I. Introduction

13. The Court begins by recalling the immediate context in which the present case came before it. On 7 October 2023, Hamas and other armed groups present in the Gaza Strip carried out an attack in Israel, killing more than 1,200 persons, injuring thousands and abducting some 240 people, many of whom continue to be held hostage. Following this attack, Israel launched a large-scale military operation in Gaza, by land, air and sea, which is causing massive civilian casualties, extensive destruction of civilian infrastructure and the displacement of the overwhelming majority of the population in Gaza (see paragraph 46 below). The Court is acutely aware of the extent of the human tragedy that is unfolding in the region and is deeply concerned about the continuing loss of life and human suffering.

14. The ongoing conflict in Gaza has been addressed in the framework of several organs and specialized agencies of the United Nations. In particular, resolutions have been adopted by the General Assembly of the United Nations (see resolution A/RES/ES-10/21 adopted on 27 October 2023 and resolution A/RES/ES-10/22 adopted on 12 December 2023) and by the Security Council (see resolution S/RES/2712 (2023) adopted on 15 November 2023 and resolution S/RES/2720 (2023) adopted on 22 December 2023), referring to many aspects of the conflict. The scope of the present case submitted to the Court, however, is limited, as South Africa has instituted these proceedings under the Genocide Convention.

II. Prima facie jurisdiction

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).

*   *

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

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,

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:

48. Following a mission to North Gaza, the World Health Organization (WHO) reported that, as of 21 December 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:

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:

On 12 October 2023, Mr Isaac Herzog, President of Israel, stated, referring to Gaza:

On 13 October 2023, Mr Israel Katz, then Minister of Energy and Infrastructure of Israel, stated on X (formerly Twitter):

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.

*

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”.

*   *

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.

V. Risk of irreparable prejudice and urgency

60. The Court, pursuant to Article 41 of its Statute, has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings or when the alleged disregard of such rights may entail irreparable consequences (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. 226, para. 65).

61. However, the power of the Court to indicate provisional measures will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court gives its final decision. The condition of urgency is met when the acts susceptible of causing irreparable prejudice can “occur at any moment” before the Court makes a final decision on the case (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. 227, para. 66). The Court must therefore consider whether such a risk exists at this stage of the proceedings.

62. The Court is not called upon, for the purposes of its decision on the request for the indication of provisional measures, to establish the existence of breaches of obligations under the Genocide Convention, but to determine whether the circumstances require the indication of provisional measures for the protection of rights under that instrument. As already noted, the Court cannot at this stage make definitive findings of fact (see paragraph 30 above), and the right of each Party to submit arguments in respect of the merits remains unaffected by the Court's decision on the request for the indication of provisional measures.

*   *

63. South Africa submits that there is a clear risk of irreparable prejudice to the rights of the Palestinians in Gaza and to its own rights under the Genocide Convention. It asserts that the Court has repeatedly found that the criterion of irreparable prejudice is satisfied where serious risks arise to human life or other fundamental rights. According to the Applicant, daily statistics stand as clear evidence of urgency and risk of irreparable prejudice, with an average of 247 Palestinians being killed, 629 wounded and 3,900 Palestinian homes damaged or destroyed each day. Moreover, Palestinians in the Gaza Strip are, in the view of South Africa, at

The Applicant further contends that any scaling up by Israel of access of humanitarian relief to Gaza would be no answer to its request for provisional measures. South Africa adds that, “[s]hould [Israel's] violations of the Genocide Convention go unchecked”, the opportunity to collect and preserve evidence for the merits stage of the proceedings would be seriously undermined, if not lost entirely.

64. Israel denies that there exists a real and imminent risk of irreparable prejudice in the present case. It contends that it has taken — and continues to take — concrete measures aimed specifically at recognizing and ensuring the right of the Palestinian civilians in Gaza to exist and has facilitated the provision of humanitarian assistance throughout the Gaza Strip. In this regard, the Respondent observes that, with the assistance of the World Food Programme, a dozen bakeries have recently reopened with the capacity to produce more than 2 million breads a day. Israel also contends that it continues to supply its own water to Gaza by two pipelines, that it facilitates the delivery of bottled water in large quantities, and that it repairs and expands water infrastructure. It further states that access to medical supplies and services has increased and asserts, in particular, that it has facilitated the establishment of six field hospitals and two floating hospitals and that two more hospitals are being built. It also contends that the entry of medical teams into Gaza has been facilitated and that ill and wounded persons are being evacuated through the Rafah border crossing. According to Israel, tents and winter equipment have also been distributed, and the delivery of fuel and cooking gas has been facilitated. Israel further states that, according to a statement by its Defence Minister of 7 January 2024, the scope and intensity of the hostilities was decreasing.

*   *

65. The Court recalls that, as underlined in General Assembly resolution 96 (I) of 11 December 1946,

66. In view of the fundamental values sought to be protected by the Genocide Convention, the Court considers that the plausible rights in question in these proceedings, namely the right of Palestinians in the Gaza Strip to be protected from acts of genocide and related prohibited acts identified in Article III of the Genocide Convention and the right of South Africa to seek Israel's compliance with the latter's obligations under the Convention, are of such a nature that prejudice to them is capable of causing irreparable harm (see 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 26, para. 70).

67. During the ongoing conflict, senior United Nations officials have repeatedly called attention to the risk of further deterioration of conditions in the Gaza Strip. The Court takes note, for instance, of the letter dated 6 December 2023, whereby the Secretary-General of the United Nations brought the following information to the attention of the Security Council:

68. On 5 January 2024, the Secretary-General wrote again to the Security Council, providing an update on the situation in the Gaza Strip and observing that “[s]adly, devastating levels of death and destruction continue” (Letter dated 5 January 2024 from the Secretary-General addressed to the President of the Security Council, United Nations Security Council, doc. S/2024/26, 8 Jan. 2024).

69. The Court also takes note of the 17 January 2024 statement issued by the UNRWA Commissioner-General upon returning from his fourth visit to the Gaza Strip since the beginning of the current conflict in Gaza: “Every time I visit Gaza, I witness how people have sunk further into despair, with the struggle for survival consuming every hour.” (UNRWA, “The Gaza Strip: a struggle for daily survival amid death, exhaustion and despair”, Statement by Philippe Lazzarini, Commissioner-General of UNRWA, 17 Jan. 2024.)

70. The Court considers that the civilian population in the Gaza Strip remains extremely vulnerable. It recalls that the military operation conducted by Israel after 7 October 2023 has resulted, inter alia, in tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities and other vital infrastructure, as well as displacement on a massive scale (see paragraph 46 above). The Court notes that the operation is ongoing and that the Prime Minister of Israel announced on 18 January 2024 that the war “will take many more long months”. At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating.

71. The WHO has estimated that 15 per cent of the women giving birth in the Gaza Strip are likely to experience complications, and indicates that maternal and newborn death rates are expected to increase due to the lack of access to medical care.

72. In these circumstances, the Court considers that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment.

73. The Court recalls Israel's statement that it has taken certain steps to address and alleviate the conditions faced by the population in the Gaza Strip. The Court further notes that the Attorney General of Israel recently stated that a call for intentional harm to civilians may amount to a criminal offence, including that of incitement, and that several such cases are being examined by Israeli law enforcement authorities. While steps such as these are to be encouraged, they are insufficient to remove the risk that irreparable prejudice will be caused before the Court issues its final decision in the case.

74. In light of the considerations set out above, the Court considers that there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, before it gives its final decision.

VI. Conclusion and measures to be adopted

75. The Court concludes on the basis of the above considerations that the conditions required by its Statute for it to indicate provisional measures are met. It is therefore necessary, pending its final decision, for the Court to indicate certain measures in order to protect the rights claimed by South Africa that the Court has found to be plausible (see paragraph 54 above).

76. The Court recalls that it has the power, under its Statute, when a request for provisional measures has been made, to indicate measures that are, in whole or in part, other than those requested. Article 75, paragraph 2, of the Rules of Court specifically refers to this power of the Court. The Court has already exercised this power on several occasions in the past (see, for example, 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. 28, para. 77).

77. In the present case, having considered the terms of the provisional measures requested by South Africa and the circumstances of the case, the Court finds that the measures to be indicated need not be identical to those requested.

78. The Court considers that, with regard to the situation described above, Israel must, in accordance with its obligations under the Genocide Convention, 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. The Court recalls that these acts fall within the scope of Article II of the Convention when they are committed with the intent to destroy in whole or in part a group as such (see paragraph 44 above). The Court further considers that Israel must ensure with immediate effect that its military forces do not commit any of the above-described acts.

79. The Court is also of the view that Israel must 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.

80. The Court further considers that Israel must 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.

81. Israel must also 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 Genocide Convention against members of the Palestinian group in the Gaza Strip.

82. Regarding the provisional measure requested by South Africa that Israel must submit a report to the Court on all measures taken to give effect to its Order, the Court recalls that it has the power, reflected in Article 78 of the Rules of Court, to request the parties to provide information on any matter connected with the implementation of any provisional measures it has indicated. In view of the specific provisional measures it has decided to indicate, the Court considers that Israel must 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. The report so provided shall then be communicated to South Africa, which shall be given the opportunity to submit to the Court its comments thereon.

*

*   *

83. The Court recalls that its Orders on provisional measures under Article 41 of the Statute have binding effect and thus create international legal obligations for any party to whom the provisional measures are addressed (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. 230, para. 84).

*

*   *

84. The Court reaffirms that the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application or to the merits themselves. It leaves unaffected the right of the Governments of the Republic of South Africa and the State of Israel to submit arguments in respect of those questions.

*

*   *

85. The Court deems it necessary to emphasize that all parties to the conflict in the Gaza Strip are bound by international humanitarian law. It is gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release.

*

*   *

86. For these reasons,

The Court,

Indicates the following provisional measures:

1. (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:

1. (a) killing members of the group;

2. (b) causing serious bodily or mental harm to members of the group;

3. (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and

4. (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; Judge ad hoc Barak;

1. (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;

1. (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;

1. (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;

1. (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;

1. (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.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-sixth day of January, two thousand and twenty-four, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of South Africa and the Government of the State of Israel, respectively.

(Signed)  Joan E. Donoghue,

President.

(Signed) Philippe Gautier,

Registrar.

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.

(Initialled) J.E.D

(Initialled) Ph.G.

I. Introduction: context

II. Political context of the Israeli-Palestinian conflict

5. The United Nations has been heavily involved in the Israeli-Palestinian conflict throughout its history. In 1947, only two years after the founding of the United Nations, the General Assembly recommended a plan of partition regarding the government of the Mandate of Palestine. That plan provided for the creation of two independent States — one Jewish and one Arab — in recognition of the dual rights of self-determination by the Jewish and Arab inhabitants of the land (General Assembly resolution 181 (II) of 29 November 1947). This laid the foundation for the creation of the State of Israel in May 1948. Unfortunately, the rejection of the partition plan by certain Arab leaders and the outbreak of war in 1948 prevented the realization of the laudable goal of two States for two peoples. Since that time, and in particular since the Israeli seizure of the West Bank and Gaza Strip in the 1967 Arab-Israeli war, the United Nations has remained seised of the conflict.

6. In 1967, the Security Council in its resolution 242 affirmed that “the establishment of a just and lasting peace in the Middle East” required the fulfilment of the two interdependent conditions of Israeli withdrawal from territories it had seized in the conflict and recognition of Israel's sovereignty, territorial integrity and “right to live in peace within secure and recognized boundaries free from threats or acts of force” (Security Council resolution 242 of 22 November 1967). In 1973, in resolution 338, which called for a ceasefire in the 1973 Arab-Israeli war, the Security Council again decided that “immediately and concurrently with the ceasefire, negotiations shall start between the parties concerned under appropriate auspices aimed at establishing a just and durable peace in the Middle East” (Security Council resolution 338 of 22 October 1973). This emphasis on the importance of the Israeli-Palestinian and broader Arab-Israeli peace process was subsequently affirmed by the General Assembly, which has emphasized the need to achieve a “just and comprehensive settlement of the Arab-Israeli conflict” (General Assembly resolution 47/64 (D) of 11 December 1992).

7. The international community's focus on encouraging negotiation between the parties has borne fruit, including the 1979 peace treaty between Israel and Egypt and 1994 peace agreement between Israel and Jordan. Most notably, the 1993 Oslo Accords resulted in the recognition by the Palestinian Liberation Organization (“PLO”) of the State of Israel and the recognition by Israel of the PLO as the representative of the Palestinian people. The Declaration of Principles on Interim Self-Government Arrangements, signed by representatives of both parties, endorsed the framework set out in Security Council resolutions 242 and 338 and expressed the parties’ agreement on the need to “put an end to decades of confrontation and conflict, recognize their mutual legitimate and political rights, and strive to live in peaceful coexistence and mutual dignity and security and achieve a just, lasting and comprehensive peace settlement and historic reconciliation through the agreed political process” (Declaration of Principles on Interim Self-Government Arrangements, 13 September 1993). Although the Oslo Accords have not yet been fully implemented, they continue to bind the parties concerned and to provide a framework for allocating responsibilities between Israeli and Palestinian authorities and informing future negotiations.

8. Since that time, the United Nations has repeatedly affirmed the need for negotiations aimed at achieving a two-State solution and resolving the dispute between Israel and Palestine. In 2003, the Security Council, in resolution 1515, “[e]ndorse[d] the Quartet Performance-based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict” (the Quartet was composed of representatives of the United States, European Union, Russian Federation and United Nations) (Security Council resolution 1515 of 19 November 2003). In that resolution, the Security Council “[c]all[ed] on the parties to fulfil their obligations under the Roadmap in cooperation with the Quartet and to achieve the vision of two States living side by side in peace and security” (ibid.). Similarly, the Security Council in 2008 declared its support for negotiations between the parties and “support[ed] the parties’ agreed principles for the bilateral negotiating process and their determined efforts to reach their goal of concluding a peace treaty resolving all outstanding issues” (Security Council resolution 1850 of 16 December 2008). In 2016, the Security Council again recalled both parties’ obligations and “[c]alled upon all parties to continue, in the interest of the promotion of peace and security, to exert collective efforts to launch credible negotiations on all final status issues in the Middle East peace process” (Security Council resolution 2334 of 23 December 2016). In this regard, the Security Council “urg[ed] . . . the intensification and acceleration of international and regional diplomatic efforts and support aimed at achieving without delay a comprehensive, just and lasting peace in the Middle East” (ibid.).

9. The General Assembly has likewise regularly recalled the Oslo Accords and the Quartet Roadmap in its resolutions regarding the Israeli-Palestinian Conflict. For example, the General Assembly has:

10. Finally, the Court has itself previously pronounced on the importance of continued negotiations. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court explained:

11. As can be seen from the above history, it is clear that a permanent solution to the Israeli- Palestinian conflict can only result from good faith negotiations between Israeli and Palestinian representatives working towards the achievement of a just and sustainable two-State solution. A solution cannot be imposed from outside, much less through judicial settlement. This context must be kept in mind in assessing South Africa's Application and Request for the indication of provisional measures.

III. The events of 7 October 2023

12. On 7 October 2023, thousands of members of the Harakat al-Muqawama al-Islamiya (“Islamic Resistance Movement” or “Hamas”), a Palestinian Sunni Islamic political and military organization governing the Gaza Strip, invaded the territory of the State of Israel under cover of thousands of rockets fired indiscriminately into Israel and committed massacres, mutilations, rapes and abductions of hundreds of Israeli civilians, including men, women and children. (Israel reports that over 1,200 people were murdered that day, more than 5,500 maimed, and over 240 hostages abducted, including infants, entire families, the elderly, the disabled, as well as Holocaust survivors.) According to Israel, most of the hostages remain in captivity or are simply unaccounted for and many have been tortured, sexually abused, starved or killed while in captivity.

