3. Conclusion as to prima facie jurisdiction
31. … the Court concludes that, prima facie, it has jurisdiction pursuant to Article IX of the Genocide Convention to entertain the case.
32. Given the above conclusion, the Court considers that it cannot accede to Israel’s request that the case be removed from the General List.
III. STANDING OF SOUTH AFRICA
33. The Court notes that the Respondent did not challenge the standing of the Applicant in the present proceedings. It recalls that, in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) where Article IX of the Genocide Convention was also invoked, it observed that all the States parties to the Convention have a common interest to ensure the prevention, suppression and punishment of genocide, by committing themselves to fulfilling the obligations contained in the Convention. Such a common interest implies that the obligations in question are owed by any State party to all the other States parties to the relevant convention; they are obligations erga omnes partes, in the sense that each State party has an interest in compliance with them in any given case. The common interest in compliance with the relevant obligations under the Genocide Convention entails that any State party, without distinction, is entitled to invoke the responsibility of another State party for an alleged breach of its obligations erga omnes partes. Accordingly, the Court found that any State party to the Genocide Convention may invoke the responsibility of another State party, including through the institution of proceedings before the Court, with a view to determining the alleged failure to comply with its obligations erga omnes partes under the Convention and to bringing that failure to an end (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment, I.C.J. Reports 2022 (II), pp. 516-517, paras. 107-108 and 112).
34. The Court concludes, prima facie, that South Africa has standing to submit to it the dispute with Israel concerning alleged violations of obligations under the Genocide Convention.
IV. THE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE LINK BETWEEN SUCH RIGHTS AND THE MEASURES REQUESTED
35. The power of the Court to indicate provisional measures under Article 41 of the Statute has as its object the preservation of the respective rights claimed by the parties in a case, pending its decision on the merits thereof. It follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by it to belong to either party. Therefore, the Court may exercise this power only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible (see, for example, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 223, para. 50).
36. At this stage of the proceedings, however, the Court is not called upon to determine definitively whether the rights which South Africa wishes to see protected exist. It need only decide whether the rights claimed by South Africa, and for which it is seeking protection, are plausible. Moreover, a link must exist between the rights whose protection is sought and the provisional measures being requested (Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 224, para. 51).
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37. South Africa argues that it seeks to protect the rights of the Palestinians in Gaza, as well as its own rights under the Genocide Convention. It refers to the rights of the Palestinians in the Gaza Strip to be protected from acts of genocide, attempted genocide, direct and public incitement to commit genocide, complicity in genocide and conspiracy to commit genocide. The Applicant argues that the Convention prohibits the destruction of a group or part thereof, and states that Palestinians in the Gaza Strip, because of their membership in a group, “are protected by the Convention, as is the group itself”. South Africa also argues that it seeks to protect its own right to safeguard compliance with the Genocide Convention. South Africa contends that the rights in question are “at least plausible”, since they are “grounded in a possible interpretation” of the Genocide Convention.
38. South Africa submits that the evidence before the Court “shows incontrovertibly a pattern of conduct and related intention that justifies a plausible claim of genocidal acts”. It alleges, in particular, the commission of the following acts with genocidal intent: killing, causing serious bodily and mental harm, inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, and imposing measures intended to prevent births within the group. According to South Africa, genocidal intent is evident from the way in which Israel’s military attack is being conducted, from the clear pattern of conduct of Israel in Gaza and from the statements made by Israeli officials in relation to the military operation in the Gaza Strip. The Applicant also contends that “[t]he intentional failure of the Government of Israel to condemn, prevent and punish such genocidal incitement constitutes in itself a grave violation of the Genocide Convention” South Africa stresses that any stated intention by the Respondent to destroy Hamas does not preclude genocidal intent by Israel towards the whole or part of the Palestinian people in Gaza.
39. Israel states that, at the provisional measures stage, the Court must establish that the rights claimed by the parties in a case are plausible, but “[s]imply declaring that claimed rights are plausible is insufficient”. According to the Respondent, the Court has also to consider the claims of fact in the relevant context, including the question of the possible breach of the rights claimed.
40. Israel submits that the appropriate legal framework for the conflict in Gaza is that of international humanitarian law and not the Genocide Convention. It argues that, in situations of urban warfare, civilian casualties may be an unintended consequence of lawful use of force against military objects, and do not constitute genocidal acts. Israel considers that South Africa has misrepresented the facts on the ground and observes that its efforts to mitigate harm when conducting operations and to alleviate hardship and suffering through humanitarian activities in Gaza serve to dispel or at the very least, militate against any allegation of genocidal intent. According to the Respondent, the statements of Israeli officials presented by South Africa are “misleading at best” and “not in conformity with government policy”. Israel also called attention to its Attorney General’s recent announcement that “[a]ny statement calling, inter alia, for intentional harm to civilians . . . may amount to a criminal offense, including the offense of incitement” and that “[c]urrently, several such cases are being examined by Israeli law enforcement authorities”. In Israel’s view, neither those statements nor its pattern of conduct in the Gaza Strip give rise to a “plausible inference” of genocidal intent. In any event, Israel contends, since the purpose of provisional measures is to preserve the rights of both parties, the Court must, in the present case, consider and “balance” the respective rights of South Africa and Israel. The Respondent emphasizes that it bears the responsibility to protect its citizens, including those captured and held hostage as a result of the attack that took place on 7 October 2023. As a consequence, it claims that its right to self-defence is critical to any evaluation of the present situation.
41. The Court recalls that, in accordance with Article I of the Convention, all States parties thereto have undertaken “to prevent and to punish” the crime of genocide. Article II provides that “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(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;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group”.
42. Pursuant to Article III of the Genocide Convention, the following acts are also prohibited by the Convention: conspiracy to commit genocide (Article III, para. (b)), direct and public incitement to commit genocide (Article III, para. (c)), attempt to commit genocide (Article III, para. (d)) and complicity in genocide (Article III, para. (e)).
43. The provisions of the Convention are intended to protect the members of a national, ethnical, racial or religious group from acts of genocide or any other punishable acts enumerated in Article III. The Court considers that there is a correlation between the rights of members of groups protected under the Genocide Convention, the obligations incumbent on States parties thereto, and the right of any State party to seek compliance therewith by another State party (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 20, para. 52).
44. The Court recalls that, in order for acts to fall within the scope of Article II of the Convention, “the intent must be to destroy at least a substantial part of the particular group. That is demanded by the very nature of the crime of genocide: since the object and purpose of the Convention as a whole is to prevent the intentional destruction of groups, the part targeted must be significant enough to have an impact on the group as a whole.” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 126, para. 198.)
45. The Palestinians appear to constitute a distinct “national, ethnical, racial or religious group”, and hence a protected group within the meaning of Article II of the Genocide Convention. The Court observes that, according to United Nations sources, the Palestinian population of the Gaza Strip comprises over 2 million people. Palestinians in the Gaza Strip form a substantial part of the protected group.
46. The Court notes that the military operation being conducted by Israel following the attack of 7 October 2023 has resulted in a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure. While figures relating to the Gaza Strip cannot be independently verified, recent information indicates that 25,700 Palestinians have been killed, over 63,000 injuries have been reported, over 360,000 housing units have been destroyed or partially damaged and approximately 1.7 million persons have been internally displaced (see United Nations Office for the Coordination of Humanitarian Affairs (OCHA), Hostilities in the Gaza Strip and Israel reported impact, Day 109 (24 Jan. 2024)).
47. The Court takes note, in this regard, of the statement made by the United Nations Under Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Mr Martin Griffiths, on 5 January 2024: “Gaza has become a place of death and despair. . . . Families are sleeping in the open as temperatures plummet. Areas where civilians were told to relocate for their safety have come under bombardment. Medical facilities are under relentless attack. The few hospitals that are partially functional are overwhelmed with trauma cases, critically short of all supplies, and inundated by desperate people seeking safety. A public health disaster is unfolding. Infectious diseases are spreading in overcrowded shelters as sewers spill over. Some 180 Palestinian women are giving birth daily amidst this chaos. People are facing the highest levels of food insecurity ever recorded. Famine is around the corner. For children in particular, the past 12 weeks have been traumatic: No food. No water. No school. Nothing but the terrifying sounds of war, day in and day out. Gaza has simply become uninhabitable. Its people are witnessing daily threats to their very existence — while the world watches on.” (OCHA, “UN relief chief: The war in Gaza must end”, Statement by Martin Griffiths, Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, 5 Jan. 2024.)
48. Following a mission to North Gaza, the World Health Organization (WHO) reported that, as of 21 December 2023: “An unprecedented 93% of the population in Gaza is facing crisis levels of hunger, with insufficient food and high levels of malnutrition. At least 1 in 4 households are facing ‘catastrophic conditions’: experiencing an extreme lack of food and starvation and having resorted to selling off their possessions and other extreme measures to afford a simple meal. Starvation, destitution and death are evident.” (WHO, “Lethal combination of hunger and disease to lead to more deaths in Gaza”, 21 Dec. 2023; see also World Food Programme, “Gaza on the brink as one in four people face extreme hunger”, 20 Dec. 2023.)
49. The Court further notes the statement issued by the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), Mr Philippe Lazzarini, on 13 January 2024: “It’s been 100 days since the devastating war started, killing and displacing people in Gaza, following the horrific attacks that Hamas and other groups carried out against people in Israel. It’s been 100 days of ordeal and anxiety for hostages and their families.
