CASE TITLE:
South Africa vs. Israel
DATE OF ORDER:
March 28, 2024
BENCH:
Hon’ble President Salam
Hon’ble Vice President Sebutinde
Hon’ble Mr. Justice: Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gomez Robledo, Cleveland, Aurescu, Tladi.
Hon’ble Judge ad hoc Barak
Registrar Gautier
PARTIES:
Applicant: South Africa
Respondent: Israel
SUBJECT:
In the case, South Africa charged Israel with carrying out genocide in the Gaza Strip, notably at Rafah. In order to resolve the purported humanitarian crisis brought on by Israel ‘s military actions, South Africa requested immediate action from the International Court of Justice.
IMPORTANT PROVISIONS:
Statute of Court:
- Article 41: It allows the ICJ to issue temporary measures to protect parties rights.
- Article 36: It defines ICJ’s jurisdiction for disputes between consenting states.
- Article 31: It requires ICJ decisions to be based on International laws.
Genocide Convention:
- Article 9: It addresses the ratification process of the convention.
- Article 2: It defines genocide and its various forms of act.
- Article 3: It outlines the punishment for genocide related offences.
Rules of Court:
- Article 35: It deals with the form and contents of the application.
- Article 75: It pertains to the notification and communication of documentation.
- Article 73: It addresses the filing of written statements.
- Article 74: It concerns the submission of counter claims.
- Article 76: It deals with procedure for the oral proceedings.
OVERVIEW:
- In December 2023, South Africa filed a case against Israel for allegedly violating the Genocide Convention in Gaza.
- The Court mandated that Israel stop inciting acts of genocide, give help, and submit reports by January 2024.
- The election of Judge Tladi in February 2024 resulted in the replacement of a judge ad hoc in South Africa.
- In February 2024, South Africa called on the court to take immediate action because of the worsening situation in Rafah.
- In February 2024, the court emphasised Israel’s need to abide by earlier directives.
- In March 2024, South Africa requested that the temporary measures be modified because of the deteriorating circumstances.
- A military incursion in Rafah in May 2024 prompted South Africa to seek more measures.
- In May 2024, the parties made their case before the court.
- In Rafah, Gaza, Israel launched an attack that resulted in the displacement of about 800,000 Palestinians.
- Serious hazards, including threats to life and infrastructure, were alerted to by UN officials. Israel asserted that its actions were defensive and intended to free hostages.
- Israel’s actions were deemed insufficient by the International Court of Justice to safeguard Palestinians.
- There were worries expressed regarding the fate of the Hamas hostages.
ISSUE RAISED:
- What effects did Israel military activities have on Gaza’s ability to receive humanitarian aid and basic services?
- What steps were done to safeguard Palestine lives and alleviate the worsening humanitarian situation?
- Were there verifiable claims that Israel had committed genocide in Gaza, and if so, how were they handled?
- What issues about Israel’s ability to adequately reduce humanitarian hazards and safeguarded civilian during the military operation in Gaza’s Rafah were raised?
ARGUMENTS ADVANCED BY SOUTH AFRICA:
- South Africa contended that Gaza’s basic services and humanitarian supplies were severely endangered by Israel’s military incursion into Rafah.
- According to South Africa, access to Gaza for assistance and humanitarian relief was impeded by Israel’s control over border crossings.
- The applicant said that Palestinians in Gaza were in danger of not surviving the military operation in Rafah.
- Israel was accused by South Africa of carrying out genocidal military operations in Gaza.
- South Africa claimed that there was a possibility that the evidence of crimes was destroyed since Israel will not permit impartial investigators to enter Gaza.
- South Africa declared that a large number of Israel’s claims lacked legal or factual support.
- South Africa asserted that the current temporary solutions were enough.
- South Africa highlighted the hazards to people in Rafah, especially children, and the humanitarian catastrophe there.
- South Africa urged the court to step in to stop the Palestinian population from suffering more irreversible harm.
ARGUMENTS ADVANCED BY ISRAEL:
- Israel contended that Rafah threatened Israel’s security and acted as a military base for Hamas.
- Israel insisted that it was still facilitating humanitarian efforts and had not closed any of Gaza’s main border crossings.
- Israel asserted that throughout military operations in Gaza, it took unprecedented precautions to reduce harm to Palestinian people.
- Israel claimed to have opened new land crossings and assisted with hospital rehabilitation as part of its attempts to improve the humanitarian situation in Gaza.
- Israel stressed its commitment to reducing injury to civilians and refuted South Africa’s claim that its military operations are genocidal.
- Israel denied that there had been a widespread attack on Rafah and described the actions as focused, restricted, and localised.
- Israel said that in order to guarantee the safety of residents, evacuation operations and humanitarian measures were in place.
- Israel highlighted relief efforts with field hospitals, tents and other supplies.
- Israel claimed that the goal of the military operations in Rafah was to free the captives held by Hamas and defend Israeli civilians.
- Israel declared that procedures were in place to look into claims of misconduct by the armed services.
JUDGEMENT ANALYSIS:
- The Court concluded that since issuing its last order on March 28, 2024, a great deal had changed, especially with regard to the military offensive in Rafah and the ensuing large scale displacement of Palestinians.
- It determined that the circumstances warranted altering the interim measures specified in its earlier ruling.
- The Court recognised that there was a risk of irreversible harm to South Africa’s rights, which it said were legitimate under the Genocide Convention.
- It concluded that immediate action was necessary in response to the Gaza situation in order to shield the Palestinian people from more harm.
- In order to address the developing humanitarian catastrophe in Gaza, the court modified the provisional measures in response to a plea from South Africa.
- The Court upheld the quick and efficient implementation of the interim measures specified in its Orders of January 26, 2024, and March 28, 2024.
- It proposed new interim actions for Israel, such as stopping its military campaign in Rafah , keeping the Rafah crossing open for aid, and guaranteeing unhindered entry to Gaza for investigative organisations.
- Within 30 days of the directive’s date, Israel was expected to report on the actions it had done.
CONCLUSION:
The Court modified its earlier ruling in its conclusion, directing Israel to stop its military assault in Rafah, maintain the Rafah crossing open for humanitarian aid, and permit entry to Gaza for investigative organisations. Israel was required to report back on its compliance in a month.
