On Friday, January 26, 2024, the International Court of Justice (ICJ) published its order on provisional measures in Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). In particular, the Court upholded the standing of South Africa to institute proceedings, but rejected it contention regarding suspension of the military operations in the Gaza Strip. It ordered the following:
- In relation to Palestinians in Gaza ("the group"), Israel must take all necessary measures to prevent (1) the killing of members of the group; (2) bodily or mental harm to members of the group; (3) the deliberate infliction of conditions of life designed to partially or wholly eliminate the group; and (4) the imposition of measures designed to prevent births within the group.
- Israel must also sure that its military does not engage in any of the above acts.
- Israel must take measures to prevent and punish the direct and public incitement to commit genocide in relation to the group.
- Israel must take immediate measures to provide humanitarian assistance and basic needs to members of the group.
- Israel must take effective measures to prevent the destruction of evidence and ensure its preservation.
- Israel must report to the Court on its progress within one month of the ICJ's Order.
In her declaration, Judge Xue concurred with the Court's conclusion that South Africa has standing to institute proceedings against Israel and underscored the necessity of the provisional measures in the Court's order, in light of the humanitarian situation in Gaza.
Judge Sebutinde dissented on the basis that the dispute at issue is political and not legal in nature. She also argued that South Africa failed to demonstrate that the acts allegedly committed by Israel have the necessary genocidal intent so as to bring them within the scope of the Convention.
Judge Bhandari's declaration underscored the fact that because the case has not yet been fully argued and the Court is without a full factual record, the Court could only weigh the evidence such that it is at this stage of the proceedings. In his view, the largescale military campaign in Gaza and the death and destruction that has thus far taken place are capable on their own to support a plausibility finding with respect to the rights in Article II of the Convention.
Judge Nolte's declaration presents his opinion that certain political statements made by Israeli state officials (including members of the military) are enough to support South Africa's claim that there is a real and imminent risk of irreparable prejudice to the rights of Palestinians under the Convention.
Judge ad hoc Barak's separate opinion recalled that the measures ordered by the Court (which in his view are significantly more narrow than those requested by South Africa) recall Israel's obligations under the Genocide Convention. He also noted his disappointment that the Court was unable to order South Africa to take measures to protect the rights of Hamas hostages and to facilitate their release.