJ, this is an event that ought not to be missed, not just for the historically embedded narratives swirling around the interpretive shoals of the constitution of a the policed boundaries of human taboos but of the concoction of singular responsibility for a tragedy to which all may, in some way, be complicit.
But more horrifying than the reprising of old tropes, is the construction of new ones. In this case the elaboration of tropes around presumptions of collective psychologies of peoples. More specifically, the psychology of conversion tied to the notion that social collectives, like individuals can, under conditions of extreme abuse, themselves become the abuser--that is that a people can by suffering become the identical instrument for the suffering of another. Once that psychological presumption is embraced (based, in turn on the power of narrative to shape collective reality--a sort of semiotic psychology in which the individual is effectively sucked into the collective) the rest follows. Principal among "the rest" is the assumptions around which facts are harvested, arranged, and interpreted, in effect, to provide the proof of the presumption from which the exercise was started.
In this case might it be possible to suggest this?: a collective people just coming out of a tragic period of racial-ethno oppression has projected its own historical experience onto another people just coming out of a long period of violent racial/religious abuse as permanent "guests" of other communities (the thinking at the time) who are recharacterized in the image of the or as the ghostly reappearance of the long gone abusers of the accuser. And in this case what better villain /victim than one constructed out of collective tragedy. At the core is a narrative inversion--for to some extent one might be excused if one sees in this drama a greater one (and one deeply satisfying for some): the collective reconstruction of peoples who suffered great tragedy at the hands of other peoples (only one of whom was burdened with its responsibility in the case of one of the parties) now by a process of psychological necessary becomes the very thing responsible for its tragedy. And that accusation must be made by the victim of another sort of collective tragedy that might see its own historical tragedy as the benchmark experience projected widely onto the world. In the process the victim now becomes the sorter of racial hierarchies of worthiness and their separation but to the ends of punishing and re-arranging. The suggestion is deeply disturbing. But is the disturbing quality of the thought enough to banish it from conscious consideration? Ought it to be anyway?
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That this may be the real theater performance is both frightening and dispiriting. That it may be possible to entertain the thought that there are collectives that might plausibly expend a tremendous amount of capital to see these presumptions of collective psychology played out in the most stylish theaters of the day, is more disheartening still. That the presumptions are still credible suggests the rift between collective prejudice and anti-stereotype discourse.
At the same time, the issues raised are worthy of serious debate. And the context that serves as the predicate for this judicial drama even more so. But perhaps not this way. That does not matter now, however. The stage is set, the parties identified; they come on stage fully robed in their complexities, and the matter will go forward. It might be worth pondering whether one ought to fear that this time, there will be no conversion; there will be no taking of the wealth of the accused. There will be none of that without the spilling of a tremendous amount of additional flesh and blood.
General admission is free to the public. The "Practical Information and Admissions Procedure" Information included in the Press Release follows below along with the relevant portions of the writings of South Africa delivered to and filed with the court.
A. Practical information and admission procedures
There will be no parking on the Peace Palace grounds.
1. Members of the diplomatic corps
Owing to the limited number of seats available in the Great Hall of Justice, members of the
diplomatic corps who wish to attend the hearings are requested to kindly fill out an online registration
form by midnight (The Hague time) on Tuesday 9 January 2024. Seats in the Great Hall of Justice
will be allocated on the basis of availability. On presenting a confirmation of registration from the
Information Department and valid diplomatic ID at the main gate of the Peace Palace on the day(s)
of the hearings, diplomats will be given a badge providing access to the Great Hall of Justice.
2. Members of the public
A limited number of seats will be available in the public gallery for members of the public on
a first-come first-served basis. There will be no advance registration procedure, and admission
requests submitted beforehand will not be considered. Members of the public wishing to attend the
hearings are requested to present themselves at the main gate of the Peace Palace 40 minutes before
the start of the public session(s). They will be given a badge providing access to the public gallery
upon presentation of valid ID. The security officers at the gate will notify those concerned once all
seats available for members of the public have been filled. Admission to the public gallery will close
20 minutes before the start of the hearings.
3. Media representatives
Media representatives who wish to attend the hearings are requested to kindly fill out an online
accreditation form by midnight (The Hague time) on Tuesday 9 January 2024. Requests submitted
after this deadline will not be considered. The Court’s Press Room can accommodate 30 people only.
Accreditation requests will be considered on a first-come first-served basis.
B. Further practical information for the media
1. Entry to the Peace Palace
Only duly accredited individuals with valid identification will be permitted to enter the Peace
Palace grounds. Accredited media representatives must bring with them their personal ID and press
card. They are asked to arrive at the Peace Palace gates no later than 30 minutes before the start of
the hearings. The Press Room will be open one and a half hours before the start of the hearings and
will close one hour after they conclude.
2. Access to the courtroom
Photographers and camera crews will only be permitted to enter the courtroom for a few
minutes before the opening of the oral argument of each Party. They will be accompanied by a
member of the Information Department. Other media representatives will not have access to the courtroom.
3. Press Room
The hearings will be transmitted live on a large screen in the two official languages of the
Court, English and French, in a press room equipped with shared internet access (Wi-Fi and
Ethernet). TV crews can connect to the Court’s PAL (HD and SD) and NTSC (SD) audiovisual
system, and radio reporters to the audio system.
4. Multimedia
The hearings will be streamed live and on demand (VOD) in the two official languages of the
Court, English and French, on the Court’s website and on UN Web TV. High-resolution video clips
and still photos produced by the Registry during the hearings will be available free of charge and
free of copyright for editorial, non-commercial use, on the Court’s website (to download, click on
Multimedia) and X (formerly Twitter) feed (@CIJ_ICJ).
___________
Note: The Court’s press releases are prepared by its Registry for information purposes only
and do not constitute official documents.
___________
The International Court of Justice (ICJ) is the principal judicial organ of the United Nations.
It was established by the United Nations Charter in June 1945 and began its activities in April 1946. The Court is composed of 15 judges elected for a nine-year term by the General Assembly and the Security Council of the United Nations. The seat of the Court is at the Peace Palace in The Hague (Netherlands). The Court has a twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by States; and, second, to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and agencies of the system.
___________
Information Department:
Ms Monique Legerman, First Secretary of the Court, Head of Department: +31 (0)70 302 2336
Ms Joanne Moore, Information Officer: +31 (0)70 302 2337
Mr Avo Sevag Garabet, Associate Information Officer: +31 (0)70 302 2394
Email: info@icj-cij.org
* * *
VI. REQUEST FOR PROVISIONAL MEASURES
112. In accordance with Article 41 of the Statute of the Court, and Articles 73, 74 and 75 of the
Rules of Court, South Africa requests that the Court indicate provisional measures. In light of the nature
of the rights in issue, as well as the ongoing, extreme and irreparable harm being suffered by Palestinians
in Gaza, South Africa requests that the Court address this request as a matter of extreme urgency.
113. This Application describes an exceptionally brutal military campaign by Israel in Gaza, which
is extensive and ongoing, and which Israel intends to intensify further still.520
114. Israel has engaged in and failed to prevent or to punish acts and measures which are genocidal,
constituting flagrant violations of Israel’s obligations under Articles I, III (a), III (b), III (c), III (d), III
(e), IV, V and VI of the Genocide Convention. As further evidenced in the materials set out in the
application, the acts of genocide in question in breach of Articles II (a), II (b), II (c) and II (d), in
particular, that collectively target the Palestinians in Gaza include, inter alia:
(1) killing Palestinians in Gaza, including a large proportion of women and children —
estimated to account for around 70 per cent of the more than 21,110 fatalities — some of whom appear to have been summarily executed;520 Statement by Israeli Prime Minister to Likud Party, 25 December 2023: Jeremy Sharon, "After rare visit to Gaza, Netanyahu says war ‘not close to being over’", The Times of Israel (25 December 2023), https://www.timesofisrael.com/liveblog_entry/after-gaza-visit-netanyahu-says-war-not-close-to-being-over/.(2) causing serious mental and bodily harm to Palestinians in Gaza, including through
maiming, psychological trauma, and inhuman and degrading treatment;
(3) causing the forced evacuation and displacement of around 85 per cent of
Palestinians in Gaza — including children, the elderly and infirm, and the sick and wounded
— as well as causing the large scale destruction of Palestinian homes, villages, refugee camps, towns and entire areas in Gaza, precluding the return of a significant proportion of the
Palestinian people to their homes;
(4) causing widespread hunger, dehydration and starvation to besieged Palestinians in
Gaza, through the impeding of sufficient humanitarian assistance, the cutting off of sufficient
water, food, fuel and electricity, and the destruction of bakeries, mills, agricultural lands and
other methods of production and sustenance;
(5) failing to provide and restricting the provision of adequate shelter, clothes, hygiene
or sanitation to Palestinians in Gaza, including the 1.9 million internally displaced people,
compelled by Israel’s actions to live in dangerous situations of squalor, alongside the routine
targeting and destruction of places of shelter and the killing and wounding of those sheltering,
including women, children, the disabled and the elderly;
(6) failing to provide for or to ensure the provision for the medical needs of Palestinians
in Gaza, including those medical needs created by other genocidal acts causing serious bodily
harm, including through directly attacking Palestinian hospitals, ambulances and other
healthcare facilities in Gaza, killing Palestinian doctors, medics and nurses, including the most qualified medics in Gaza, and destroying and disabling Gaza’s medical system; and
(7) destroying Palestinian life in Gaza, through the destruction of Gaza’s universities,
schools, courts, public buildings, public records, stores, libraries, churches, mosques, roads,
infrastructure, utilities and other facilities necessary to the sustained life of Palestinians in Gaza as a group, alongside the killing of entire family groups — erasing entire oral histories in Gaza — and the killing of prominent and distinguished members of society.