13. Soon after the 7 October attack, Israel, in exercise of what it describes as “its right to defend itself”, launched a “military operation” into the Gaza Strip whose objective was, first, to defeat Hamas and its network and, secondly, to rescue the Israeli hostages. South Africa claims that as a result of the armed conflict that ensued between Israel and Hamas over the past 11 weeks, 1.9 million Palestinians living in Gaza (85 per cent of the population) have been internally displaced; over 22,000 Palestinians, including over 7,729 children, have been killed; over 7,780 are missing and/or presumed dead under the rubble; over 55,243 are severely injured or have suffered mental harm; and vast areas of Gaza, including entire neighbourhoods have been destroyed including 355,000 homes, places of worship, cemeteries, cultural and archaeological sites, hospitals and other critical infrastructure.

14. On 28 December 2023, South Africa filed an Application with the Registry instituting proceedings against Israel concerning alleged violations of the Genocide Convention. South Africa alleges that the acts taken by Israel against the Palestinian people in the wake of the attacks in Israel of 7 October 2023 are genocidal in character because “they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group, that being the part of the Palestinian group in the Gaza Strip” (Application, para. 1). In South Africa's view, Israel has violated its obligations under the Genocide Convention in several respects, including by failing to prevent genocide; committing genocide; and failing to prevent or punish the direct and public incitement to genocide. The requests of South Africa are accurately rehearsed in paragraph 2 of the Order.

15. In addition to the Application, South Africa has requested that the Court indicate provisional measures. The provisional measures requested by the Applicant at the end of its oral observations are accurately rehearsed in paragraph 11 of the Order. For its part, Israel, whilst acknowledging that the events of 7 October 2023 and the ensuing war between Hamas and Israel have wracked untold suffering on innocent Israeli and Palestinian civilians, including unprecedented loss of life, protests the Applicant's description of Israel's conduct during this war as “genocide”. Israel argues that not every conflict is genocidal, nor does the threat or use of force necessarily constitute an act of genocide within the meaning of Article II of the Genocide Convention. Israel maintains that, in view of the ongoing threat, brutality and lawlessness of Hamas that it continues to face, it has an inherent and legitimate duty to protect the Israeli people and territory, in accordance with international humanitarian law, from attack by an armed group or groups that have openly declared their intention to annihilate the Jewish State. In Israel's view, South Africa's present request for the indication of provisional measures is tantamount to an attempt to deny Israel its ability to meet its legal obligation to defend its citizens, rescue its hostages still in Hamas custody and to enable the over 110,000 internally displaced Israelis to safely return to their homes. In its oral observations, Israel requests the Court to reject South Africa's Request for the indication of provisional measures and to remove the case from the General List.

IV. Some of the conditions for the indication of provisional measures have not been met

16. The Court has, through its jurisprudence, progressively developed legal standards or criteria to determine whether it should exercise its power under Article 41 of its Statute to indicate provisional measures. In the present case, the Court should determine (1) whether it has prima facie jurisdiction to entertain the alleged dispute between the Parties (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. 217, para. 24; 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, pp. 9–17, paras. 16–42); (2) whether the rights asserted by South Africa are plausible and have a link with the requested measures (Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Provisional Measures, Order of 3 October 2018, I.C.J. Reports 2018 (II), p. 638, para. 53); and (3) whether the situation is urgent and presents a risk of irreparable prejudice to the rights asserted (ibid., pp. 645–646, paras. 77–78).

V. The provisional measures indicated by the Court are not warranted

33. In my view, the First measure obligating Israel to “take all measures within its power to prevent the commission of all acts within the scope of Article II of [the Genocide] Convention” effectively mirrors the obligation already incumbent upon Israel under Articles I and II of the Genocide Convention and is therefore redundant. The Second measure obligating Israel to ensure “with immediate effect that its military does not commit any acts described in point 1 above” also seems redundant as it is either already covered under the first measure or is a mirror of the obligation already incumbent upon Israel under Articles I and II of the Genocide Convention. The Third measure obligating Israel to “take all measures within its power to prevent and punish the direct and public incitement to commit genocide” also mirrors the obligation already incumbent upon Israel under Articles I and III of the Genocide Convention and is therefore redundant. The Fourth measure obligating Israel to “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” has no link with any of the rights purportedly claimed under the Genocide Convention. In other words, under that Convention, a State party has no duty to provide or to enable the provision of, humanitarian assistance, as such. There may be an equivalent duty under IHL but not the Genocide Convention. Besides, there is evidence before the Court that the provision of humanitarian assistance is already taking place with the involvement of Israel and other international organizations, notwithstanding the continuing military operation. The evidence also points to an improvement in the provision of basic needs in the affected areas. This measure too seems unnecessary in the circumstances. Regarding the Fifth measure obligating Israel to “take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Articles II and III of the [Genocide] Convention”, there does not seem to be any evidentiary basis for assuming that Israel is engaged in the deliberate destruction of evidence as such. Any destruction of infrastructure is not attributable to the deliberate efforts of Israel to destroy evidence but rather to the exigencies of an ongoing conflict with Hamas, which is not a party to these proceedings. It is difficult to envisage how one of the belligerent parties can be expected to unilaterally “prevent the destruction of evidence” while leaving the other one free to carry on unabated. Finally, in respect of the Sixth measure, given that the other measures are not warranted, there is no reason for Israel to be required to “submit a report to the Court on all measures taken to give effect to th[e] Order”.

34. Lastly, a word about the Israeli hostages that remain in the custody of their captors and their families. I join the majority in expressing the Court's grave concern about the fate of the hostages (including children, babies, women, the elderly and sometimes entire families) still held in custody by Hamas and other armed groups following the attack on Israel of 7 October 2023, and in calling for their “immediate and unconditional release” (See Order, paragraph 85). I would only add the following observation. In its Request for provisional measures, South Africa emphasised that both Parties to these proceedings have a duty to act in accordance with their obligations under the Genocide Convention in relation to the situation in Gaza, leaving one wondering what positive contribution the Applicant could make towards defusing the ongoing conflict there. During the oral proceedings in the present case, it was brought to the attention of the Court that South Africa, and in particular certain organs of government, have enjoyed and continue to enjoy a cordial relationship with the leadership of Hamas. If that is the case, then one would encourage South Africa as a party to these proceedings and to the Genocide Convention, to use whatever influence they might wield, to try and persuade Hamas to immediately and unconditionally release the remaining hostages, as a good will gesture. I have no doubt that such a gesture of good will would go a very long way in defusing the current conflict in Gaza.

VI. Conclusion

35. For all the above reasons, I do not believe that the provisional measures indicated by the Court in this Order are warranted and have accordingly voted against them. I reiterate that in my respectful opinion the dispute between the State of Israel and the people of Palestine is essentially and historically a political one, calling for a diplomatic or negotiated settlement, and for the implementation in good faith of all relevant Security Council resolutions by all parties concerned, with a view to finding a permanent solution whereby the Israeli and Palestinian peoples can peacefully coexist.

(Signed)  Julia Sebutinde.

I.

2. The Court can play only a limited role in the present proceedings. South Africa has brought its Application against Israel based on the Genocide Convention alone. This means that the case concerns, first, only alleged violations of the Genocide Convention and, second, only alleged violations by Israel of that Convention. Thus, the case does not concern possible violations of other rules of international law, such as war crimes, and it does not concern possible violations of the Genocide Convention by persons associated with Hamas. While these limitations may be unsatisfactory, the Court is bound to respect them. I would like to recall, however, that persons associated with Hamas remain responsible for any acts of genocide that they may have committed. Also, both Israel and persons associated with Hamas remain legally responsible for any possible breaches by them of other rules of international law, including international humanitarian law. Any such responsibility can and should be determined through other legal procedures.

3. The Genocide Convention of 1948 is a very special treaty. It was concluded in 1948 in the wake of the Holocaust committed by Nazi Germany against the Jewish people in Europe. In its preamble, the Convention recognizes that “genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world”, and it expresses the commitment of humanity “to liberate mankind from such an odious scourge”. For this purpose, Article II of the Convention legally defines the crime of genocide as specific acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. I can understand that Israel, which was established in 1948 as a homeland offering protection to the Jewish people, including against another genocide, strongly rejects allegations that it has now violated the Genocide Convention.

4. However, the Court cannot dismiss South Africa's Application on this ground. By acceding to the Genocide Convention, Israel has accepted the jurisdiction of the Court under Article IX thereof in “[d]isputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III”.

5. The Court is not asked, in the present phase of the proceedings, to determine whether South Africa's allegations of genocide are well founded. At this stage, the Court may only examine whether the circumstances of the present case, as they have been presented to the Court, justify the ordering (“indication”) of provisional measures to protect rights under the Genocide Convention which are at risk of being violated before the decision on the merits is rendered. For this examination, the Court need not address many well-known and controversial questions, such as those relating to the right to self-defence and the right of self-determination of peoples, or regarding territorial status. The Court must remain conscious that the Genocide Convention is not designed to regulate armed conflicts as such, even if they are conducted with an excessive use of force and result in mass casualties.

6. The limited scope of the present phase of the proceeding requires a summary assessment by the Court of certain widely divergent claims by the Parties. It is regrettable how much the Parties talked past each other during the oral proceedings. South Africa hardly mentioned the attack of 7 October 2023 and the ensuing massacre; Israel barely mentioned the United Nations reports on the humanitarian situation in the Gaza Strip. South Africa hardly mentioned the efforts by Israel to evacuate the civilian population from areas of hostilities; Israel did not satisfactorily address highly problematic forms of speech by some of its officials, including members of its military.

7. Facing the widely divergent presentations of the Parties, the Court needs to apply the existing legal standards. The present case is not the first in which a State has asked the Court to indicate provisional measures based on the Genocide Convention. The Court has already indicated such measures more than once, including in 2020 in the case between The Gambia and Myanmar. As extraordinary as the present case may be, the Court has the means to deal with it: its own jurisprudence. The present Order applies the standards developed in that jurisprudence, without, however, identifying relevant differences between this case and previous cases before the Court and specifying the relative importance of certain factors. I therefore wish to explain why I voted in favour of the Order.

II.

8. It is important to bear in mind that “the essential characteristic of genocide”, distinguishing it from other criminal acts (e.g. crimes against humanity and war crimes), is the existence of an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”Footnote ². The Court has established a high threshold for the definite determination of genocidal intent at the stage of the merits. In the absence of a “general plan to this effect”, the “intent to destroy, in whole or in part, a protected group” can only be inferred from “a pattern of conduct” if this is the “only reasonable inference that can be drawn” therefromFootnote ³.

9. At this stage of the proceedings, the Court is not called upon to determine definitively whether there have been violations of the rights under the Genocide Convention which South Africa wishes to see protected, but only whether these rights are “plausible” and whether there is a “real and imminent risk of irreparable injury” to them before the Court renders its judgment on the meritsFootnote ⁴.

10. The jurisprudence of the Court is not entirely clear as to what “plausibility” entailsFootnote ⁵. Recent jurisprudence suggests that any request for the indication of provisional measures must provide some level of evidence supporting its allegationsFootnote ⁶, including indications for the presence of any essential mental elementsFootnote ⁷. In the present Order, the Court has noted the importance of the specific genocidal intent without, however, specifying its plausibility in the present case (see paragraphs 44 and 78).

11. Given the crucial role of genocidal intent for rights under the Genocide Convention and for the distinction between genocidal acts and other criminal acts, the plausibility of this mental element is, in my view, indispensable at the provisional measures stage of proceedings involving allegations of genocide. This is confirmed by the Court's Order of 23 January 2020 in The Gambia v. Myanmar. It is true that the Court stated in paragraph 56 of that Order that

12. However, this does not preclude that such intent must be shown to be plausible under the circumstances. Indeed, the same paragraph 56 confirms that the Order must be read as being based on the facts and circumstances referred to in the preceding paragraphs. There, the Court considered detailed reports by the Independent International Fact-Finding Mission on MyanmarFootnote ⁸. Each of these reports examines at length — and eventually declares plausible — the existence of genocidal intentFootnote ⁹. In paragraph 55 of the above-mentioned Order, the Court explicitly takes note of the conclusion drawn in the reports that “on reasonable grounds . . . the factors allowing the inference of genocidal intent [were] present”. It was based on these findings regarding genocidal intent that the Court considered the rights under the Genocide Convention to be plausible. The Order of 23 January 2020 thus confirms that the existence of genocidal intent must be plausible for the indication of provisional measures based on the Genocide Convention.

13. Bearing these considerations in mind, I am not persuaded that South Africa has plausibly shown that the military operation undertaken by Israel, as such, is being pursued with genocidal intent. The evidence provided by South Africa regarding the Israeli military operation differs fundamentally from that contained in the reports by the United Nations fact-finding mission on Myanmar's so-called “clearance operation” in 2016 and 2017 which led the Court to adopt its Order of 23 January 2020 in The Gambia v. Myanmar. These reports provided detailed indications of the involvement of military and security forces in atrocities committed against the Rohingya groupFootnote ¹⁰. Having considered various other possible inferences from the available information, in particular security considerationsFootnote ¹¹, the report found that “[t]he actions of those who orchestrated the attacks on the Rohingya read as a veritable check-list [of genocidal intent]”, concluding “on reasonable grounds, that the factors allowing the inference of genocidal intent are present”Footnote ¹². Based on this information, the Court considered that, under the circumstances, the rights of the Rohingya group deriving from Article II (a) to (d) of the Genocide Convention, as alleged by The Gambia, were plausible.

14. The information provided by South Africa regarding Israel's military operation is not comparable to the evidence before the Court in The Gambia v. Myanmar in 2020. While the Applicant cannot now be expected to provide the Court with detailed reports of an international fact-finding mission, it is not sufficient for South Africa to point to the terrible death and destruction that Israel's military operation has brought about and is continuing to bring about. The Applicant must be expected to engage not only with the stated purpose of the operation, namely to “destroy Hamas” and to liberate the hostages, but also with other manifest circumstances, such as the calls to the civilian population to evacuate, an official policy and orders to soldiers not to target civilians, the way in which the opposing forces are confronting each other on the ground, as well as the enabling of the delivery of a certain amount of humanitarian aid, all of which may give rise to other plausible inferences from an alleged “pattern of conduct” than genocidal intent. Rather, these measures by Israel, while not conclusive, make it at least plausible that its military operation is not being conducted with genocidal intent. South Africa has not called these underlying circumstances into question and has, in my view, not sufficiently engaged with their implications for the plausibility of the rights of Palestinians in the Gaza Strip deriving from the Genocide Convention.

15. Even though I do not find it plausible that the military operation is being conducted with genocidal intent, I voted in favour of the measures indicated by the Court. To indicate those measures, it is not necessary for the Court to find that the military operation as such implicates plausible rights of Palestinians in the Gaza Strip. My decision to vote in favour of the measures indicated rests on the plausible claim by South Africa that certain statements by Israeli State officials, including members of its military, give rise to a real and imminent risk of irreparable prejudice to the rights of Palestinians under the Genocide Convention (see paragraphs 50–52 of the Order). At the present stage of the proceedings, it is not necessary to determine whether such statements should be characterized as acts of “[d]irect and public incitement to commit genocide” within the meaning of Article III (c) of the Genocide Convention. It is true that some of these statements can be read as referring exclusively to Hamas and other armed groups in the Gaza Strip. However, these statements are at least highly ambiguous in their use of dehumanizing and indiscriminate language against Palestinians in the Gaza Strip as a group. Since they were made by high-ranking officials, who thereby also addressed soldiers involved in hostilities in the Gaza Strip, I cannot plausibly exclude that such statements contribute to a potential failure by Israel to prevent and punish acts of public and direct incitement to genocide. Indeed, South Africa has provided evidence, not contradicted by Israel, that inflammatory parts of relevant statements have been echoed in a threatening way by members of the Israeli armed forcesFootnote ¹³. This confirms that such statements may contribute to a “serious risk” that acts of genocide other than direct and public incitement may be committed, giving rise to Israel's obligation to prevent genocideFootnote ¹⁴.

16. Statements by Israel and by United Nations agencies regarding the access of Palestinians in the Gaza Strip to adequate food, water and other forms of humanitarian assistance differ significantlyFootnote ¹⁵. United Nations agencies claim that there is a desperate lack of food and other goods necessary for the survival of the populationFootnote ¹⁶. Their statements raise the question whether the Israeli authorities are unjustifiably restricting the delivery of food and other necessary goods to the entire civilian population in the Gaza Strip, or at least to substantial parts of the populationFootnote ¹⁷. Under the circumstances and at the provisional measures stage, I think that weight must be given to the respective assessments of United Nations agencies regarding the circumstances of the existentially threatening situation of the group of Palestinians in the Gaza Strip. I have therefore also voted in favour of measure (4).

III.

17. South Africa has, in my view, shown that some, but not all, of the rights which it has alleged are plausible at the present preliminary stage of the proceedings (see paragraph 54 of the Order). I view the measures indicated by the Court today as responding to certain plausible risks for the rights of Palestinians in the Gaza Strip deriving from the Genocide Convention, and as reminding Israel of its obligations under that Convention.

(Signed)  Georg Nolte.

I. Genocide: an autobiographical remark

3. The Genocide Convention holds a very special place in the heart and history of the Jewish people, both within and beyond the State of Israel. The term “genocide” was coined in 1942 by a Jewish lawyer from Poland, Raphael Lemkin, and the impetus for the adoption of the Genocide Convention came from the carefully planned and deliberate murder of six million Jews during the Holocaust.

4. I was five years old when, as part of Operation Barbarossa, the German army occupied the city in which I was born — Kaunas — in Lithuania. Within a few days, almost 30,000 Jews in Kaunas were taken from their homes and put into a ghetto. It was as if we were sentenced to death, awaiting our execution. On 26 October 1941, every Jew in the ghetto was instructed to gather in the central square, known as “Democracy Square”. Around 9,000 Jews were taken from the square on that day and executed by machine gun fire.

There was constant hunger in the overcrowded ghetto. But despite all the difficulties, there was an organized community life. It was a community of individuals condemned to death, yet in their hearts there was a spark of hope for life and a desire to preserve basic human dignity.

5. At the beginning of 1944, the Nazis rounded up all children under the age of 12, loaded them onto trucks and shot them during the infamous “Kinder Aktion”. It was clear that I had to leave in order to survive. I was smuggled out of the ghetto in a sack and taken to a Lithuanian farmer. A couple of weeks later my mother and I were transferred to another farmer. We had to be very discreet, so the farmer built a double wall in one of the rooms. We hid in that narrow space until we were finally liberated by the Red Army on 1 August 1944. Only five per cent of the Jews of Lithuania had survived.

6. Genocide is more than just a word for me; it represents calculated destruction and human behaviour at its very worst. It is the gravest possible accusation and is deeply intertwined with my personal life experience.

7. I have thought a lot about how this experience has affected me as a judge. In my opinion, the effect has been twofold. First, I am deeply aware of the importance of the existence of the State of Israel. If Israel had existed in 1939, the fate of the Jewish people might have been different. Second, I am a strong believer in human dignity. The Nazis and their collaborators sought to reduce us to dust and ashes. They aimed to strip us of our human dignity. However, in this, they failed. During the most challenging moments in the ghetto, we preserved our humanity and the spirit of humankind. The Nazis succeeded in murdering many of our people, but they could not take away our humanity.

8. The rebirth following the Holocaust is the rebirth of the human being, of the centrality of humanity and of human rights for every person. Many international instruments focusing on the rights of the individual were adopted after 1945, and the protection of human rights is also deeply rooted in the Israeli legal system.

II. Israel's commitment to the rule of law and international humanitarian law

9. Israel is a democracy with a strong legal system and an independent judicial system. Whenever there is tension between national security interests and human rights, the former must be attained without compromising the protection of the latter. As I have written: “Security and human rights go hand in hand. There is no democracy without security; there is no democracy without human rights. Democracy is based upon a delicate balance between collective security and individual liberty”Footnote ¹.

10. The need for such balancing has served as a silver lining in the rulings of the Supreme Court of Israel. Once, in the midst of a military operation in Gaza, the Supreme Court ordered the army to repair the water pipes that had been damaged by army tanks, and to do so while the operation was still ongoing. On the same occasion, it ordered the army to provide humanitarian aid to civilians and to halt hostilities to allow for the burial of the deadFootnote ². In its judgment on “targeted killings”, the Supreme Court ruled that Israel must always act in accordance with international humanitarian law, and that Israel must refrain from targeting terrorists when excessive harm to civilians is anticipatedFootnote ³.

11. As a judge in the Israeli Supreme Court, I wrote that every Israeli soldier carries with him (or her), in their backpack, the rules of international lawFootnote ⁴. This means that international law guides the actions of all Israeli soldiers wherever they are. I also wrote that when a democratic State fights terrorism, it does so with one hand tied behind its backFootnote ⁵. Even when fighting a terrorist group like Hamas that does not abide by international law, Israel must abide by the law and uphold democratic values.

12. The Israeli Supreme Court has also held that torture may not be used during the interrogation of terroristsFootnote ⁶, that religious sites and clergy must be protected, and that all captives must be afforded fundamental guaranteesFootnote ⁷. Naturally, as in any democratic society, some of these rulings have been criticized in Israel. Still, the public stands behind them and the military upholds them on a regular basis. Rulings of the Israeli Supreme Court — many of them based on international law — are the standards by which Israel conducts itself.

13. International law is also an integral part of the military code and the conduct of the Israeli army. The Code of Ethics of the Israeli Defense Forces states that

When those norms are violated, the Attorney General, the State Attorney and the Military Advocate General take the necessary measures to bring those responsible to justice, and their decisions are subject to judicial review. In appropriate cases, the Israeli Supreme Court may instruct them how to act. This is Israel's DNA. Governments have been replaced, new justices have come to the Supreme Court, but the DNA of Israel's democracy does not change.

14. Israel's multiple layers of institutional safeguards also include legal advice provided in real time, during hostilities. Strikes that do not meet the definition of a military objective or that do not comply with the rule of proportionality cannot go forward. The holdings of the Israeli Supreme Court and Israel's institutional framework demonstrate a commitment to the rule of law and human life — a commitment that runs through its collective memory, institutions, and traditions.

III. The Court's prima facie jurisdiction

15. The Court has affirmed its prima facie jurisdiction for the purpose of indicating provisional measures (see Order, para. 31). However, it is doubtful whether South Africa brought this dispute in good faith. After South Africa sent a Note Verbale to Israel on 21 December 2023, concerning the situation in Gaza, Israel replied with an offer to engage in consultations at the earliest possible opportunity. South Africa, instead of accepting this offer, which could have led to fruitful diplomatic talks, decided to institute proceedings against Israel before this Court. It is regrettable that Israel's attempt to open a dialogue was met with the filing of an application.

If anything, history has taught us that the best attempts at peace in the Middle East have generally been a result of political negotiations and not judicial recourse. The 1978 peace talks between Egypt and Israel at Camp David are a good example of this. These talks succeeded when a third party — the United States — entered the process and assisted the parties in reaching an agreement. In my opinion, a similar scenario could have unfolded here. While the jurisdictional clause of the Genocide Convention does not require formal negotiations, the principle of good faith dictates that at least some efforts should be made to resolve disputes amicably before resorting to the Court. South Africa made no such effort and denied Israel a reasonable opportunity to engage meaningfully in a discussion on how to address the difficult humanitarian situation in Gaza.

16. The present case involves an additional difficulty. The other belligerent in the armed conflict in Gaza, Hamas, is not a party to the present proceedings. Thus, it is not possible to indicate measures directed at Hamas in the Order's operative clause. While this does not prevent the Court from exercising its jurisdiction, it is an essential matter to be considered when determining the appropriate measures or remedies in this case.

IV. The armed conflict in Gaza

17. The Court briefly recalls the immediate context in which the present case came before it, namely the attack of 7 October 2023 by Hamas and the military operation launched by Israel in response to that attack (see Order, para 13). The Court, however, fails to give a complete account of the situation which has unfolded in Gaza since that fateful day.

18. On 7 October 2023, on the day of the Sabbath and the Jewish holiday of “Simchat Torah”, over 3,000 Hamas terrorists, aided by members of the Palestinian Islamic Jihad, invaded Israeli territory by land, air and sea. The assault began in the early morning hours, with a barrage of rockets over the entire country and the infiltration of Hamas into Israeli territory. Alerts sounded all over Israel, civilians and soldiers took shelter, and many were later massacred inside those shelters. In other places, houses were burned down with civilians still in their safe rooms, burning alive or suffocating to death. At the Reim Nova Music Festival, young Israelis were murdered in their sleep or while running for their lives across open fields. Women's bodies were mutilated, raped, cut up and shot in the worst possible places. Overall, more than 1,200 innocent civilians, including infants and the elderly, were murdered on that day. Two hundred and forty Israelis were kidnapped and taken to the Gaza Strip, and over 12,000 rockets have been fired at Israel since 7 October. These facts have been largely reported and are indisputable.

19. Israel, faced with an ongoing assault on its people and territory, launched a military operation. The Israeli authorities declared that the purpose of the operation is to dismantle Hamas and destroy its military and governmental capabilities, return the hostages, and secure the protection of Israel's borders.

20. Hamas has vowed to “repeat October 7 again and again”Footnote ⁹. Hamas is thus an existential threat to the State of Israel, and one that Israel must repel. This terrorist organization rules over the Gaza Strip, exercising military and governmental functions. Hamas seeks to immunize its military apparatus by placing it within and below civilian infrastructure, which is itself a war crime, and intentionally places its own population at risk by digging tunnels under their homes and hospitals. Hamas fires missiles indiscriminately at Israel, including from schools and other civilian installations in Gaza, in the full knowledge that many of them will fall inside Gaza causing death and injuries to innocent Palestinians. This is Hamas's well-known modus operandi.

21. A few examples illustrate this well. When humanitarian aid enters Gaza, Hamas hoards it for its own purposes. Hamas has made clear that its tunnel network is designed for its fighters, rather than for civilians seeking shelter from the hostilities. Hamas has compromised the inherently civilian nature of schools and hospitals in Gaza, using them for military purposes by storing or launching rockets from and under these sites.

22. The fate of the hostages is especially disturbing. The act of hostage taking committed by Hamas on 7 October constitutes a grave breach of the Geneva Conventions of 12 August 1949 and is criminalized under the Rome StatuteFootnote ¹⁰. Hamas has not provided the names of the hostages, or any information regarding who is dead and who is still alive. Nor have they allowed the International Committee of the Red Cross (ICRC) to visit the hostages, as the law requires. The ICRC has not been able to provide medical supplies to the hostages, does not know their whereabouts, and has not succeeded in securing their release. As I write, this agony has now been ongoing for over 100 days.

23. This is not to undermine the suffering of innocent Palestinians. I have been personally and deeply affected by the death and destruction in Gaza. There is a danger of food and water shortages and the outbreak of diseases. The population lives in precarious conditions, facing the unfathomable consequences of war. In the role that has been entrusted to me as a judge ad hoc, but also as a human being, it is important for me to express my most sincere and heartfelt regret for the loss of innocent lives in this conflict.

24. The State of Israel was brought before this Court as its leadership, soldiers, and children processed the shock and trauma of the attack of 7 October. An entire nation trembled and, in the blink of an eye, lost its most basic sense of security. Fears of additional attacks were palpable as infiltrations continued in the days following the attack. The immediate context in which South Africa's request was brought to the Court should have played a more central role in the Court's reasoning. While it in no way relieves Israel of its obligations, this immediate context forms the inescapable backdrop for the legal analysis of Israel's actions even at this stage of the proceedings.

V. The appropriate legal framework for analysing the situation in Gaza

25. South Africa seised the Court on the basis of the Genocide Convention, Article IX of which provides the Court with jurisdiction to resolve disputes related to the “interpretation, application or fulfilment” of that treaty, “including those relating to the responsibility of a State for genocide”. This does not mean that the Genocide Convention provides the appropriate legal prism through which to analyse the situation.

26. In my view, the appropriate legal framework for analysing the situation in Gaza is International Humanitarian Law (IHL) — and not the Genocide Convention. IHL provides that harm to innocent civilians and civilian infrastructure should not be excessive in comparison to the military advantage anticipated from a strike. The tragic loss of innocent lives is not considered unlawful so long as it falls within the rules and principles of IHL.

27. The drafters of the Genocide Convention clarified in their discussions that

28. Violations of IHL occurring in the context of the armed conflict, must be investigated and prosecuted by the competent Israeli authorities.

VI. Lack of intent

29. Central to the crime of genocide is the element of intent, namely the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group as such. International courts have been reluctant to establish such intent and characterize atrocities as genocide. The International Criminal Tribunal for Rwanda (ICTR) was established primarily to prosecute the crime of genocide. Nonetheless, it set a high threshold for proving the specific intent required for genocide. In its very first case, the Akayesu case, the ICTR described the required specific intent as a “psychological relationship between the physical result and the mental state of the perpetrator” which “demands that the perpetrator clearly seeks to produce the act charged”Footnote ¹². This high bar explains some of the full or partial acquittals at the ICTRFootnote ¹³. An analogous bar was also adopted by the International Criminal Tribunal for Yugoslavia.

30. The Court, with regard to State responsibility, has similarly adopted a restrictive approach in cases involving genocide on the merits. In Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the Court concluded that — save in the case of Srebrenica — the widespread and serious atrocities committed in Bosnia and Herzegovina were not carried out with the specific intent to destroy, in part, the Bosnian Muslim group (Judgment, I.C.J. Reports 2007 (I), p. 194, para. 370). Some years later, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), the Court found that the required intent was lacking altogether and therefore dismissed Croatia's claims in their entirety (Judgment, I.C.J. Reports 2015 (I), p. 154, para. 524).

31. I accept that the proof of intent required at this preliminary stage is different from the one required at the merits stage. It is not necessary, at this stage, to convincingly show the mens rea of genocide by reference to particular circumstances, or for a pattern of conduct to be such that it could only point to the existence of such intentFootnote ¹⁴. However, some proof of intent is necessary. At the very least, sufficient proof to make a claim of genocide plausible.

*

32. I strongly disagree with the Court's approach regarding plausibility and, in particular, I disagree on the question of intent.

33. The Court may indicate provisional measures “only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible” (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. 18, para. 43). In the present case, the Court concluded, with scant evidence, that “the right of the Palestinians in Gaza to be protected from acts of genocide” is plausible (Order, para. 54).

34. To understand the Court's erroneous approach, it is important to compare the present case to the Gambia case: 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. To conclude that the asserted rights were plausible, in the Gambia case, the Court relied on two reports issued by an Independent International Fact-Finding Mission (IIFFM)Footnote ¹⁵. These reports were based on the meticulous collection of evidence over two years, which included 400 interviews with victims and eyewitnesses, analysis of satellite imagery, photographs and videos, the cross-checking of information against credible secondary information, expert interviews and raw dataFootnote ¹⁶. The independent experts travelled to Bangladesh, Indonesia, Malaysia and Thailand to interview victims and witnesses and hold other meetings. Furthermore, the Mission's secretariat undertook six additional field missionsFootnote ¹⁷. In its report of 12 September 2018, the IIFFM concluded that there were “reasonable grounds to conclude that serious crimes under international law ha[d] been committed”, including genocideFootnote ¹⁸. The IIFFM also stated that “on reasonable grounds . . . the factors allowing the inference of genocidal intent [were] present”Footnote ¹⁹. The IIFFM reiterated its conclusions, based on further investigations, in its second report of 8 August 2019.Footnote ²⁰

35. In the present case, there is no evidence comparable to that available to the Court in the Gambia case. To determine the plausibility of rights in the present case, the Court relies on four sets of facts. First, it looks at the figures for deaths, injuries and damage to infrastructure reported by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) (see Order, para. 46). Second, it relies on a statement made by the Under-Secretary-General of OCHA (see Order, para. 47), a report of the World Health Organization (see Order, para. 48), and a statement by the Commissioner-General of UNRWA (see Order, para. 49). Third, it notes the statements of three Israeli officials (see Order, para. 52). Fourth, it considers the views expressed by a group of Special Rapporteurs and the CERD Committee (see Order, para. 53).

36. Regarding the figures for death, injuries and damage to infrastructure, the Court omits to mention that such figures come from the Ministry of Health of Gaza, which is controlled by Hamas. They are not the United Nations’ figures. Furthermore, these figures do not distinguish between civilians and combatants, or between military objectives and civilian objects. It is difficult to draw any conclusions from them.

The statements by the Under-Secretary-General of OCHA, the WHO and the Commissioner-General of UNRWA are insufficient to prove plausible intent. None of these statements mention the term genocide or point to any trace of intent. They indeed describe a tragic humanitarian situation, which is the unfortunate result of an armed conflict, but there is no reference to the subject-matter of the Genocide Convention. Furthermore, the Court is unaware of the underlying information or methodology used by the individuals who made these statements. This is in stark contrast to the evidence available to the Court in the Gambia case.

The declarations made by the President of Israel and the Minister of Defence of Israel are not a sufficient factual basis for inferring a plausible intent of genocide. Both authorities have issued several statements clarifying that Israel's intent is the destruction of Hamas, not the Palestinians in Gaza. For example, on 29 October 2023, Israel's Minister of Defence, stated that “we are not fighting the Palestinian multitude and the Palestinian people in Gaza”. On 29 November 2023, the President of Israel said that “Israel is doing all it can, in cooperation with various partners, to increase the flow of humanitarian aid to the citizens of Gaza”. Regretfully, the Court did not take note of these statements. Finally, regarding the statements made by the Minister of Energy and Infrastructure, the latter is not an official with authority over the military. The relevant factual basis allowing for an inference of intent to commit genocide must stem from the organs which are capable of having an effect on the military operations. These organs have repeatedly explained that the purpose of the military operation is to target Hamas, not the Palestinians in Gaza.

37. It is concerning that certain Israeli officials have used inappropriate and degrading language, as noted by the group of Special Rapporteurs and the CERD Committee. Indeed, it is an issue that will have to be investigated by the competent Israeli authorities. However, to infer an intent to commit genocide from these statements, which were made in the wake of horrific attacks against the Israeli population, is plainly implausible.

38. The evidence presented by Israel shows that it is the opposite intent that is plausible and guides the military operation in Gaza. Israel pointed out that it has adopted several measures to minimize the impact of hostilities on civilians. For example, Israel continues to supply its own water to Gaza by two pipelines; it has increased access to medical supplies, facilitated the establishment of field hospitals and distributed fuel and winter equipment (see Order, para. 64, referring to CR 2024/2, pp. 50–52). Furthermore, the Prime Minister of Israel stated on 17 October 2023 “[a]ny civilian death is a tragedy . . . we're doing everything we can to get the civilians out of harm's way,” and on 28 October 2023 that “the IDF is doing everything possible to avoid harming those not involved”.

39. It is surprising that the Court took note of Israel's statements explaining the steps it has taken to alleviate the conditions faced by the population in Gaza, together with the Attorney General's statement announcing the investigation of any calls for the intentional harm to civilians (see Order, para. 73), but then it completely failed to draw conclusions from these statements when examining the existence of intent. It is even more surprising that the Court did not view any of these measures and statements as sufficient to rule out the existence of a plausible intent to commit genocide.

40. The Court's approach to plausibility in the present case is not akin to the one it took in the Gambia case, where the Court had compelling evidence of “clearance operations” committed against the Rohingya. These “clearance operations” included sexual violence, torture, the methodical planning of mass killing, denial of legal status, and instigation of hatred based on ethnic, racial, or religious groundsFootnote ²¹.

41. It is concerning that applying the Genocide Convention in these circumstances would undermine the integrity of the Convention and dilute the concept of genocide. The Genocide Convention seeks to prevent and punish the physical destruction of a group as such. It is not meant to ban armed conflict altogether. The Court's approach opens the door for States to misuse the Genocide Convention in order to curtail the right of self-defence, in particular in the context of attacks committed by terrorist groups.

VII. The measures indicated by the Court

42. I now turn to the measures indicated by the Court. It is important to recall that the Court has not made any findings with regard to South Africa's claims under the Genocide Convention. The conclusions reached by the Court in this preliminary stage do not prejudge in any way the claims brought by South Africa, which remain wholly unproven (see Order, paras. 30 and 62).

43. Regarding the conditions for the Court to indicate provisional measures, for the reasons stated above, I am not persuaded by South Africa's arguments on the plausibility of rights, since there is no indication of an intent to commit genocide. This is why I voted against the first and second provisional measures indicated by the Court. Nevertheless, it is of the utmost importance to highlight that the first and second measures indicated by the Court merely restate obligations that Israel already has under Articles I and II of the Genocide Convention. The Court has made explicit what is already implicit in light of Israel's existing obligations under the Convention.

44. Although I am convinced that there is no plausibility of genocide, I voted in favour of the third and fourth provisional measures.

With regard to the third measure, which concerns acts of public incitement, I have voted in favour in the hope that the measure will help to decrease tensions and discourage damaging rhetoric. I have noted the concerning statements by some authorities, which I am confident will be dealt with by the Israeli institutions.

With regard to the fourth measure, I voted in favour, guided by my deep humanitarian convictions and the hope that this will alleviate the consequences of the armed conflict for the most vulnerable. Through this measure, the Court reminds Israel of essential international obligations, which are already present in the DNA of the Israeli military. This measure will ensure that Israel continues to enable the delivery of humanitarian aid to Gaza, which I see as an obligation arising under IHL.

45. However, it is regretful that the Court was unable to order South Africa to take measures to protect the rights of the hostages and to facilitate their release by Hamas. These measures are based on IHL, as are those enabling the provision of humanitarian aid. Moreover, the fate of the hostages is an integral part of the military operation in Gaza. By taking measures to facilitate the release of the hostages, South Africa could play a positive role in bringing the conflict to an end.

46. I voted against the fifth provisional measure, which concerns the preservation of evidence. I did not vote against this measure because evidence is not important, but because South Africa has not shown that Israel has destroyed or concealed evidence. This claim is baseless and therefore should not have been entertained by the Court.

*

47. Genocide is a shadow over the history of the Jewish people, and it is intertwined with my own personal experience. The idea that Israel is now accused of committing genocide is very hard for me personally, as a genocide survivor deeply aware of Israel's commitment to the rule of law as a Jewish and democratic State. Throughout my life, I have worked tirelessly to ensure that the object and purpose of the Genocide Convention is realized in practice; and I have fought to make sure that genocide disappears from our lives.

48. Had the Court granted South Africa's request to put an immediate end to the military operation in Gaza, Israel would have been left defenceless in the face of a brutal assault, unable to fulfil its most basic duties vis-à-vis its citizens. It would have amounted to tying both of Israel's hands, denying it the ability to fight even in accordance with international law. Meanwhile, the hands of Hamas would have been free to continue harming Israelis and Palestinians alike.

49. It is with great respect that I have joined this Court as an ad hoc judge. I was appointed by Israel; I am not an agent of Israel. My compass is the search for morality, truth and justice. It is to protect these values that Israel's daughters and sons have selflessly paid with their lives and dreams, in a war that Israel did not choose.

(Signed)   Aharon Barak.

History of the proceedings

On 29 December 2023, South Africa filed an Application instituting proceedings against Israel 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 also contained 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 requested 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”.

Public hearings on the request for the indication of provisional measures submitted by South Africa were held on Thursday 11 and Friday 12 January. On 26 January 2024, the Court delivered its Order on South Africa's request.

Earlier press releases relating to this case are available on the Court's website.

Note: The Court's press releases are prepared by its Registry for information purposes only and do not constitute official documents.

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 seat of the Court is at the Peace Palace in The Hague (Netherlands). 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.

Information Department:

Ms Monique Legerman, First Secretary of the Court, Head of Department: +31 (0)70 302 2336 Ms Joanne Moore, Information Officer: +31 (0)70 302 2337

Mr Avo Sevag Garabet, Associate Information Officer: +31 (0)70 302 2394 Email: [email protected]

I. General observations

11. South Africa requests the “indication, clarification and/or modification” of provisional measures in the following terms:

1. 1. All participants in the conflict must ensure that all fighting and hostilities come to an immediate halt, and that all hostages and detainees are released immediately.

2. 2. All Parties to the Convention on the Prevention and Punishment of the Crime of Genocide must, forthwith, take all measures necessary to comply with all of their obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.

3. 3. All Parties to the Convention on the Prevention and Punishment of the Crime of Genocide must, forthwith, refrain from any action, and in particular any armed action or support thereof, which might prejudice the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts, or any other rights in respect of whatever judgment the Court may render in the case, or which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

4. 4. The State of Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address famine and starvation and the adverse conditions of life faced by Palestinians in Gaza, by:

   1. (a) immediately suspending its military operations in Gaza;

   2. (b) lifting its blockade of Gaza;

   3. (c) rescinding all other existing measures and practices that directly or indirectly have the effect of obstructing the access of Palestinians in Gaza to humanitarian assistance and basic services; and

   4. (d) ensuring the provision of adequate and sufficient food, water, fuel, shelter, clothing, hygiene and sanitation requirements, alongside medical assistance, including medical supplies and support.

5. 5. The State of Israel shall submit an open report to the Court on all measures taken to give effect to all provisional measures ordered by the Court to date, within one month as from the date of this Order.”

12. At the end of its written observations, Israel asks the Court to reject South Africa's Request of 6 March 2024 and not to indicate any further provisional measures.

*   *

13. The Court considers that South Africa's Request of 6 March 2024 is a request for the modification of the Order of 26 January 2024. For this reason, the Court must determine whether the conditions set forth in Article 76, paragraph 1, of the Rules of Court have been fulfilled. That paragraph reads as follows:

14. The Court must therefore first ascertain whether, taking account of the information that the Parties have provided with respect to the current situation, there is reason to conclude that the situation that warranted the indication of certain provisional measures in January 2024 has changed since that time. In considering the request before it, the Court will take account of both the situation that existed when it issued the Order of 26 January 2024 and any changes to that situation since that date, as claimed by South Africa. If the Court finds that there was a change in the situation since the delivery of its earlier Order, it will then have to consider whether such a change justifies a modification of its decision concerning provisional measures previously indicated. Any such modification would only be appropriate if the new situation were, in turn, to require the indication of provisional measures; that is to say, if the general conditions laid down in Article 41 of the Statute of the Court were also met in this instance (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Request for the Modification of the Order Indicating Provisional Measures of 7 December 2021, Order of 12 October 2022, I.C.J. Reports 2022 (II), p. 581, para. 12).

15. The Court will thus begin by determining whether there has been a change in the situation that warranted the measures indicated in its Order of 26 January 2024.

*   *

16. South Africa states that its Request of 6 March 2024 is prompted by the

In the Applicant's view, these developments, in particular the widespread starvation, constitute a “change in the situation in Gaza” for the purposes of Article 76 of the Rules of Court.

17. Israel rejects “in the strongest terms” South Africa's claims that incidents of starvation in Gaza are a direct result of its deliberate acts and omissions. It states that the armed hostilities in Gaza were in progress on 26 January 2024 and still continue. Furthermore, according to the Respondent, the Court had already taken account, in its Order of 26 January 2024, of materials introduced by South Africa with respect to food insecurity in Gaza. Consequently, in Israel's view, “the difficult and tragic situation in the Gaza Strip in the last weeks could not be said to materially change the considerations upon which the Court based its original decision concerning provisional measures”.

*   *

18. The Court recalls that, in its Order of 26 January 2024, it concluded that the civilian population in Gaza was extremely vulnerable, noting that many Palestinians in the Gaza Strip had “no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, para. 70). In its decision communicated to the Parties by letters of 16 February 2024, the Court noted, quoting the United Nations Secretary-General, that the developments in the Gaza Strip, and in Rafah in particular, “would exponentially increase what is already a humanitarian nightmare with untold regional consequences” (see paragraph 7 above). The Court observes with regret that, since then, the catastrophic living conditions of the Palestinians in the Gaza Strip have deteriorated further, in particular in view of the prolonged and widespread deprivation of food and other basic necessities to which the Palestinians in the Gaza Strip have been subjected.

19. The Court notes that, on 18 March 2024, an updated report on food insecurity in the Gaza Strip was issued by the Integrated Food Security Phase Classification Global Initiative (IPC Global Initiative), a global partnership of organizations including, inter alia, the World Food Programme (WFP), the Food and Agriculture Organization of the United Nations (FAO) and the World Health Organization (WHO). According to this report:

20. The Court also notes that earlier, on 15 March 2024, the United Nations Children's Fund (UNICEF) reported that 31 per cent of children under 2 years of age in the northern Gaza Strip suffered from acute malnutrition, “a staggering escalation from 15.6 per cent in January”, and warned that “[m]alnutrition among children is spreading fast and reaching devastating and unprecedented levels in the Gaza Strip due to the wide-reaching impacts of the war and ongoing restrictions on aid delivery” (UNICEF, “Acute malnutrition has doubled in one month in the north of Gaza strip: UNICEF”, press release, 15 March 2024).

21. The Court observes that Palestinians in Gaza are no longer facing only a risk of famine, as noted in the Order of 26 January 2024, but that famine is setting in, with at least 31 people, including 27 children, having already died of malnutrition and dehydration according to the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) (OCHA, “Hostilities in the Gaza Strip and Israel — reported impact, Day 169”, 25 March 2024).

22. The Court considers that the above-mentioned developments, which are exceptionally grave, constitute a change in the situation within the meaning of Article 76 of the Rules of Court.

23. The Court is also of the view that the provisional measures indicated in the Order of 26 January 2024 do not fully address the consequences arising from the changes in the situation explained above, thus justifying the modification of these measures. However, in order to modify the decision set out in that Order, the Court must still satisfy itself that the general conditions laid down in Article 41 of the Statute of the Court are met in the current situation.

II. Conditions for the indication of provisional measures

24. The Court recalls that, in its Order of 26 January 2024 indicating provisional measures in the present case, it concluded that “prima facie, it has jurisdiction pursuant to Article IX of the Genocide Convention to entertain the case” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, para. 31). The Court sees no reason to revisit this conclusion for the purposes of deciding on the Request of 6 March 2024.

25. In that Order, the Court also found that at least some of the rights claimed by South Africa under the Genocide Convention and for which it is seeking protection were plausible, 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. The Court considered also that, by their very nature, at least some of the provisional measures sought by South Africa are aimed at preserving these rights (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, paras. 54 and 59). The Court also sees no reason to revisit this conclusion for the purposes of deciding on the Request of 6 March 2024.

26. The Court must now consider whether the current situation entails a risk of irreparable prejudice to the plausible rights claimed by South Africa and whether there is urgency that would justify the modification of the decision set out in its Order of 26 January 2024.

27. The Court recalls in this regard that it concluded, in its Order of 26 January 2024, that in view of the fundamental values sought to be protected by the Genocide Convention, the plausible rights in question in these proceedings are of such a nature that prejudice to them is capable of causing irreparable harm and that there was urgency, in the sense that there existed a real and imminent risk that irreparable prejudice would be caused to those rights before it gives its final decision (see Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, paras. 65–74).

*   *

28. According to the Applicant, the demand for “additional and/or modified provisional measures . . . could not be starker”, having regard to the magnitude and gravity of the situation facing the Palestinian people in Gaza. South Africa states that, as of 6 March 2024, in addition to causing the death by starvation of Palestinian children, “Israel has also continued to kill approximately 4,548 Palestinian men, women and children since 26 January 2024, and to wound a further 7,556”.

29. The Respondent contends that nothing in the Request of 6 March 2024 establishes that the provisional measures already indicated by the Court would no longer be sufficient. Israel recognizes that food insecurity in Gaza, and especially in northern Gaza, is a serious challenge, but states that there is an “extensive record of Israeli efforts in the humanitarian sphere to alleviate the suffering of the civilian population in general and to address the challenge of food insecurity in particular”. Israel refers, inter alia, to the establishment of a maritime corridor and a floating pier, to humanitarian airdrops and the facilitation of aid through land routes, as well as its co-operation with United Nations agencies. Furthermore, according to Israel, South Africa has given no justification for the specific additional provisional measures sought in its Request of 6 March 2024.

*   *

30. The Court has already observed that the catastrophic humanitarian situation in the Gaza Strip that existed when it issued its Order of 26 January 2024 has deteriorated even further (see paragraphs 18–21 above).

31. The Court notes the unprecedented levels of food insecurity experienced by Palestinians in the Gaza Strip over recent weeks, as well as the increasing risks of epidemics. It recalls, in this regard, the briefing provided to the Security Council by senior representatives of OCHA, FAO and WFP on 27 February 2024. In that context, the Director of Coordination of OCHA stated:

32. According to a report issued by WHO on 22 February 2024,

33. The Respondent has referred to “significant measures undertaken continuously by Israel throughout the present hostilities — including various humanitarian initiatives and the ongoing coordination of access to humanitarian supplies”. The Court recalls that Israel has explained that the challenges it faces in facilitating humanitarian relief to Gaza are manifold, and that “[s]ome of these challenges are inherent to any theatre of active hostilities, particularly one that is densely populated and heavily dependent on international aid”.

34. The Court also notes the statement of the United Nations High Commissioner for Human Rights, according to which

35. The Court observes that, as also stated by United Nations representatives and others, while air and sea routes are helpful under the present circumstances, there is no substitute for land routes and entry points from Israel into Gaza to ensure the effective and efficient delivery of food, water, medical and humanitarian assistance; there is an urgent need to increase the capacity and number of open land crossing points into Gaza and to maintain them open so as to increase the flow of aid delivery (see, for example, United Nations, “Joint statement by Sigrid Kaag, UN Senior Humanitarian and Reconstruction Coordinator for Gaza, and Jorge Moreira da Silva, UN Under-Secretary-General and Executive Director of the United Nations Office for Project Services (UNOPS), welcoming the opening of a maritime corridor to Gaza”, press release, 12 March 2024).

36. The Court takes note moreover of certain declarations of representatives of the United Nations and the various organizations attempting to provide relief in Gaza, according to which the catastrophic humanitarian situation can only be addressed if the military operations in the Gaza Strip are suspended. For instance, the UN Under-Secretary-General for Humanitarian Affairs stated that “the humanitarian community knows what to do to save lives in Gaza, but we need the right conditions and guarantees. These include a ceasefire and full adherence to the rules of war” (United Nations, Meetings Coverage and Press Releases, “Daily Press Briefing by the Office of the Spokesperson for the Secretary-General”, 8 March 2024). In the same vein, WFP's Deputy Executive Director emphasized that “[a] ceasefire in Gaza is urgently needed to enable an operation of this size” (WFP, “WFP food deliveries to northern Gaza face further setbacks”, news release, 5 March 2024) and, according to the Executive Director of UNICEF, “[a]n immediate humanitarian ceasefire continues to provide the only chance to save children's lives and end their suffering” (UNICEF, “Acute malnutrition has doubled in one month in the north of Gaza strip: UNICEF”, press release, 15 March 2024). The President of the International Committee of the Red Cross (ICRC) also issued an “urgent call [for] a cessation of hostilities to allow for meaningful assistance to reach the people in need” (ICRC, “A statement on Gaza and Israel from the President of the ICRC”, news release, 11 March 2024).

37. The Court also takes note of resolution 2728 (2024) of the Security Council, which “[d]emand[ed] an immediate ceasefire for the month of Ramadan respected by all parties leading to a lasting sustainable ceasefire”.

38. The Secretary-General of the United Nations, for his part, referring to the latest IPC Global Initiative report on food insecurity in Gaza, stated that:

39. The Court recalls that, since 26 January 2024, Israel's military operation has reportedly led to over 6,600 additional fatalities and almost 11,000 additional injuries among Palestinians in the Gaza Strip (OCHA, “Hostilities in the Gaza Strip and Israel — reported impact, Day 169”, 25 March 2024).

40. In light of the considerations set out above, and taking account of the provisional measures indicated on 26 January 2024, the Court finds that the current situation before it entails a further risk of irreparable prejudice to the plausible rights claimed by South Africa and that there is urgency, in the sense that there exists a real and imminent risk that such prejudice will be caused before the Court gives its final decision in the case.

III. Conclusion and measures to be adopted

41. The Court concludes, on the basis of the above considerations, that the circumstances of the case require it to modify its decision concerning provisional measures indicated in the Order of 26 January 2024.

42. The Court recalls that, in accordance with Article 75, paragraph 2, of its Rules, when a request for the indication of provisional measures has been made, it has the power under its Statute to indicate measures that are, in whole or in part, other than those requested.

43. In the present case, having considered the terms of the provisional measures requested by South Africa and the circumstances of the case, the Court finds that the measures to be indicated need not be identical to those requested.

44. With regard to the measures requested by South Africa addressed to States or entities not parties to the present proceedings, the Court recalls that:

The Court thus cannot, in the exercise of its power to indicate provisional measures in the present case, indicate the first three provisional measures sought by the Applicant (see paragraph 11 above).

45. In conformity with its obligations under the Genocide Convention, and in view of the worsening conditions of life faced by Palestinians in Gaza, in particular the spread of famine and starvation, Israel shall: (a) take all necessary and effective measures to ensure, without delay, in full co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements, as well as medical supplies and medical care to Palestinians throughout Gaza, including by increasing the capacity and number of land crossing points and maintaining them open for as long as necessary; and (b) ensure with immediate effect that its military does not commit acts which constitute a violation of any of the rights of the Palestinians in Gaza as a protected group under the Genocide Convention, including by preventing, through any action, the delivery of urgently needed humanitarian assistance.

46. The Court further considers that the catastrophic situation in the Gaza Strip confirms the need for immediate and effective implementation of the measures indicated in its Order of 26 January 2024, which are applicable throughout the Gaza Strip, including in Rafah. In these circumstances, the Court finds it necessary to reaffirm the measures indicated in that Order.

47. In view of the specific provisional measures it has decided to indicate, the Court considers that Israel must 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. The report so provided shall then be communicated to South Africa, which shall be given the opportunity to submit to the Court its comments thereon.

48. The Court recalls that its orders on provisional measures under Article 41 of the Statute have binding effect and thus create international legal obligations for any party to whom the provisional measures are addressed (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. 230, para. 84).

49. The Court underlines that the present Order is without prejudice to any findings concerning the Respondent's compliance with the Order of 26 January 2024.

*

*   *

50. In its Order of 26 January 2024, the Court expressed its grave concern over the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and called for their immediate and unconditional release. The Court finds it deeply troubling that many of these hostages remain in captivity and reiterates its call for their immediate and unconditional release.

*

*   *

51. For these reasons,

The Court,

1. (1) By fourteen votes to two,

Reaffirms the provisional measures indicated in its Order of 26 January 2024;

in favour: President Salam; Judges Tomka, Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi;

against: Vice-President Sebutinde; Judge ad hoc Barak;

1. (2) Indicates the following provisional measures:

The State of Israel shall, in conformity with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in view of the worsening conditions of life faced by Palestinians in Gaza, in particular the spread of famine and starvation:

1. (a) Unanimously,

Take all necessary and effective measures to ensure, without delay, in full co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements, as well as medical supplies and medical care to Palestinians throughout Gaza, including by increasing the capacity and number of land crossing points and maintaining them open for as long as necessary;

1. (b) By fifteen votes to one,

Ensure with immediate effect that its military does not commit acts which constitute a violation of any of the rights of the Palestinians in Gaza as a protected group under the Convention on the Prevention and Punishment of the Crime of Genocide, including by preventing, through any action, the delivery of urgently needed humanitarian assistance;

in favour: President Salam; Vice-President Sebutinde; Judges Tomka, Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi;

against: Judge ad hoc Barak;

1. (3) By fifteen votes to one,

Decides that 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 Salam; Vice-President Sebutinde; Judges Tomka, Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi;

against: Judge ad hoc Barak.

Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this twenty-eighth day of March, two thousand and twenty-four, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of South Africa and the Government of the State of Israel, respectively.

(Signed)  Nawaf Salam,

President.

(Signed)  Philippe Gautier,

Registrar.

President Salam appends a declaration to the Order of the Court; Judge Yusuf appends a declaration to the Order of the Court; Judges Xue, Brant, Gómez Robledo and Tladi append a joint declaration to the Order of the Court; Judge Nolte appends a separate opinion to the Order of the Court; Judge Charlesworth appends a declaration to the Order of the Court; Judge ad hoc Barak appends a separate opinion to the Order of the Court.

(Initialled)  N.S.

(Initialled)  Ph.G.

I. The Court's general approach in South Africa v. Israel

5. South Africa brought a case before the Court on 29 December 2023 concerning the interpretation, application or fulfilment of the Genocide Convention. However, through successive requests for provisional measures, it has sought to create a second case concerning the conduct of hostilities under the guise of the Genocide Convention. The Court has regrettably allowed South Africa to do so by entertaining its requests for provisional measures beyond the confines of the Genocide Convention. The Court now finds itself entangled in an armed conflict, which presents two problems for the fulfilment of its judicial function.

6. The first problem is that regulating the conduct of hostilities falls outside the Court's jurisdiction, which is limited to the Genocide Convention. The Court does not have jurisdiction to deal with possible violations of international humanitarian law per se. Any measures indicated by the Court must be based on a plausible intent to commit genocide. If intent is not plausible, no measures can be ordered under the Genocide Convention. The Court's reasoning today is far removed from the Genocide Convention and based primarily on humanitarian considerations. The plausibility analysis has gone from thin to essentially non-existent, and the central question of intent has completely disappeared. In short, the Court has accepted South Africa's invitation to become the micromanager of an armed conflict and use the Genocide Convention as an excuse to rule on the basis of international humanitarian law. Managing an armed conflict under the Genocide Convention is a dangerous endeavour, especially when one of the belligerents is not a party to the Convention.

7. The second problem is that the Court is intervening in an armed conflict between Hamas and Israel, but only Israel is bound by its decisions. Hamas is not a party to these proceedings, and therefore the Court cannot direct orders at it. This creates a structural imbalance which is particularly acute in the case of provisional measures addressing the conduct of hostilities. The Court is confronted with the impossible task of squaring a circle. While the Court is powerless to change its Statute, it must take account of this imbalance in its reasoning. Unfortunately, it has failed to do so. The Court has failed to consider that the effective provision of humanitarian aid is not a one-way street; it requires the collaboration of other actors, including Hamas. In effect, part of today's Order shields Hamas while imposing interim obligations on Israel.

8. I am heartbroken by the humanitarian situation in Gaza. In January, I voted in favour of the measure concerning humanitarian aid. In my separate opinion I wrote:

I stand by every word.

9. There is little doubt that greater effort is needed to increase the delivery of aid. However, unlike the Security Council, the Court's powers are limited under the Genocide Convention. In today's Order, the Court has artificially linked the Genocide Convention to the provision and access of basic services and assistance, which are issues regulated by international humanitarian law. The thin line it walked in the Order of 26 January 2024 has now been crossed. The Court has not only failed to draw a strong link between the measures it has indicated and any plausible rights under the Genocide Convention, but has also disregarded that the other belligerent, Hamas, is not a party before the Court.

10. I worry about the turn that the Court is taking. Its approach to this case is steadily leaving the land of law and entering the land of politics. The ideas of a judge as a human being should not determine the opinions of a human being when he or she acts as a judge.

II. The shortcomings of the Court's Order

11. I will focus on three fatal flaws in the Order issued by the Court: (1) there is no “change in the situation” that justifies the modification of the Order of 26 January 2024; (2) the conditions for the indication of provisional measures are not met, in particular, because there is no intent and no link between the new measures indicated and any plausible rights under the Genocide Convention; (3) the Court has inadequately dealt with evidence.

III. The measures indicated by the Court

30. The first measure in operative paragraph (2) provides that Israel shall take measures to ensure the unhindered provision by all concerned of urgently needed basic services and humanitarian assistance. The Order also includes a non-exhaustive list of basic services and assistance, as well as particular measures that Israel shall take. I have voted in favour of this measure for the same reasons expressed in paragraph 44 of my separate opinion appended to the Order of 26 January 2024. I do not think this measure is grounded in the preservation of plausible rights under the Genocide Convention. However, it is consistent with Israel's obligations under international humanitarian law, if interpreted in light of Article 23 of the Fourth Geneva Convention and the applicable customary international law. It is only in this sense that I have supported it. I have been guided by moral reasons, hoping that it will alleviate the consequences of the armed conflict for the most vulnerable.

31. I feel compelled to recall, however, that the situation on the ground concerning the provision of humanitarian aid is more difficult than it appears. Israel is not the only responsible party. In most cases, Hamas quickly takes control of the aid when it enters Gaza or prevents it from being delivered to those who need it the most. In other instances, when the aid reaches civilians, it triggers mass movements of people and creates a high-risk environment for humanitarian workers. Even if one would want much more to be done for the delivery of aid, the process is not without complications. The power vacuum that is emerging in Gaza, particularly in the north, makes it more difficult to provide aid effectively. We have now seen efforts to deliver aid from the air, which Israel has supported, and the United States is considering the establishment of a floating port. Israel has agreed to help all of these initiatives. The main problems today are, inter alia, the unloading, storage and distribution of aid, and, most of all, securing all of these stages from acts of looting.

32. The second measure in operative paragraph (2) orders Israel to ensure that its military does not commit acts which violate the rights of the Palestinians in Gaza under the Genocide Convention, including by preventing, through any action, the delivery of urgently needed humanitarian assistance. I have voted against this measure for two reasons. First, because it is not grounded in the preservation of plausible rights under the Genocide Convention, since there is no indication of an intent to commit genocide. Second, because this measure deliberately builds an artificial link between Israel's obligations under the Genocide Convention and the obligation not to prevent the delivery of humanitarian assistance. A State that prevents the delivery of humanitarian assistance may violate international humanitarian law, but not the rights of a protected group under the Genocide Convention. In the past, the Court has carefully explained that the Genocide Convention should not be interpreted as incorporating rules of international law that are extrinsic to itFootnote ⁴.

33. I voted against the submission of a report because I am not persuaded that such reports are an effective tool for the Court given its current working methods.

IV. Concluding remarks

34. The war in Gaza is Israel's second war of independence. Israel's very existence was imperilled on 7 October 2023, and since that time, the daughters and sons of Israel have made the ultimate sacrifice to safeguard their nation's survival.

35. In one of my judgments as President of Israel's Supreme Court I wrote:

I am glad that the Court has decided not to tie both of Israel's hands behind its back, preserving its right to protect its people.

36. As judges, our approach is grounded in principles, operating within the confines of the law rather than outside it. The principle of the rule of law remains paramount. While there may be compelling ideas on how to end the fighting in Gaza, these belong to the realm of personal opinions, not judicial decisions.

37. I sincerely hope that this war comes to an end as quickly as possible, and that the hostages will return to Israel immediately. The key lies in the hands of Hamas. Hamas started the war and Hamas can finish it. It is time for the thunder of war to be replaced by the bells of peace.

(Signed)  Aharon BARAK.

I. General observations

20. In the view of the Court, South Africa's present Request is a request for the modification of the Order of 28 March 2024. For this reason, the Court must determine whether the conditions set forth in Article 76, paragraph 1, of the Rules of Court have been fulfilled. That paragraph reads as follows:

21. The Court must first ascertain whether, taking account of the information that the Parties have provided with respect to the current situation, there is reason to conclude that the situation that warranted the decision set out in its Order of 28 March 2024 has changed since that time. If the Court finds that there was a change in the situation since the delivery of its earlier Order, it will then have to consider whether such a change justifies a modification of its earlier decision concerning provisional measures. Any such modification would be appropriate only if the general conditions laid down in Article 41 of the Statute of the Court were also met in this instance (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Request for the Modification of the Order Indicating Provisional Measures of 7 December 2021, Order of 12 October 2022, I.C.J. Reports 2022 (II), p. 581, para. 12).

22. The Court will thus begin by determining whether there has been a change in the situation that warranted the decision set out in its Order of 28 March 2024.

*   *

23. South Africa states that its present Request is prompted by the ground incursion that Israel's military began on 7 May 2024 in Rafah, the “last refuge” in Gaza for 1.5 million Palestinians, the majority of whom had been forcibly displaced from northern and central Gaza, and the last viable centre in Gaza for habitation, public administration, and the provision of basic public services and medical care. South Africa contends that Israel has now seized control of both the Rafah crossing and the Kerem Shalom (Karem Abu Salem) crossing, thereby taking full and direct control over all entry and exit points for people and goods to and from Gaza, and that it has closed the former crossing and “mostly disabled” the latter. It alleges that medical facilities in Rafah are also in danger, as the main facility in the entire Rafah Governorate is no longer operational, while the functioning of others is severely impacted. South Africa argues that Israel has directed Palestinians in the eastern portion of Rafah to relocate to “the so-called Al-Mawasi ‘humanitarian area’ in the Khan Younis Governorate”, which is allegedly already overcrowded and lacking in safety, as well as in essential services. According to South Africa, a mass evacuation on this scale is “impossible to carry out safely”. The Applicant adds that, in any event, “there is nowhere for Palestinians in Rafah to go”, as approximately 76 per cent of the territory of Gaza is now under evacuation orders, and “an estimated two thirds of homes have been damaged or destroyed”.

24. In the Applicant's view, Israel's military incursion into Rafah, in light of the extreme risk it poses to humanitarian supplies and basic services in Gaza, to the Palestinian medical system and to the survival of Palestinians in Gaza as a group, “is not only an escalation of the prevailing situation, but gives rise to new facts that are causing irreparable harm to the rights of the Palestinian people in Gaza”. South Africa argues that “[t]his amounts to a change in the situation in Gaza since the Court's Order of 28 March 2024, within the meaning of Articles 75 (3) and 76 (2) of the Rules of the Court”.

*

25. Israel rejects South Africa's contention that there has been a change in the situation since the Court's Order of 28 March 2024. It claims that, “[w]hile many civilians have indeed evacuated to Rafah over the past few months, the fact remains that the city of Rafah also serves as a military stronghold for Hamas, which continues to pose a significant threat to the State of Israel and its citizens”. Israel refutes South Africa's allegations that it has closed critical border crossings in Gaza, or that it has failed to facilitate the provision of fuel for sustaining humanitarian operations and facilities. Israel emphasizes that, on the contrary, it has made continuous efforts to alleviate the humanitarian situation in the Gaza Strip, including by opening a new land crossing at Erez West on 12 May 2024, by facilitating the establishment of a floating pier off the Gaza coast, which became operational on 17 May 2024, and by supporting the “rehabilitation of hospitals” in and outside Rafah.

26. Israel contends that it “continues to take extraordinary measures in order to minimize harm to Palestinian civilians in Gaza”, in particular by informing civilians of planned operations by the Israeli Defense Forces in specific areas, by putting in place clear and definite targeting procedures so as to achieve the requisite military needs while minimizing civilian harm, by taking additional measures to ensure that the Israeli Defense Forces are aware of sensitive sites, such as medical services and shelters, and by ensuring that humanitarian aid continues to be delivered during the course of hostilities.

*   *

27. The Court recalls that, in its Order of 26 January 2024, it noted that the military operation conducted by Israel following the attack of 7 October 2023 had 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” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, para. 46). In its decision communicated to the Parties by letters of 16 February 2024, the Court noted, quoting the United Nations Secretary-General, that the developments in the Gaza Strip, and in Rafah in particular, “would exponentially increase what [wa]s already a humanitarian nightmare with untold regional consequences” (see paragraph 8 above). The Court further recalls that, in its Order of 28 March 2024, it observed with regret that the catastrophic living conditions of the Palestinians in the Gaza Strip had deteriorated further since January 2024, especially in view of the prolonged and widespread deprivation of food and other basic necessities to which the Palestinians in the Gaza Strip had been subjected (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Request for the Modification of the Order of 26 January 2024 Indicating Provisional Measures, Order of 28 March 2024, para. 18).

28. The Court notes that the catastrophic humanitarian situation in the Gaza Strip which, as stated in its Order of 26 January 2024, was at serious risk of deteriorating, has deteriorated, and has done so even further since the Court adopted its Order of 28 March 2024. In this regard, the Court observes that the concerns that it expressed in its decision communicated to the Parties on 16 February 2024 with respect to the developments in Rafah have materialized, and that the humanitarian situation is now to be characterized as disastrous. After weeks of intensification of military bombardments of Rafah, where more than a million Palestinians had fled as a result of Israeli evacuation orders covering more than three quarters of Gaza's entire territory, on 6 May 2024, nearly 100,000 Palestinians were ordered by Israel to evacuate the eastern portion of Rafah and relocate to the Al-Mawasi and Khan Younis areas ahead of a planned military offensive. The military ground offensive in Rafah, which Israel started on 7 May 2024, is still ongoing and has led to new evacuation orders. As a result, according to United Nations reports, nearly 800,000 people have been displaced from Rafah as at 18 May 2024.

29. The Court considers that the above-mentioned developments, which are exceptionally grave, in particular the military offensive in Rafah and the resulting repeated large-scale displacement of the already extremely vulnerable Palestinian population in the Gaza Strip, constitute a change in the situation within the meaning of Article 76 of the Rules of Court.

30. The Court is also of the view that the provisional measures indicated in its Order of 28 March 2024, as well as those reaffirmed therein, do not fully address the consequences arising from the change in the situation explained above, thus justifying the modification of these measures. However, in order to modify its earlier decision concerning provisional measures, the Court must still satisfy itself that the general conditions laid down in Article 41 of the Statute of the Court are met in the current situation.

II. Conditions for the indication of provisional measures

31. The Court recalls that, in its Order of 26 January 2024 indicating provisional measures in the present case, it concluded that “prima facie, it ha[d] jurisdiction pursuant to Article IX of the Genocide Convention to entertain the case” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, para. 31). In its Order of 28 March 2024 concerning South Africa's Request of 6 March 2024 for the modification of the Order of 26 January 2024, the Court stated that it saw no reason to revisit that conclusion (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Request for the Modification of the Order of 26 January 2024 Indicating Provisional Measures, Order of 28 March 2024, para. 24). The Court likewise sees no reason to do so for the purposes of deciding on the present Request.

32. In the Order of 26 January 2024, the Court also found that at least some of the rights claimed by South Africa under the Genocide Convention and for which it was seeking protection were plausible, 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 that Convention (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, para. 54). The Court saw no reason to revisit this conclusion in its Order of 28 March 2024 (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Request for the Modification of the Order of 26 January 2024 Indicating Provisional Measures, Order of 28 March 2024, para. 25). The Court likewise sees no reason to do so for the purposes of deciding on the present Request. It further considers that, by their very nature, at least some of the provisional measures sought pursuant to the present Request (see paragraph 17 above) are aimed at preserving the rights claimed by the Applicant that the Court has found to be plausible.

33. The Court must now consider whether the current situation entails a risk of irreparable prejudice to the plausible rights claimed by South Africa and whether there is urgency.

34. The Court recalls in this regard that it has previously concluded that, in view of the fundamental values sought to be protected by the Genocide Convention, the plausible rights in question in these proceedings are of such a nature that prejudice to them is capable of causing irreparable harm (see Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, para. 66; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Request for the Modification of the Order of 26 January 2024 Indicating Provisional Measures, Order of 28 March 2024, para. 27).

*   *

35. The Applicant states that the situation in Gaza “could not be more urgent” and therefore demands the indication of further or modified provisional measures. South Africa refers, in particular, to the widespread risk of violent death and injury faced by the displaced Palestinian population, as well as to the increased restrictions on the provision of humanitarian assistance and the deprivation of access to healthcare that will ensue if hospitals in Rafah are rendered inoperable.

36. The Applicant contends that there has already been “a total collapse of infrastructure, of sanitation, of water, of food supply: in short, the conditions necessary to sustain life for the 2.3 million Palestinians in Gaza”. According to South Africa, “[t]he level of destruction that Israel has caused across Gaza and is now wreaking on Rafah threatens the very survival of future Palestinian generations in Gaza”.

37. South Africa further contends that the very manner in which Israel is pursuing its military operations in Rafah, as well as elsewhere in Gaza, is itself genocidal. Thus, according to South Africa, an “explicit order that Israel ‘cease its military activities’” is required to “protect what is left of Palestinian life in Gaza”. South Africa emphasizes that there are no evacuation zones in Gaza where humanitarian aid and assistance are provided. It contends, in particular, that Al-Mawasi cannot be considered as a humanitarian zone for Palestinians instructed to evacuate from Rafah because it is

According to South Africa, Israel “had no plan in place to accommodate the hundreds of thousands of Palestinians ordered to flee Rafah and other areas in early May 2024 — just like it had no plan to accommodate those forced to flee as a result of previous evacuation orders”.

38. The Applicant finally states that Israel's “complete refusal to allow independent investigators” in Gaza entails a risk that the true number of Palestinian casualties will remain unknown and that evidence will be obliterated as a result of Israel's ongoing military operation. In South Africa's view, this justifies the imposition of a measure requiring Israel to grant unimpeded access to Gaza to “persons able to investigate ongoing atrocities”, particularly in light of the recent discovery of multiple mass graves at Nasser Hospital in Khan Younis and at Al Shifa Hospital in Gaza City with bodies “reportedly showing signs of torture and summary executions”.

*

39. Israel maintains that the allegations against it are “patently untrue” and that many of South Africa's assertions lack any basis in fact or law. The Respondent argues that the provisional measures indicated by the Court that are currently in place are entirely sufficient and claims that South Africa has not established that the “extreme measures” that it now seeks are justified.

40. Israel contends that there has not been “a large-scale assault” on Rafah, but rather that specific, limited and localized operations have been undertaken, prefaced by incremental and localized evacuations and support for humanitarian activities. It states that, as part of its efforts to facilitate the evacuation of civilians from parts of the Rafah region where intense hostilities were expected, “a humanitarian area was initially delineated by Israel in the Al-Mawasi area” located outside the theatre of planned hostilities. Israel states that this area was “expanded very significantly” since the beginning of the military offensive.

41. According to the Respondent, the Israeli Defense Forces implement “[r]estricted fire areas” and “tactical pauses in fighting along evacuation routes” to enhance the security of the Palestinians evacuating. Israel further states that two main routes can reach this “humanitarian area”, making it possible to deliver aid, including from the floating pier off the Gaza coast operational since 17 May 2024. It also alleges that it actively facilitates the provision of food, water and shelter, and that six of the eight field hospitals in Gaza are located in that area. Israel submits that it has purchased 40,000 tents capable of sheltering 320,000 people in the humanitarian area and that 7,000 of those tents have entered Gaza. According to Israel's assessment, approximately 800,000 civilians have evacuated the Rafah area to date, whether as a result of sectoral warnings issued by the Israeli Defense Forces or on their own initiative.

42. In Israel's view, an Order by the Court requesting the cessation of hostilities by Israel “would mean that 132 hostages would remain to languish in Hamas’ tunnels forsaken . . . [and that] Hamas would be left unhindered and free to continue its attacks against Israeli territory and Israeli civilians”. Israel also states that its military action in Rafah has the purpose of protecting its civilians and rescuing the Israeli hostages still held by Hamas and other armed groups. The Respondent further states that it has in place the necessary mechanisms to examine and investigate allegations of wrongdoing by its military forces and to ensure accountability.

*   *

43. The Court recalls that, on 7 May 2024, Israel began a military offensive in Rafah, following weeks of intensified bombardment, and that, as a result, approximately 800,000 Palestinians were displaced from Rafah as at 18 May 2024 (see paragraph 28 above).

44. The Court notes that senior United Nations officials have consistently underscored the immense risks associated with a military offensive in Rafah. For instance, on 3 May 2024, the Spokesperson of the Office for the Coordination of Humanitarian Affairs (OCHA) warned that an assault on Rafah would put “hundreds of thousands of people . . . at imminent risk of death” and would severely impact the humanitarian operation in the entire Gaza Strip, which is run primarily out of Rafah (OCHA, “Hostilities in the Gaza Strip and Israel — Flash Update #162”, 6 May 2024). On 6 May 2024, the United Nations Children's Fund (UNICEF) indicated that about half of the approximately 1.2 million Palestinians sheltering in Rafah were children, and warned that military operations therein would result in “the few remaining basic services and infrastructure they need to survive being totally destroyed” (UNICEF, “UNICEF warns: There is ‘nowhere safe to go’ for the 600,000 children of Rafah”, press release, 6 May 2024).

45. United Nations sources indicate that the above-mentioned risks have started to materialize and will intensify even further if the operation continues. For instance, on 8 May 2024, the Director- General of the World Health Organization stated that the Al Najjar Hospital, one of the last remaining medical facilities in the Rafah Governorate, was no longer functional due to the ongoing hostilities in its vicinity. On 17 May 2024, the World Food Programme (WFP) warned that it had been unable to access its warehouse in Rafah for over a week and observed that “[t]he incursion into Rafah is a significant setback to recent modest progress on access” (WFP, “Gaza updates: WFP responds to hunger crisis as Rafah incursion cuts access to warehouse”, press release, 17 May 2024).

46. On the basis of the information before it, the Court is not convinced that the evacuation efforts and related measures that Israel affirms to have undertaken to enhance the security of civilians in the Gaza Strip, and in particular those recently displaced from the Rafah Governorate, are sufficient to alleviate the immense risk to which the Palestinian population is exposed as a result of the military offensive in Rafah. The Court observes, for instance, that according to a statement by the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), Mr Philippe Lazzarini, on 18 May 2024,

The Court observes that Israel has not provided sufficient information concerning the safety of the population during the evacuation process, or the availability in the Al-Mawasi area of the necessary amount of water, sanitation, food, medicine and shelter for the 800,000 Palestinians that have evacuated thus far. Consequently, the Court is of the view that Israel has not sufficiently addressed and dispelled the concerns raised by its military offensive in Rafah.

47. In light of the considerations set out above, and taking account of the provisional measures indicated in its Orders of 26 January 2024 and 28 March 2024, the Court finds that the current situation arising from Israel's military offensive in Rafah entails a further risk of irreparable prejudice to the plausible rights claimed by South Africa and that there is urgency, in the sense that there exists a real and imminent risk that such prejudice will be caused before the Court gives its final decision.

III. Conclusion and measures to be adopted

48. The Court concludes, on the basis of the above considerations, that the circumstances of the case require it to modify its decision set out in its Order of 28 March 2024.

49. The Court recalls that, in accordance with Article 75, paragraph 2, of its Rules, when a request for the indication of provisional measures has been made, it has the power under its Statute to indicate measures that are, in whole or in part, other than those requested. In the present case, having considered the terms of the provisional measures requested by South Africa and the circumstances of the case, the Court finds that the measures to be indicated need not be identical to those requested.

50. The Court considers that, in conformity with its obligations under the Genocide Convention, Israel must immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.

51. The Court recalls that, in its Order of 26 January 2024, it ordered Israel, inter alia, to “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 Genocide Convention]” (see paragraph 5 above). In the present circumstances, the Court is also of the view that, in order to preserve evidence related to allegations of acts falling within the scope of Article II and Article III of the Genocide Convention, Israel must take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide.

52. The Court also considers that the catastrophic situation in Gaza confirms the need for the immediate and effective implementation of the measures indicated in its Orders of 26 January 2024 and 28 March 2024, which are applicable throughout the Gaza Strip, including in Rafah. In these circumstances, the Court finds it necessary to reaffirm the measures indicated in those Orders. In so doing, the Court wishes to emphasize that the measure indicated in paragraph 51 (2) (a) of its Order of 28 March 2024, requiring the “unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance”, necessitates that the Respondent maintain open land crossing points, and in particular the Rafah crossing.

53. In view of the specific provisional measures it has decided to indicate, the Court considers that Israel must 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. The report so provided will then be communicated to South Africa, which shall be given the opportunity to submit to the Court its comments thereon.

54. The Court recalls that its orders on provisional measures under Article 41 of the Statute have binding effect and thus create international legal obligations for any party to whom the provisional measures are addressed (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Provisional Measures, Order of 22 February 2023, I.C.J. Reports 2023, p. 29, para. 65).

55. The Court underlines that the present Order is without prejudice to any findings concerning the Respondent's compliance with the Orders of 26 January 2024 and 28 March 2024.

*

*   *

56. In its Orders of 26 January 2024 and 28 March 2024, the Court expressed its grave concern over the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and called for their immediate and unconditional release. The Court finds it deeply troubling that many of these hostages remain in captivity and reiterates its call for their immediate and unconditional release.

*

*   *

57. For these reasons, The Court,

1. (1) By thirteen votes to two,

Reaffirms the provisional measures indicated in its Orders of 26 January 2024 and 28 March 2024, which should be immediately and effectively implemented;

in favour: President Salam; Judges Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi;

against: Vice-President Sebutinde; Judge ad hoc Barak;

1. (2) Indicates the following provisional measures:

The State of Israel shall, in conformity with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in view of the worsening conditions of life faced by civilians in the Rafah Governorate:

1. (a) By thirteen votes to two,

Immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part;

in favour: President Salam; Judges Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi;

against: Vice-President Sebutinde; Judge ad hoc Barak;

1. (b) By thirteen votes to two,

Maintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance;

in favour: President Salam; Judges Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi;

against: Vice-President Sebutinde; Judge ad hoc Barak;

1. (c) By thirteen votes to two,

Take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide;

in favour: President Salam; Judges Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi;

against: Vice-President Sebutinde; Judge ad hoc Barak;

1. (3) By thirteen votes to two,

Decides that 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 Salam; Judges Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi;

against: Vice-President Sebutinde; Judge ad hoc Barak.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-fourth day of May, two thousand and twenty-four, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of South Africa and the Government of the State of Israel, respectively.

(Signed)  Nawaf Salam,

President.

(Signed)  Philippe Gautier,

Registrar.

Vice-President Sebutinde appends a dissenting opinion to the Order of the Court; Judges Nolte, Aurescu and Tladi append declarations to the Order of the Court; Judge ad hoc Barak appends a dissenting opinion to the Order of the Court.

(Initialled)  N.S.

(Initialled)  Ph.G.

I. Introduction

1. I have voted against the Order because I firmly believe that the provisional measures previously indicated and reaffirmed by the Court adequately address the current situation in the Gaza Strip, including Rafah. Israel's ongoing military operations in Rafah are part of the broader conflict initiated by Hamas on 7 October 2023, when Hamas attacked Israeli territory, killing citizens and abducting others. To protect Palestinian civilians in the Gaza Strip caught in this conflict, the Court has at South Africa's request and in accordance with the Applicant's rights under the Genocide Convention, indicated several binding and effective provisional measures. Therefore, despite the frequent changes in the location and intensity of hostilities, the situation in Rafah does not constitute a “new fact” that would necessitate modifying the existing measures under Article 76, paragraph (1) of the Rules of Court. This forms the basis of my dissent from the majority. To maintain its judicial integrity, the Court must avoid reacting to every shift in the conflict and refrain from micromanaging the hostilities in the Gaza Strip, including Rafah. South Africa's current request inviting the Court to indicate new provisional measures or to modify the existing ones, marks the fourth within the past few months.

2. Once again, South Africa has invited the Court to micromanage the conduct of hostilities between Israel and Hamas. Such hostilities are exclusively governed by the laws of war (international humanitarian law) and international human rights law, areas where the Court lacks jurisdiction in this case. Regrettably, the wording of the Court's directive in operative clause 57, paragraph (2) (a), ordering Israel to “halt its military offensive . . . in the Rafah Governorate”, is susceptible to ambiguity and could be misunderstood or misconstrued as ordering an indefinite, unilateral ceasefire, thereby exemplifying an untenable overreach on the part of the Court. In my understanding, the objective of the Court is to order Israel to suspend its military offensive in Rafah only in so far as such suspension is necessary to prevent the bringing about of conditions of life that could bring about the destruction of the Palestinians in Gaza. In my view, a suspension of Israel's military offensive in Rafah, whether temporary or indefinite, has no link to South Africa's plausible rights or Israel's obligations under the Genocide Convention, as required by Article 41 of the Statute of the Court and its associated jurisprudence. This directive, which could be erroneously misunderstood as mandating a unilateral ceasefire in part of Gaza, amounts to micromanaging the hostilities in Gaza by restricting Israel's ability to pursue its legitimate military objectives, while leaving its enemies, including Hamas, free to attack without Israel being able to respond. This measure also implicitly orders Israel to disregard the safety and security of the over 100 hostages still held by Hamas, a terrorist organization that has refused to release them unconditionally.

3. I firmly believe that Israel has the right to defend itself against its enemies, including Hamas, and to continue efforts to rescue its missing hostages. These rights are not incompatible with its obligations under the Genocide Convention. Israel can continue pursuing its legitimate aims of combating Hamas and rescuing its hostages, provided it respects its obligations under the Genocide Convention and the provisional measures indicated by the Court. In this dissenting opinion, I highlight the broader context of the war in Gaza, which context was, in my view, not fully or accurately reflected in the present Order. I also examine in a more balanced way, the ongoing humanitarian situation in the Gaza Strip, including Israel's efforts at mitigating civilian casualties, since the Court's last Order on 28 March 2024. Lastly, I provide my reasons for rejecting the provisional measures indicated by the Court in the current Order.

II. The broader context of the war in the Gaza Strip

4. As stated above, South Africa has submitted its fourth request for the indication of provisional measures in as many months (on 29 December 2023; 12 February 2024; 6 March 2024 and 10 May 2024). Significant developments have occurred in Israel and the Gaza Strip since the Court's last Order on 28 March 2024. When considering whether new facts have emerged that justify modifying the existing provisional measures under Article 76, paragraph (1) of the Rules of Court, it is essential to view the ongoing conflict between Israel and Hamas in Rafah within its full context. Since 7 October 2023, Israel has been engaged in armed conflict on multiple fronts, facing attacks from various actors and directions. Hamas continues to launch attacks from Gaza, including Rafah, and still holds over 100 Israeli hostages despite calls from this Court, the United Nations Security Council, and the international community for their unconditional release. Several States believe that the release of these hostages would significantly help end the conflict in GazaFootnote ¹.

5. According to Israel, more than 10,000 rockets have been fired from Gaza into Israel since the hostilities beganFootnote ², including over a thousand recently from Rafah, even from the vicinity of the Rafah crossing. A rocket launched from Rafah recently landed in a children's playgroundFootnote ³. Israel reports that Rafah hosts several Hamas battalions and numerous tunnels used by Hamas fightersFootnote ⁴. South Africa has not disputed these facts. An Israeli operation in February 2024 resulted in the rescue of two hostages, and more recently, the bodies of three more hostages killed in captivity were recovered from Rafah. It is plausible that additional hostages in captivity remain in the area, which is why Israel has declared its intention to locate and return them, dead or alive, to their families. This is a right that the Court cannot deny Israel or the hostages.

6. Apart from Hamas, other armed groups in the Gaza Strip and the West Bank continue to pose threats to Israeli soldiers and civilians. These groups include Palestinian Islamic Jihad and the Al-Aqsa Martyrs Brigades, both of which regularly engage in violent attacks against Israeli soldiers and civilians. In addition, Israel is involved in a large-scale conflict in its north against Hezbollah, another armed group based in Lebanon. Hezbollah frequently launches rockets, missiles, and drones directed at Israeli targets, including civilian areas in northern Israel, using advanced weaponry such as guided missiles and missile-firing dronesFootnote ⁵. Hezbollah's leader has praised Hamas's actions, including the 7 October 2023 attack, and has expressed solidarity with Hamas, openly calling for the annihilation of Israel.

7. Since the 28 March 2024 Order of the Court, Israel has also faced attacks from further afield. The Houthis, another armed group based in Yemen and backed by Iran, have targeted civilian shipping in the Red Sea believed to be connected to Israel, and launched long-range ballistic missiles and drones at Israeli cities, despite international condemnation and efforts to de-escalate the situationFootnote ⁶. The Houthis have also expressed solidarity with Hamas and openly called for the destruction of Israel. On 13 April 2024, Iran launched a large-scale attack on Israel involving more than 200 drones, cruise missiles, and ballistic missiles aimed at Israeli territoryFootnote ⁷. While South Africa does not dispute these facts, the Court's present Order omits these developments, which are crucial to understanding Israel's continued military operations in the Gaza Strip, including Rafah.

8. These threats collectively pose a significant risk to the safety, security, and welfare of Israel and its citizens. While the international community is rightfully concerned about the safety and security of the displaced Palestinian civilians in Gaza, it is equally important to recognize that Israel's ongoing conflict with Hamas and Hezbollah has resulted in the displacement of 60,000 Israelis from their homes in southern IsraelFootnote ⁸ and another 60,000 in northern IsraelFootnote ⁹. Israel has the right to respond to these existential threats, which are interconnected and coordinated. In doing so, Israel is expected to comply with international obligations, including under international humanitarian law. However, neither international law in general nor the Genocide Convention in particular deprive Israel of the right to take necessary and proportionate actions to defend its citizens and territory against such armed attacks on multiple fronts. Had the Court taken this broader context into consideration when evaluating South Africa's fourth request for provisional measures, it might have arrived at a more balanced result that leaves unimpeded Israel's right to defend itself and its citizens against its enemies and that avoids the untenable overreach demonstrated in some of the measures indicated.

III. The humanitarian situation in the Gaza Strip

9. The reality of the humanitarian situation in Gaza is far more complex than South Africa suggests in its fourth Request. While the war in Gaza has undoubtedly had devastating humanitarian consequences on innocent civilians, the responsibility for the suffering of the Palestinians of Gaza does not lie only with Israel and nor is it correct to say that Israel has failed to act to alleviate that suffering. Israel has consistently maintained that as a fighting tactic, members of Hamas embed themselves amongst the civilian population often making it difficult for Israeli forces to distinguish between innocent civilians and legitimate military combatants. Citing a deterioration in the humanitarian situation in the Gaza Strip and in Rafah in particular, South Africa asserts that there has been a change in the situation since the Court's March 2024 Order necessitating the indication of additional measuresFootnote ¹⁰. However, the evidence actually shows a gradual improvement in the humanitarian situation in Gaza since the Court's Order, reflecting efforts by Israel to comply with the Order. Within a week of the Court's March Order, the Israeli Security Cabinet met and made a formal decision to continue and increase efforts to facilitate the provision of humanitarian aid for the civilian population of GazaFootnote ¹¹. The Israeli government allocated approximately US$52 million to this effortFootnote ¹².

10. Furthermore, multiple concrete actions were taken by Israel to facilitate the provision of humanitarian aid for the civilian population of Gaza since the March Order of the Court. This includes the opening of three additional land crossings. A new land route between Israel and northern Gaza at Gate 96 was established in March 2024 and has been operating sinceFootnote ¹³. The East Erez crossing, which was attacked and destroyed by Hamas on 7 October 2023, was reopened on 1 May 2024Footnote ¹⁴. Most recently, the West Erez crossing was opened on 1 May 2024Footnote ¹⁵. These three crossings operate in conjunction with the Kerem Shalom crossing, which remains operational after it was forced to pause operations from 5 to 8 May 2024 following a Hamas rocket attack on the crossingFootnote ¹⁶. Although the Rafah crossing is currently closed, Israel has asserted, without contradiction, that efforts are underway to reopen the crossing, including discussions with Egypt and other relevant actorsFootnote ¹⁷. In addition to the opening of new crossings, there is evidence that Israel has expanded the capacity of the existing Kerem Shalom crossing, extended its opening hours and improved the movement of trucks delivering aid through the crossingFootnote ¹⁸. Efforts also appear to have been made to expand the number of trucks bound for Gaza that are able to enter Israel from JordanFootnote ¹⁹ and to extend the opening hours at the Nitzana crossing with EgyptFootnote ²⁰.

11. Israel has also facilitated the opening of new sea routes into Gaza. Israel and Cyprus have agreed on the establishment of a maritime corridor to allow for the direct delivery of aid to Gaza. Shipments of humanitarian aid took place using this corridor in March and April 2024Footnote ²¹. Furthermore, a floating pier off the Gaza coast constructed with the assistance of the United States Government began operation on 17 May 2024 and is expected to allow for the delivery of up to 150 truckloads of aid a day, once fully operationalFootnote ²². Airdrops to Gaza have also continued since the Court's 28 March Order and have been co-ordinated by IsraelFootnote ²³.

12. The above efforts have resulted in a tangible improvement in the amount of aid entering Gaza. Figures from the Israeli Government show a steady increase in the number of trucks of humanitarian aid entering Gaza since the Court's March 2024 OrderFootnote ²⁴. Media reports show that the number of truckloads entering the territory reached a peak for the entire conflict in early MayFootnote ²⁵. Figures from OCHA — which only account for aid from the Rafah and Kerem Shalom crossings and do not include aid entering from other crossings or routes — also show an increase in the number of truckloads since the March OrderFootnote ²⁶. Although there appears to have been a significant slowdown in aid entering southern Gaza as a result of the closure of the Rafah crossing and temporary closure of the Kerem Shalom crossing, recent reports indicate that large-scale aid transfers have resumed through the Kerem Shalom crossingFootnote ²⁷. As a result of these increased efforts, thousands of food trucks have entered Gaza; multiple large bakeries have reopened; greater amounts of animal fodder have been able to enter the Strip; water pipelines have been repaired and water pumps supplied with fuel; millions of litres of fuel have been able to enter Gaza; and clothing, hygiene and sanitation supplies have been supplied to Gazan civiliansFootnote ²⁸.

13. This improvement in the supply of aid has been recognised by third parties. The UN Senior Humanitarian and Reconstruction Coordinator for Gaza, Ms Sigrid Kaag, has noted the steps taken by Israel to improve aid delivery since 5 April 2024 and has stated that she considers there to have been “very constructive co-operation with her mission” by Israeli authorities, including the Israeli War CabinetFootnote ²⁹. Third States, including the United States, United Kingdom and Germany have also acknowledged improvements in the delivery of humanitarian assistanceFootnote ³⁰.

14. In addition to taking action to increase the amount of aid entering Gaza, Israel has taken action intended to improve access to medical care in the Strip. The ongoing fighting has naturally made it substantially more difficult to provide adequate medical care. Israel has acted since the Court's March Order to remedy this situation. This includes efforts to facilitate the entry of medical supplies and the construction of field hospitals and mobile clinicsFootnote ³¹. Israel noted before the Court that eight field hospitals are now operating in Gaza, with another due to open this month and the establishment of further hospitals being consideredFootnote ³². There is also evidence that Israel has evacuated thousands of Gazans for treatment abroad, facilitated the arrival of additional ambulances into Gaza and has continued to supply hospitals even in the midst of active fightingFootnote ³³.

15. Finally, Israel has throughout the conflict warned Palestinians in Gaza of upcoming operations and has repeatedly requested the evacuation of civilians from areas of active fightingFootnote ³⁴. Such actions are inconsistent with the intent to destroy the group in question. Israel has also acted to make infrastructure available at shelter sites and has facilitated the supply of shelter equipment into GazaFootnote ³⁵.

16. To be sure, the efforts taken by Israel thus far have not entirely alleviated the ongoing humanitarian crisis in the Gaza Strip. War inevitably, and tragically, affects the lives of civilians. But this does not make Israel's war against Hamas inherently illegitimate or unlawful and nor does it transform it into an act of genocide. Furthermore, Israel is not the only party responsible for the humanitarian situation in Gaza. Indeed, Israel does not currently govern or exercise full control over the Gaza Strip and a majority of Israeli troops appear to have left the territory in April 2024Footnote ³⁶. In this regard, South Africa's Request is to some extent paradoxical in that South Africa requests the withdrawal of Israel from Gaza yet also expects Israel to act on the ground to ensure the effective delivery of aid in the territory.

