On 26 January 2024, the International Court of Justice (“ICJ”) delivered its Order on the Request for the indication of provisional measures submitted by the Republic of South Africa by the Republic of South Africa (“South Africa”) in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).
The Court first determined that it has jurisdiction to hear the case. Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) provides the ICJ with jurisdiction over disputes on this Convention. The Court found that “as a matter of substance” there is such a dispute between the State of Israel (“Israel”) and South Africa as they “clearly hold opposite views” as to whether Israel’s acts and omissions in Gaza constitute violations of its obligations under the Genocide Convention. The Court determined this on the basis of both Parties’ public statements in multi/bilateral settings.
The ICJ then determined that it can order provisional measures and that these need not be identical to those requested by South Africa. The Court has the power to do so under Article 41(1) of the Statute of the Court to “preserve the respective rights of either party”. The Court determined that it can exercise this power, because:
On the basis of the above, the ICJ ordered the following provisional measures, Israel must:
The Court underscored that it did not ascertain whether Israel had violated its obligations under the Genocide Convention, which is a question for the later merits stage of this case. At this stage, the Court found only that “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”.
The Court emphasised that “all parties to the conflict in the Gaza Strip are bound by international humanitarian law” and expressed that 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”.
The Court’s Order was not unanimous. Judge Sebutinde voted against all provisional measures and wrote a dissenting opinion. Ad hoc Judge Barak, appointed by Israel in this case, voted against four out of the six provisional measures and issued a separate opinion. Each of Judges Xue, Bhandari and Nolte wrote a declaration while voting with the majority.