(8) Imposing measures intended to prevent Palestinian births in Gaza, through the
reproductive violence inflicted on Palestinian women, newborn babies, infants, and children.
115. Provisional measures are necessary in this case to protect against further, severe and irreparable
harm to the rights of the Palestinian people under the Genocide Convention, which continue to be
violated with impunity. South Africa requests that the Court indicate provisional measures to protect
and preserve those rights as well as its own rights under the Convention, and to prevent any aggravation
or extension of the dispute, pending the determination of the merits of the issues raised by the
Application.
116. South Africa notes that there are other related matters that do not directly engage obligations
under the Genocide Convention and are therefore not properly within the Court’s jurisdiction in this
case, including the urgent return of Israeli and other hostages. South Africa considers that the
provisional measures requested are nevertheless consistent with and capable of assisting towards the
progression and resolution of those matters.
A. Compelling Circumstances Require the Indication of Provisional Measures
117. As detailed above, contrary to Article I of the Convention, Israel has perpetrated and is
perpetrating genocidal acts identified in Article II. 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
compelling circumstances are set out in detail in the Application, and include that:
— Nowhere is safe in Gaza.
— Israel is dropping ‘dumb’ bombs and bombs weighing up to 2,000 lbs (900 kgs) on one
of the most densely populated places in the world.
— Palestinians in Gaza are being killed at a rate of approximately one person every six
minutes.
— At least 21,110 Palestinians have been killed to date in Gaza, with a further estimated
7,780 are missing, presumed dead under the rubble.
— An estimated 7,729 Palestinian children had already been killed by 12 December 2023;
at least 4,700 other children and women are reported missing, presumed dead under the rubble,
leading UNICEF to describe Israel’s military attacks as a ‘war against children’.
— Hundreds of Palestinians in Gaza are being wounded daily, many with life-changing and
life-threatening injuries.
— Besieged and bombed hospitals are no longer able to treat the sick and wounded; only 13
of Gaza’s 36 hospitals are still functioning.
— 1.9 million Palestinians in Gaza — approximately 85 per cent of the population — have
been forcibly displaced from their homes.
— Palestinians in Gaza are being corralled into ever smaller areas of Gaza, without
sufficient shelter, where they continue to be bombed by Israel.
— Israel continues to prevent sufficient humanitarian assistance to Palestinians in Gaza,
including preventing sufficient access to food, water, shelter, medicine and medical assistance.
— Vulnerable Palestinians, including the sick and infirm, children and expectant mothers
are at particular risk.
— Infectious diseases are spreading rapidly.
— International experts are warning of imminent mass starvation.
118. Israel has also 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.
119. Israel denies wrongdoing in relation to its military activities in Gaza and is resisting all calls by
South Africa and by the broader international community to prevent and cease the commission of
genocide. Instead of ceasing violations of the Genocide Convention, preventing such violations and
punishing their perpetrators, Israel has continued, escalated and threatened further to escalate its
military campaign. It is also destroying evidence of its wrongdoing: the mass demolition and clearance
of vast areas of Gaza, and the prevention of the return of internally displaced Palestinians to their homes,
raises serious concerns about the destruction of evidence and its effect on future investigation into
crimes, including the gravest crimes under international law. Israel’s killing of large numbers of
Palestinian journalists and media workers in Gaza — at least 82 to date, often alongside multiple
members of their families — coupled with its attacks on Gaza’s telecommunications network, are
hampering scrutiny of Israel’s actions against Palestinians in Gaza.521 So too is Israel’s continuing
refusal to allow access to Gaza by fact-finders and foreign journalists, other than a limited number of
journalists permitted to embed themselves with the Israeli army subject to restrictions and censorship
of their reports. Palestinian NGOs and human rights defenders, themselves at risk of attack by the Israeli
army, are not able to document in real time the unremitting acts of genocide and other violations of
international law being committed by Israel.
B. The Prima Facie Jurisdiction of the Court
120. The Court is empowered to indicate provisional measures “if the provisions relied on by the
Applicant appear prima facie to afford a basis on which its jurisdiction could be founded, but need not
satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case”.522
121. As set out above, the jurisdiction of the Court is founded on Article 36, para 1, of the Statute of
the Court and Article IX of the Genocide Convention. 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.”
