On
29 December 2023 the Republic
of South Africa made an application to the International Court of
Justice
instituting
proceedings in
accordance with Articles 36 (1) and 40 of the Statute of the Court
and Article 38 of the Rules of
Court
against the State of Israel. The Application included a request that
the Court indicate provisional measures to protect the rights invoked
(as
found in the UN
1948 Convention on the Prevention and Punishment of the Crime of
Genocide)
from
imminent and irreparable loss.
The
Court sat for two days, 11 & 12 January 2024, and both South
Africa and Israel put their cases
concerning the rights and responsibilities found in the
Genocide
Convention
and, whether the actions of the Israeli Government since 7 October
2023 had caused acts of genocide against the Palestinian people in the Gaza Strip, had established a credible risk of genocide or that Israel's actions did not in fact involve genocide.
The
Court adjourned and deliberated for thirteen days, then delivered its
findings and decision.
It
couldn't be any clearer, the State of Israel is on notice and a full trial will take place.
International
Court of Justice (The Hague),
South Africa
v Israel, Summary
of the Order of 26 January 2024,
(Provisional Measures),
excerpt:
OPERATIVE
CLAUSE (PARA. 86)
The
full text of the operative clause of the Order reads as follows:
“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:
(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 [representing
the Republic
of Uganda];
Judge ad hoc Barak [representing
the State of Israel];
(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;
(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.”
*
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.
___________
In
South Africa v Israel the full Summary of the Order of 26 January 2024
can be read and downloaded at:
https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-sum-01-00-en.pdf.
The
full APPLICATION
OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF
GENOCIDE IN THE GAZA STRIP (SOUTH AFRICA v. ISRAEL) - 26 January 2024
Order can be read and
downloaded at:
https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf