South Africa institutes proceedings in ICJ against Israel and requests for provisional measures to immediately suspend military operations in Gaza

By Staff Writer 

Last December (29) South Africa filed an application instituting proceedings against Israel before the International Court of Justice (ICJ), the principal judicial organ of the United Nations, 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.

The application is filed through South Africa’s Agent, Vusimuzi Philemon Mdonsela, its Ambassador in the Netherlands. 

According to the Application, “acts and omissions by Israel . . . are genocidal in character, as

they are committed with the requisite specific intent . . . to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group” and that “the conduct of Israel — through its State organs, State agents, and other persons and entities acting on its instructions or under its direction, control or influence — in relation to Palestinians in Gaza, is in violation of its obligations under the Genocide Convention”.

The Applicant further states that “Israel, since 7 October 2023 in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide” and that

“Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza”.

South Africa seeks to found the Court’s jurisdiction Articles 36 (1) and 40 of the Statute of the Court, Article 38 of the Rules of Court,  and on Article IX of the Genocide Convention, to which both South Africa and Israel are parties.

The Application also contains a Request for the indication of provisional measures, pursuant

to Article 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court. The Applicant requests 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”.

Pursuant to Article 74 of the Rules of Court, “[a] request for the indication of provisional measures shall have priority over all other cases”.

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 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.

Provisional Measures Requested

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, 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: 

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 a 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; (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.
5. The State of Israel shall, pursuant to point (4)(c) above, in relation to Palestinians, desist 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; (b) the deprivation of: (i) access to adequate food and water; (ii) access to humanitarian assistance, including access to adequate fuel, shelter, clothes, hygiene and sanitation; (iii) medical supplies and assistance; and (c) the destruction of Palestinian life in Gaza.
6. The State of Israel shall, in relation to Palestinians, ensure that its military, as well as any 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.

The court is requested to consider these provisional measures urgently and scheduling the hearing during the first week of January, remotely by video link. 

[Featured image: A bulldozer unloads the bodies of Palestinians killed by Israel in a mass grave in Rafah, Gaza Strip, Tuesday, Dec. 26, 2023. [AP Photo/Fatima Shbair]