122. South Africa and Israel are both United Nations Member States and State parties to the
Genocide Convention. Both have accepted the jurisdiction of the Court under Article IX of the Genocide
Convention without any reservation. They are consequently bound by it.
123. In order for this Court to determine whether it has prima facie jurisdiction in order to indicate
provisional measures, the matters complained of must themselves be prima facie “capable of falling
within the provisions of [the Convention]”, such that “the dispute is one which the Court has jurisdiction
ratione materiae to entertain”.523 The case law of the Court establishes that a dispute is “a disagreement
on a point of law or fact, a conflict of legal views or of interests” between parties.524 In order for a
dispute to exist, “[i]t must be shown that the claim of one party is positively opposed by the other”.525
The two sides must “hold clearly opposite views concerning the question of the performance or non-
performance of certain’ international obligations”.526 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
521 Amnesty, Israel/OPT: Civilians in Gaza at unprecedented risk as Israel imposes communication black-out during bombardment and expanding ground attacks (27 October 2023), https://www.amnesty.org/en/latest/news/2023/10/israel-opt-civilians-in-gaza-at-unprecedented-risk-as-israel-imposes-communication-black-out-during-bombardment-and-expanding-ground-attacks/.procedure”.527 For the purposes of deciding whether there was a dispute between the Parties at the time
522 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 9, para. 16; and 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 2020, p. 10-11, para. 24 (hereafter ‘Ukraine v. Russian Federation, Provisional Measures, Order of 16 March 2022’).
523 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 1, para. 20, citing Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1159, para. 47.
524 Ukraine v. Russian Federation, Provisional Measures, Order of 16 March 2022, p. 11, para. 28, quoting Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11.
525 Ibid, quoting South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328.
526 Ibid, p.11-12, para 28, quoting 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.
of the filing of the Application, the Court “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, their intended or actual addressee,
and their content”.528
124. For the purposes of the indication of provisional measures, the Court is not required to ascertain
whether any violation of Israel’s obligations under the Genocide Convention has occurred.529
Importantly, as previously held by the Court, “[s]uch a finding, which would notably depend on the
assessment of the existence of an intent to destroy, in whole or in part, the group … [of Palestinians] as
such, could be made by the Court only at the stage of the examination of the merits of the present
case”.530 Instead, “[w]hat the Court is required to do at the stage of making an order on provisional
measures is to establish whether the acts complained of… are capable of falling within the provisions
of the Genocide Convention”.531 The Court does not have to determine that all of the acts complained
of are capable of falling within the provisions of the Convention. It suffices that “at least some of the
acts alleged … are capable of falling within the provisions of the Convention”.532
125. At least some of the acts alleged by South Africa are plainly “capable of falling within the
provisions of the Convention”. They have been considered to be capable of falling within the provisions
of the Convention by numerous States and United Nations experts and bodies, including the Committee
on the Elimination of Racial Discrimination.533 Notably, they are plainly capable of falling within the
provisions of Article II (a), II (b), II (c) and II (d) of the Convention, constituting as they do: (1) the
killing of Palestinians in Gaza, (2) their serious bodily or mental harm, (3) the deliberate infliction of
conditions of life calculated to bring about the destruction of Palestinians in Gaza, and (4) the imposition
of measures intended to prevent births within the group. In relation to II (c), the Court has previously
explained this as including “methods of physical destruction, other than killing, whereby the perpetrator
ultimately seeks the death of the members of the group”.534 Citing jurisprudence from international
tribunals, the Court held that “such methods of destruction include notably deprivation of food, medical
care, shelter or clothing, as well as lack of hygiene, systematic expulsion from homes, or exhaustion as
a result of excessive work or physical exertion.”535 Those international tribunals have also identified the
following methods of destruction: “subjecting the group to a subsistence diet; failing to provide
adequate medical care… and generally creating circumstances that would lead to a slow death such as
the lack of proper food, water, shelter, clothing, sanitation”.536 This Court has also determined that
forced mass displacement is capable of being considered a genocidal act.537 The materials relied on in
527 Ibid, p.13-14, para. 35, citing The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 12, para. 26.this Application constitute clear evidence of the creation by Israel of circumstances plainly capable of
528 Ibid, pp. 220-221, para. 35, citing The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 12, para. 26.
529 Ibid, p. 15, para. 43.
530 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 14, para. 30.
531 Ibid, p. 14, para. 30 (emphasis added); see also Ukraine v. Russian Federation, Provisional Measures, Order of 16 March 2022, p. 15, para. 43.
532 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 14, para. 30 (emphasis added).
533 See Section III. Facts, E. Recognition of Israel’s genocidal intent against Palestinians in Gaza, supra.
534 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015, p. 70, para. 161.
