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.
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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