In the past 100 days, sustained bombardment across the Gaza Strip caused the mass displacement of a population that is in a state of flux constantly uprooted and forced to leave overnight, only to move to places which are just as unsafe. This has been the largest displacement of the Palestinian people since 1948. This war affected more than 2 million people the entire population of Gaza. Many will carry lifelong scars, both physical and psychological. The vast majority, including children, are deeply traumatized. Overcrowded and unsanitary UNRWA shelters have now become ‘home’ to more than 1.4 million people. They lack everything, from food to hygiene to privacy. People live in inhumane conditions, where diseases are spreading, including among children. They live through the unlivable, with the clock ticking fast towards famine. The plight of children in Gaza is especially heartbreaking. An entire generation of children is traumatized and will take years to heal. Thousands have been killed, maimed, and orphaned. Hundreds of thousands are deprived of education. Their future is in jeopardy, with far-reaching and long-lasting consequences.” (UNRWA, “The Gaza Strip: 100 days of death, destruction and displacement”, Statement by Philippe Lazzarini, Commissioner-General of UNRWA, 13 Jan. 2024.)
50. The UNRWA Commissioner-General also stated that the crisis in Gaza is “compounded by dehumanizing language” (UNRWA, “The Gaza Strip: 100 days of death, destruction and displacement”, Statement by Philippe Lazzarini, Commissioner-General of UNRWA, 13 Jan. 2024).
51. In this regard, the Court has taken note of a number of statements made by senior Israeli officials. It calls attention, in particular, to the following examples.
52. On 9 October 2023, Mr Yoav Gallant, Defence Minister of Israel, announced that he had ordered a “complete siege” of Gaza City and that there would be “no electricity, no food, no fuel” and that “everything [was] closed”. On the following day, Minister Gallant stated, speaking to Israeli troops on the Gaza border: “I have released all restraints . . . You saw what we are fighting against. We are fighting human animals. This is the ISIS of Gaza. This is what we are fighting against . . . Gaza won’t return to what it was before. There will be no Hamas. We will eliminate everything. If it doesn’t take one day, it will take a week, it will take weeks or even months, we will reach all places.”
On 12 October 2023, Mr Isaac Herzog, President of Israel, stated, referring to Gaza: “We are working, operating militarily according to rules of international law. Unequivocally. It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not aware, not involved. It is absolutely not true. They could have risen up. They could have fought against that evil regime which took over Gaza in a coup d’état. But we are at war. We are at war. We are at war. We are defending our homes. We are protecting our homes. That’s the truth. And when a nation protects its home, it fights. And we will fight until we’ll break their backbone.” On 13 October 2023, Mr Israel Katz, then Minister of Energy and Infrastructure of Israel, stated on X (formerly Twitter): “We will fight the terrorist organization Hamas and destroy it. All the civilian population in [G]aza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.”
53. The Court also takes note of a press release of 16 November 2023, issued by 37 Special Rapporteurs, Independent Experts and members of Working Groups part of the Special Procedures of the United Nations Human Rights Council, in which they voiced alarm over “discernibly genocidal and dehumanising rhetoric coming from senior Israeli government officials”. In addition, on 27 October 2023, the United Nations Committee on the Elimination of Racial Discrimination observed that it was “[h]ighly concerned about the sharp increase in racist hate speech and dehumanization directed at Palestinians since 7 October”.
54. In the Court’s view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention.
55. The Court now turns to the condition of the link between the plausible rights claimed by South Africa and the provisional measures requested.
56. South Africa considers that a link exists between the rights whose protection is sought and the provisional measures it requests. It contends, in particular, that the first six provisional measures were requested to ensure compliance by Israel with its obligations under the Genocide Convention, while the last three are aimed at protecting the integrity of the proceedings before the Court and South Africa’s right to have its claim fairly adjudicated.
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57. Israel considers that the measures requested go beyond what is necessary to protect rights on an interim basis and therefore have no link with the rights sought to be protected. The Respondent contends, inter alia, that granting the first and second measures sought by South Africa (see paragraph 11 above) would reverse the Court’s case law, as those measures would be “for the protection of a right that could not form the basis of a judgment in exercise of jurisdiction under the Genocide Convention”.
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58. The Court has already found (see paragraph 54 above) that at least some of the rights asserted by South Africa under the Genocide Convention are plausible.
59. The Court considers that, by their very nature, at least some of the provisional measures sought by South Africa are aimed at preserving the plausible rights it asserts on the basis of the Genocide Convention in the present case, namely the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts mentioned in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention. Therefore, a link exists between the rights claimed by South Africa that the Court has found to be plausible, and at least some of the provisional measures requested.[1]
[1] https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf
https://www.youtube.com/watch?v=Kj7mqGVg554&ab_channel=KatieHalper
https://www.youtube.com/watch?v=ggPjprCxfl4&ab_channel=JudgeNapolitano-JudgingFreedom