535 Ibid, citing ICTY, Trial Chamber II, Prosecutor v. Brđanin, Case No. IT-99-36-T, Judgment (1 September 2004), para.
691 and Prosecutor v. Stakić, Case No. IT-97-24-T, Judgment (31 July 2003), paras. 517-518.
536 ICTY, Appeals Chamber, Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgment (8 April 2015), p. 327, para. 740.
537 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 (‘Bosnia v. Serbia, Judgment’).
constituting those methods of destruction.
126. The evidence regarding the direct and public incitement to commit genocide by Israeli State
officials, politicians and others — as set out above — and the failure by Israel to punish those
responsible, are also plainly capable of falling within the provisions of Article III and IV of the
Convention.
127. “The above mentioned elements” serve to “establish prima facie the existence of a dispute
between the Parties relating to the interpretation, application or fulfilment of the Genocide
Convention”.538 The dispute concerns Israel’s breaches of its obligations under the Genocide
Convention, including its failure to prevent and its perpetration of genocide, and South Africa’s own
obligations under the Genocide Convention to prevent genocide, including by taking actions to
influence effectively the actions of persons likely to commit genocide.539 The Court has described the
nature of that dispute as follows: “[A] state’s obligations to prevent, and corresponding duty to act, arise
at the instant that the State learns of, or should normally have learned of, the existence of a serious risk
that genocide will be committed. From that moment onwards, if the State has available to it means
likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of
harbouring specific intent (dolus specialis), it is under a duty to make use of these means as the
circumstances permit”.540
128. The Court plainly has prima facie jurisdiction to indicate provisional measures in this case as a
consequence.
C. The Rights the Protection of Which Is Sought, their Plausible Character and the Link
between such Rights and the Measures Requested
129. The Court has “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”, pursuant
to Article 41 of the Statute of the Court. The power of the Court to indicate provisional measures “has
as its object the preservation of the respective rights claimed by the parties in a case, pending [the
Court’s] decision on the merits thereof”.541 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”.542 At this
stage of the proceedings, however, the Court is not called upon to determine definitively whether the
rights which South Africa seeks to protect exist; it need only decide whether it is satisfied that the rights
asserted by South Africa on the merits, and for which it is seeking protection, are “at least plausible”543
i.e. “grounded in a possible interpretation” of the Convention.544 Those rights are clearly plausible,
having regard inter alia to the statements of United Nations experts and bodies asserting that there is at
538 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 14, para. 31.
539 Bosnia v. Serbia, Judgment, p. 221, para 430.
540 Ibid, p. 43 para 431.
541 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 18, para. 43; and Ukraine v. Russian Federation, Provisional Measures, Order of 16 March 2022, p. 223, para. 50.
542 Ibid.
543 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 18, para. 43; and Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018, p. 422, para. 43 (hereafter ‘Qatar v. United Arab Emirates, Provisional Measures, Order of 23 July 2018.
544 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 152, para. 60 (emphasis added).
the very least a real risk of genocide — which risk gives rise to the obligation to prevent genocide,
pursuant to Article I of the Convention, which is binding on both Israel and South Africa. It also gives
rise to obligations binding on Israel not to commit genocide, and to punish those who directly and
publicly incite to genocide.545
130. For the Court to indicate one or more provisional measures, there must also be a link between
the rights the protection of which is sought and the provisional measure being requested.546 Such a link
clearly exists between the rights claimed by South Africa and the provisional measures requested, which
are directly linked to the rights which form the subject-matter of the dispute.
131. In relation to the nature of the rights asserted by South Africa under the Genocide Convention,
as recently recalled by the Court:
“In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions.”547
132. Having regard to their “shared values”, all the States parties to the Genocide Convention thus
have “a common interest to ensure that acts of genocide are prevented and that, if they occur, their
authors do not enjoy impunity”.548 As determined by the Court, “that common interest implies that the
obligations in question are owed by any State party to all the other States parties to the Convention”.549
As a consequence, the relevant provisions of the Genocide Convention generate “obligations [which]
may be defined as ‘obligations erga omnes partes’ in the sense that each State party has an interest in
compliance with them in any given case”.550 Consequently, as recently confirmed by the Court:
“It follows that any State party to the Genocide Convention, and not only a specially affected
State, may invoke the responsibility of another State party with a view to ascertaining the
alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an
end.”551
133. South Africa seeks hereby, pursuant to that common interest urgently to protect the rights of
Palestinians in Gaza, as members of a protected group under the Convention, including their right to
exist as a group and their right to be protected from acts of genocide and the risk thereof, from
conspiracy to commit genocide, from direct and public incitement to commit genocide, from attempted
genocide, and from complicity in genocide. South Africa also seeks to protect the erga omnes partes
rights it has under the Genocide Convention as well as the erga omnes obligations it has to prevent
genocide, which mirror the erga omnes obligations of the Convention with which it is entitled to seek
545 Bosnia v. Serbia, Judgment, pp. 113-114, paras. 165-169.
546 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 18, para. 44, citing Qatar v. United Arab Emirates, Provisional Measures, Order of 23 July 2018, p. 422, para. 44.
547 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 17, para. 41, quoting its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, I.C.J. Reports 1951, p. 23 (hereafter ‘Advisory Opinion of 28 May 1951’).
548 Ibid.
549 Ibid.
550 Ibid, applying mutatis mutandis Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 449, para. 68.
551 Ibid.
compliance by Israel, including Israel’s obligations not to commit genocide, to prevent genocide, and
to punish genocide, including acts of genocide, conspiracy to commit genocide, direct and public
incitement to genocide, attempted genocide and complicity in genocide against Palestinians. The Court
has previously recognised “the universal character both of the condemnation of genocide and of the co-
operation required ‘in order to liberate mankind from such an odious scourge’”.552
134. For the purposes of indicating provisional measures, the Court does not need to establish
definitively that Palestinians are at risk of genocide, that they are being subjected to genocidal acts, or
that Israel is otherwise breaching its obligations under the Genocide Convention. Rather, it is sufficient
that the obligation of South Africa to act to prevent genocide, or the right of South Africa to seek
compliance by Israel with its obligations under the Convention not to commit genocide, and to prevent
and punish genocide and related prohibited acts under the Convention, be “plausible”.553 Equally, there
is no requirement, before granting provisional measures, for the Court to ascertain whether the existence
of a genocidal intent is the only inference to be drawn from the material before the Court, as this
requirement would amount to the Court making a determination on the merits. Notably, the fact that the
genocidal acts are occurring — and not being prevented or punished — in the course of an armed
conflict or in asserted response to an attack by an armed group, has no bearing on whether the rights
asserted by South Africa under the Genocide Convention are “at least plausible”.554 The absence of a
prior determination of genocide by a court or fact-finding tribunal is similarly no bar to the adjudication
by this Court of an application under the Genocide Convention, much less a request for the indication
of provisional measures.555
135. The facts and circumstances described in this Application and request for provisional measures
establish that the acts complained of — which Israel has committed and is committing — are capable
of being characterised at the very least as plausibly “genocidal”. The requisite dolus specialis can be
deduced not only from Israel’s conduct against Palestinians in Gaza, but also from clear, repeated
dehumanising statements by Israeli governmental and military officials towards them. Indeed, they have
been so characterised by numerous heads of State and other State officials and representatives, as well
as by a large number of United Nations experts and various expert human rights organisations and
institutions who have repeatedly warned that Israel’s actions amount to or risk the genocide of the
Palestinian people.556 Consequently, the rights relied on by South Africa in its request for the indication
of provisional measures are at the very least “plausible. Indeed, their protection coincides with the very
object and purposes of the Genocide Convention.
D. The Risk of Irreparable Prejudice and Urgency
136. The Court “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
552 Advisory Opinion of 28 May 1951, p. 23.rights may entail irreparable consequences”.557 In particular, the Court has the power to indicate
553 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 18, para. 43.
554 Ibid.
555 See Bosnia v. Serbia, Judgment, p. 120, para. 182: “State responsibility can arise under the Convention for genocide and complicity, without an individual being convicted of the crime or an associated one”. As explained by the Court: “Any other interpretation could entail that there would be no legal recourse available under the Convention in some readily conceivable circumstances: genocide has allegedly been committed within a State by its leaders but they have not been brought to trial because, for instance, they are still very much in control of the powers of the State including the police, prosecution services and the courts and there is no international penal tribunal able to exercise jurisdiction over the alleged crimes”: ibid, pp. 119-
120, para. 182.
556 See section III. Facts, E. Recognition of Israel’s genocidal intent against Palestinians in Gaza, supra.
provisional measures “if there is urgency, in the sense that there is a real and imminent risk that
irreparable prejudice will be caused before the Court gives its final decision”.558 As the Court recently
confirmed, “[t]he 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”.559
137. For the purposes of its decision on a request for the indication of provisional measures in a case
involving allegations of violations of the Genocide Convention, “[t]he Court is not called upon . . . 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”,560 as “found to be plausible”.561 As held by the Court, this does not require it to “make
definitive findings of fact or of imputability”, and “the right of each Party to . . . submit arguments in
respect of the merits, must remain unaffected by the Court’s decision” on the request for the indication
of provisional measures.562
138. In assessing whether the condition of urgency is satisfied in cases involving allegations of
genocide in the course of an ongoing conflict, the Court typically has regard to whether the population
at risk is particularly vulnerable, and the fragility of the overall situation, including the likelihood and
the risk of the re-occurrence of harm. The Court considers a civilian population to be “extremely
vulnerable” where the military operations have “resulted in numerous civilian deaths and injuries” and
have “caused significant material damages, including the destruction of buildings and infrastructure”,
and where “[a]ttacks are ongoing and are creating increasingly difficult living conditions for the civilian
population”.563 In indicating provisional measures, the Court has considered the lack of access by many
individuals to “the most basic food-stuffs, potable water, electricity, essential medicines or heating”,564
and attempts by a “very large number of people . . . to flee from the most affected cities under extremely
insecure conditions”.565 The Court has also considered the following factors, raised by a United Nations
General Assembly Resolution, to be materially relevant in assessing whether the condition of urgency
is satisfied in cases involving allegations of genocide: “attacks on civilian facilities such as residences,
schools and hospitals, and of civilian casualties, including women, older persons, persons with
disabilities, and children”; the “scale” of military operations, including their comparison with other
conflicts, the “deteriorating humanitarian situation” in a territory, and the “increasing number of
internally displaced persons and refugees in need of humanitarian assistance”.566 Similarly, the Court
has had regard to findings of a fact-finding mission, considering factors such as “the systematic
stripping of human rights”, “dehumanizing narratives and rhetoric”, “methodical planning, “mass
557 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 24, para. 64; and Ukraine v. Russian Federation, Provisional Measures, Order of 16 March 2022, p. 226, para. 65, both citing Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America),killing”, “mass displacement”, “mass fear”, “overwhelming levels of brutality, combined with the
Provisional Measures, Order of 3 October 2018, I.C.J. Reports 2018, p. 645, para. 77.
558 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 24, para. 65; see also Ukraine v. Russian Federation, Provisional Measures, Order of 16 March 2022, p. 226, para. 66.
559 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 24, para. 65; and Ukraine v. Russian Federation, Provisional Measures, Order of 16 March 2022, pp. 226-227, para. 66.
560 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, pp. 24-25, para. 66.
561 Ukraine v. Russian Federation, Provisional Measures, Order of 16 March 2022, p. 227, para. 67.
562 Bosnia v. Serbia, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 22, para. 44.
563 Ukraine v. Russian Federation, Provisional Measures, Order of 16 March 2022, p. 228, para. 75.
564 Ibid.
565 Ibid; see also The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 27, para. 71; and Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, I.C.J. Reports 2011, p. 550, para. 53.
566 Ukraine v. Russian Federation, Provisional Measures, Order of 16 March 2022, pp. 228-229, para. 76.
physical destruction of the home of the targeted population, in every sense and on every level”.567
139. Notably, as the Court has underscored, States parties to the Genocide Convention have
“expressly confirmed their willingness to consider genocide as a crime under international law which
they must prevent and punish independently of the context ‘of peace’ or ‘of war’ in which it takes
place”.568 Consequently, a State remains bound by the obligations incumbent upon it as a State party to
the Genocide Convention, regardless of “the fact that there may be an ongoing . . . conflict between
armed groups and the . . . military”.569 Such a context “does not stand in the way of the Court’s
assessment of the existence of a real and imminent risk of irreparable prejudice to the rights protected
under the Convention”.570
140. Where past violations have occurred, the Court has found provisional measures appropriate
when it is “not inconceivable” that they might occur again.571 The Court has also ordered provisional
measures in circumstances that were “unstable and could rapidly change”, with “ongoing tension and
the absence of an overall settlement to the conflict” that meant the affected group remained
vulnerable.572 Consequently, any ceasefire to be agreed or any other acts by Israel that could be
perceived as capable of ameliorating the circumstances for Palestinians in the short term would not have
a dispositive effect and would impact neither on the merit nor the urgency of South Africa’s arguments.
141. There is a clear risk of irreparable prejudice to the rights of the Palestinians and to South
Africa’s own rights under the Genocide Convention. The utmost urgency of the situation is self-evident:
Palestinians have suffered and are suffering irreparable harm from genocidal acts by Israel in violation
of Article II of the Genocide Convention, and from Israel’s other violations of the Convention, including
its failure to prevent or punish direct and public incitement to genocide. Should these violations of the
Genocide Convention go unchecked, there is not only a risk but a certainty of further significant and
irreparable loss of life and property, serious injury and an ever-deepening humanitarian crisis. The
opportunity to collect and preserve evidence for the merits stage of the proceedings would also be
seriously undermined, if not lost entirely.
142. As of the date of this application, an estimated 21,110 Palestinians have been killed in Gaza,
including at least 7,729 children. 55,243 Palestinians have been injured, including at least 8,663
children, of whom over 1,000 are amputees, disabled for life. Approximately 70 per cent of those killed
are said to be women and children. One Palestinian child in Gaza has been killed approximately every
15 minutes since Israel commenced military action in Gaza on 7 October 2023. Thousands more are
missing under the rubble. 61 hospitals and health care facilities in Gaza have been damaged or
destroyed; many have been placed under siege or have been subjected to forced evacuation, and only
13 hospitals are still partially functional, weighed under by mass overcrowding. 311 health workers
have been killed, many while working, meaning that many of the wounded, including seriously injured
children, cannot access healthcare. An estimated 5,500 women are having to give birth in unsafe
567 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 22, para. 55.
568 Ibid, pp. 27-28, para. 74, citing Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996, p. 615, para. 31.
569 Ibid, p. 27, para. 74. The conflict raised as being in issue in that case was an internal armed conflict.
570 Ibid, p. 28, para. 74.
571 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016, I.C.J. Reports 2016, p. 1169, para. 89.
572 See Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008, p. 396, para. 143.
conditions every month. Babies are dying from preventable causes: in addition to disease and
malnutrition, premature babies have died due to lack of fuel to supply hospital generators; others have
been found decomposing in their hospital cots, medical staff having been forced to evacuate. Over 60
per cent of homes in Gaza have been damaged or destroyed. Vast swathes of Gaza have been destroyed,
including entire villages, refugee camps, towns and cities that have been or are deliberately being
rendered uninhabitable. Israel has made a humanitarian response impossible with constant
bombardment, including of safe routes. 1.9 million people, nearly 85 per cent of the population, are
displaced, including elderly, wounded and disabled people, living in makeshift tents, lacking any or
adequate sanitation and water, in United Nations schools and with relatives. The entire population is
facing starvation: 93 per cent of the population in Gaza is facing crisis levels of hunger, with more than
one in four facing “catastrophic conditions” — with death imminent. Against that background, the
Israeli Prime Minister asserted on 25 December 2023: “We are not stopping, we are continuing to fight
and we are deepening the fighting in the coming days, and this will be a long battle and it is not close
to being over”.573 The circumstances could not be more urgent.
143. The 2.3 million Palestinians in Gaza, including over a million children, are extremely
vulnerable. There is a grave threat to their existence. They are in urgent and severe need of the Court’s
protection. With each passing day that Israel’s military attacks continue, further significant loss of life
and property is being caused, and grave human rights violations are being committed. There can be no
doubt that the requirements for the indication of provisional measures are satisfied here.
E. Provisional Measures Requested
144. On the basis of the facts set forth above, South Africa, as a State party to the Convention on the
Prevention and Punishment of the Crime of Genocide, respectfully requests the Court, as a matter of
extreme urgency, pending the Court’s determination of this case on the merits, to indicate the following
provisional measures in relation to the Palestinian people as a group protected by the Genocide
Convention. These measures are directly linked to the rights that form the subject matter of South
Africa’s dispute with Israel:
(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 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 a573 Statement by Israeli Prime Minister to Likud Party, 25 December 2023: Jeremy Sharon, “After rare visit to Gaza, Netanyahu says war ‘not close to being over’”, The Times of Israel (25 December 2023), https://www.timesofisrael.com/liveblog_entry/after-gaza-visit-netanyahu-says-war-not-close-to-being-over/ (emphasis added).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;(5) The State of Israel shall, pursuant to point (4)(c) above, in relation to Palestinians, desist
(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.
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;(6) The State of Israel shall, in relation to Palestinians, ensure that its military, as well as any
(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
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.
145. The provisional measures requested are directly linked to the rights which form the subject-
matter of the dispute.574 In particular, the first six provisional measures have been requested to ensure
574 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 18, para. 44.
Israel's compliance with its obligations under the Genocide Convention not to engage in genocide, and
to prevent and to punish genocide, as wel as to uphold and reaffirm the rights and obligations of South
Africa to prevent genocide, and to protect Palestinians in Gaza from destruction. The last three
provisional measures requested are aimed at protecting the integrity of the proceedings before the Court
and South Africa's right to have its claim fairly adjudicated, including by ensuring the preservation of
evidence.
146. South Africa respectfully requests that this request for provisional measures be considered
urgently, at the Court's earliest possible opportunity, including the scheduling of a hearing in person or
remotely by video link in the week of 1 January 2024.
147. South Africa reserves its right to request additional provisional measures to prevent irreparable
harm to the rights at issue in this case, and/or to prevent further aggravation of the dispute between the
Parties, should they become necessary, during the course of these proceedings.
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