17. Hamas bears at least partial responsibility for the welfare of Palestinians in Gaza. It remains in control of much of civil life there and aid organizations are reportedly required to coordinate their efforts with the Hamas civil authoritiesFootnote ³⁷. Hamas’ conduct has also impeded the effective delivery of aid. Hamas has launched rocket attacks at aid crossings and at the construction site of Gaza's floating pierFootnote ³⁸. There is also evidence that Hamas has seized aid for its own useFootnote ³⁹.

18. Another actor that plays a key role in facilitating aid delivery is Egypt, which shares a border with Gaza and controls part of both the Rafah and Kerem Shalom crossing facilities. As Israel has noted, efforts to reopen the Rafah crossing require Egyptian co-operationFootnote ⁴⁰. There have also been reports that Egypt has prevented the movement of aid trucks from Egypt towards Kerem ShalomFootnote ⁴¹.

19. Finally, logistical constraints may sometimes operate to prevent the effective delivery of aid by third parties, including international and non-governmental organizationsFootnote ⁴². For example, the United States has noted that a lack of available trucks has prevented the United Nations from distributing aid that has been delivered into GazaFootnote ⁴³.

IV. The provisional measures indicated by the Court

V. Issues of procedure

28. Finally, I find it necessary to note my serious concerns regarding the manner in which South Africa's Request and incidental oral hearings were managed by the Court, resulting in Israel not having sufficient time to file its written observations on the request. In my view, the Court should have consented to Israel's request to postpone the oral hearings to the following week to allow for Israel to have sufficient time to fully respond to South Africa's Request and engage counsel. Regrettably, as a result of the exceptionally abbreviated time-frame for the hearings, Israel could not be represented by its chosen Counsel, who were unavailable on the dates scheduled by the Court. It is also regrettable that Israel was required to respond to a question posed by a Member of the Court over the Jewish Sabbath. The Court's decisions in this respect bear upon the procedural equality between the Parties and the good administration of justice by the Court.

(Signed) Julia Sebutinde.

Conditions for the modification of provisional measures

4. Article 76, paragraph 1, of the Rules of Court provides that “the Court may . . . modify any decision concerning provisional measures if, in its opinion, some change in the situation justifies such . . . modification”.

5. For the Court to modify provisional measures pursuant to Article 76, paragraph 1, three conditions must be metFootnote ⁶. First, the Court must ascertain whether “the situation that warranted the indication of certain provisional measures . . . has changed since that time”Footnote ⁷. Secondly, it must consider whether the “the provisional measures indicated . . . do not fully address the consequences arising from the changes in the situation”Footnote ⁸ and thus justify a modification. Finally, the Court “must . . . satisfy itself that the general conditions laid down in Article 41 of the Statute of the Court are met in the current situation”Footnote ⁹.

6. As to the first condition, it is not obvious that the current military offensive in Rafah constitutes “some change in the situation” not previously considered. Indeed, the Court has already referred to the deteriorating situation in Rafah in its letter to the Parties of 16 February 2024Footnote ¹⁰ and in its Order of 28 March 2024Footnote ¹¹. In particular, in its letter of 16 February, the Court assessed the risk resulting from military activity in Rafah at a time when a very large number of internally displaced Palestinians were already present in Rafah and when there also appeared to be no other safe areas to go toFootnote ¹². Thus, as horrifying as the situation is and remains, it was essentially the same situation with which the Court was confronted when it was seised of similar requests in January, February and March. One may therefore doubt whether there is indeed “some change in the situation”, in the sense of Article 76, paragraph 1, of the Rules of Court.

7. It is equally doubtful that the second condition is met. When the Court considered the situation in Rafah in February and March 2024, it estimated that the measures it had indicated on 26 January 2024 were sufficient to address the possibility of a military operation by the Israeli armed forces in RafahFootnote ¹³.

8. I remain of the view that the Court should not set “problematic precedent[s]” that “would consist in signaling to the parties in this and other cases that the Court considers that the threshold for modifying, adding or specifying a provisional measure is low”Footnote ¹⁴. The Court should also avoid the risk of prejudicing a finding on the merits that an order has been violated. Moreover, the “purpose of a modification of provisional measures is not normally the implementation of provisional measures already indicated”Footnote ¹⁵.

9. This latter concern manifestly arises in the present case. South Africa has openly stated that it expects the Court to act in order to render its own previous Orders “effective”, to prevent them from becoming “worthless” and to step in for the United Nations Security Council and General Assembly, which, according to South Africa, are not fulfilling their mandate in the present caseFootnote ¹⁶.

10. The Security Council of the United Nations has the “primary responsibility for the maintenance of international peace and security” (Article 24, paragraph 1, of the United Nations Charter). It is the Security Council that shall “decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security” (Article 39 of the United Nations Charter), and thus to prevent the violation of related rules of international law, including those arising from the Genocide Convention.

11. This does not mean that the responsibility of the Security Council is exclusiveFootnote ¹⁷. As the “principal judicial organ of the United Nations” (Article 92 of the United Nations Charter), the Court is tasked with contributing to the maintenance of international peace and security through the judicial settlement of legal disputes (Article 33, paragraph 1, of the United Nations Charter). However, “[t]he Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions”Footnote ¹⁸. The Security Council and the Court “therefore perform their separate but complementary functions with respect to the same events”Footnote ¹⁹. In the present case, the Court's jurisdiction is limited to the Genocide Convention. In contrast to the Security Council, it is not tasked with the monitoring or enforcement of the Genocide Convention, but only with the settlement of disputes over the “interpretation, application or fulfilment” of that ConventionFootnote ²⁰. Its incidental jurisdiction under Article 41 of the Statute does not transform the Court into a monitoring body or even an enforcement organ.

Specification of the Court's previous Orders in the present case

12. Does this mean that the Court could not, or should not, have rendered the present Order? Article 76, paragraph 1, does not explicitly address the question whether the Court may indicate new measures when it anticipated a certain contingency in the abstract in its original order, but when specific subsequent circumstances raise questions as to how the original measure should be interpreted.

13. Article 76, paragraph 1, of the Rules of Court is not formulated in strict terms. The Court may modify an order “if, in its opinion [emphasis added], some change in the situation justifies such revocation or modification”. With this self-imposed ruleFootnote ²¹, the Court has given itself a guideline rather than a strict limitation on the exercise of its power under Article 41 of its Statute. In any event, Article 76, paragraph 1, of the Rules of Court cannot be read as limiting the Court's power under Article 41 of its Statute. The Court is inherently competent under this provision to interpret, and thus to specify (or clarify), the measures it has previously indicated to ensure the sound administration of justiceFootnote ²².

14. Every specification (clarification) requires a modification of the terms of the original order, even if its substance remains the same. The Court's power to interpret and thus to specify the terms suggests that “some change in the situation” may also consist of subsequent developments which the Court had generally anticipated as a possibility, but with respect to which significant uncertainties arise as to how the previous order applies to them.

15. Of course, the possibility that new developments may give rise to more specific provisional measures risks encouraging parties to come back to the Court unnecessarily, for political purposes. While the Court should remain vigilant not to allow much room for repeated requests of this kind, I now recognize that it cannot be excluded that there may be situations in which, “in its opinion”, a specification of a previous order is exceptionally warrantedFootnote ²³.

16. In the present case, I agree that the extraordinarily dramatic humanitarian situation in and around Rafah, resulting from the Israeli military offensive which started on 7 May 2024, and the lack of clarity concerning what Israel calls “designated humanitarian areas” justify a specification of the existing measures of 26 January and 28 March 2024, according to which

and

In my view, the first measure indicated today specifies these previous measures by stating that “The State of Israel shall . . . [i]mmediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in

Gaza conditions of life that could bring about its physical destruction in whole or in part”.

17. To arrive at this specification, it is not necessary to find that it is plausible that the current military offensive in Rafah, or the military operation in the Gaza Strip more generally, as such is being pursued with genocidal intent. Indeed, I remain unconvinced that the evidence presented to the Court provides plausible indications that the military operation undertaken by Israel as such is being pursued with genocidal intentFootnote ²⁶

18. The reason for today's measure is, in my view, that Israel has not sufficiently demonstrated that it can “enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians” without limiting its current military offensive in Rafah (see, in particular, paragraph 46 of the Order).

19. To find that Israel's “obligation to prevent, and the corresponding duty to act”Footnote ²⁷, plausibly exist, it is not necessary to find that Israel has violated its obligations under the Genocide Convention. For the obligation of prevention under the Genocide Convention to arise, a serious risk of conduct falling within the scope of Article III of the Genocide Convention and the knowledge of a State of such a risk is sufficientFootnote ²⁸. At the present stage of provisional measures, it is sufficient that a risk of conduct falling within the scope of Article III of the Genocide Convention and the knowledge of Israel of such a risk is plausible.

20. Based on the information before the Court, I consider that this is the case for three reasons.

First, the situation in the areas to which Palestinians are fleeing remains highly precarious. I recognize that Israel has submitted a response to the question put to it regarding the conditions prevailing in the designated humanitarian areas, in which it has demonstrated substantial efforts to mitigate the humanitarian situation resulting from its military offensive in RafahFootnote ²⁹. However, even by Israel's own account, the dwellings, including tents, available and set up in the designated humanitarian areas are clearly insufficient for sheltering the hundreds of thousands of Palestinians who have been called by Israel to leave Rafah or who have been prompted by the current military offensive to fleeFootnote ³⁰. I take seriously Israel's assertion that the people arriving in the designated humanitarian areas, including in Al-Mawasi, have sufficient water at their disposalFootnote ³¹, and I note that Israel has made efforts to enable humanitarian organizations to deliver sufficient food, water, and other basic humanitarian necessities, including through a newly established pierFootnote ³². However, the various recent statements by representatives of different United Nations agencies and other international organizations which are quoted in South Africa's response leave me with strong doubts as to whether Israel is able and willing to simultaneously conduct its current military offensive in Rafah and ensure the most basic conditions for the survival of Palestinians who have arrived, and who are expected to arrive, in the designated humanitarian areas, including the delivery of sufficient food and other basic humanitarian necessitiesFootnote ³³.

21. I also have serious doubts whether Israel's public commitment and its efforts to enable the delivery of food and other humanitarian goods can give the Court enough confidence to assume that “urgently needed basic services and humanitarian assistance” will sustainably be provided in time to the people who have left and will leave Rafah, and to those who remain there despite the ongoing military offensive. My doubts that Israel will follow up on its public commitments result not least from the repeated interruptions of humanitarian aid deliveries by private Israeli citizens, which the police and the military have not preventedFootnote ³⁴.

22. Finally, and relatedly, I am concerned by reports about continuing significant incendiary public speech in Israel, including by senior Israeli officials. When the Court adopted its first Order on 26 January 2024, I wrote separately that “such statements may contribute to a ‘serious risk’ that acts of genocide other than direct and public incitement may be committed, giving rise to Israel's obligation to prevent genocide”Footnote ³⁵. Unfortunately, significant incendiary speech has continued and, in some cases, has even been accompanied by open support for denying humanitarian aid and assistance to the population in Gaza.

23. I am not referring to speech which can be interpreted as only being directed against Hamas, but, for example, to a statement by the Israeli Minister of Finance, Mr Bezalel Smotrich — a member of the Security Cabinet — who reportedly stated at the end of April 2024: “[T]here are no half measures. Rafah, Deir al-Balah, Nuseirat — total annihilation”Footnote ³⁶; and to a statement by the Vice Chair of the international arm of the ruling Likud Party of 3 May 2024 on Israeli television, who reportedly declared: “I think we needed to invade Rafah yesterday . . . There are no uninvolved . . . [We] need to go in and kill and kill and kill”Footnote ³⁷. Even if those statements come from persons who do not have immediate responsibility for Israel's conduct in Gaza, they are at least serious indications of a volatile political context, which gives rise to doubts as to whether the State of Israel will uphold its public commitments regarding the delivery of humanitarian aid and assistance to the Palestinians in Gaza, particularly those who have fled, and will continue to flee, to Rafah. My concerns are reinforced by reports about utterances by senior Israeli officials publicly opposing the delivery of humanitarian aid by international organizations and openly supporting attacks on aid trucks destined for GazaFootnote ³⁸. In this regard, I note that the Minister of National Security, Mr Itamar Ben Gvir, when asked about recent attacks in Israel on humanitarian convoys, reportedly stated that “it's the cabinet that should be stopping the trucks”Footnote ³⁹.

24. Based on this information, I am of the view that statements made by high-ranking Israeli officials, interrupted, and delayed, deliveries of humanitarian aid and assistance, and the still highly precarious situation in Al-Mawasi and other evacuation areas, contribute to a risk for access to humanitarian aid urgently needed to ensure the survival of the Palestinian people in GazaFootnote ⁴⁰.

25. For this reason, I considered it justified that the Court specify that the Orders indicated on 26 January and 28 March 2024 limit the current military offensive in Rafah as far as it could endanger the rights of the Palestinian people under the Genocide Convention, notably their access to basic humanitarian needs. The Court's Order does not address military operations outside Rafah and the measure obliging Israel to halt the current military offensive in Rafah is conditioned by the need to prevent “conditions of life that could bring about [the] physical destruction in whole or in part” of the Palestinian group in Gaza. Thus, this measure does not concern other actions of Israel which do not give rise to such a risk.

Conclusion

26. I understand that, in the present case, the Court has exercised its discretion under Article 41 of its Statute and Article 76 of the Rules of Court in order to specify general measures indicated on 26 January and 28 March 2024, with a view to providing more guidance for the specific situation resulting from the current offensive by Israel in Rafah. While I maintain my general concerns regarding the risk of the Court overstepping its mandate under the Genocide Convention and its own Statute by being drawn into implementing its own ordersFootnote ⁴¹, I ultimately decided to agree to this measure, which is justified by the extraordinary situation resulting from the Israeli military offensive in Rafah which started on7 May 2024.

(Signed)  Georg Nolte.

I. The requirement for the modification of measures

2. The Court has taken great care to explain that, in its view, South Africa's request is based on Article 76 (1) of the Rules of Court, i.e. South Africa is requesting the Court to “modify” the previous Orders on provisional measures because there has been “some change in the situation justifying such . . . modification”. The Court takes this definitive position notwithstanding that South Africa's application itself is non-committal about the basis of the request. In addition to Article 76 (1), South Africa's application also refers to Article 75 (3), which is dependent on the presentation of “new facts” rather than “some change in the situation”.

3. For the Court, there has been “some change in the situation” since its Order of 28 March 2024. This is because, according to the Court, “the catastrophic humanitarian situation in the Gaza Strip which” it previously noted “was at risk of deteriorating, has deteriorated, and done so even further since the Court adopted its Order of 28 March 2024”. Specifically with respect to Rafah, the Court notes that the fears it expressed in its decision of 16 February 2024 have now materialized and that “the humanitarian situation is now to be characterized as disastrous”. The Court also refers to the displacement of a significant portion of the population.

4. Although all of these factors were present in March 2024, I share the Court's assessment that this intensification can, and in the present case does, represent “some change in the situation”. At the same time, it is not inconceivable that these same factors could be seen by some as merely a continuation of the same operation by Israeli forces that formed the basis of the Court's Order of 26 January 2024, or the Order of 28 March 2024. In other words, it is not beyond the realm of debate whether intensification, or worsening of the situation, can be seen as a “change in the situation”.

5. In Bosnia and Herzegovina v. Yugoslavia, the Court was able to find that “the grave risk” that underlined its original order for provisional measures “has been deepened by the persistence of conflicts on the territory of Bosnia-Herzegovina and the commission of heinous acts in the course of those conflicts” and that this provided sufficient evidence of “some change in the situation”Footnote ¹. Indeed, Bosnia and Herzegovina based its request for the indication of provisional measures on the “continuing . . . campaign of genocide against the Bosnian People — whether Muslim, Christian, Jew, Croat or Serb”Footnote ². Elsewhere, the Request by Bosnia and Herzegovina refers to the “rapidly escalating human catastrophe”Footnote ³. These factors are similar to the factors identified by the Court, both in its March Order and the current Order, as constituting evidence of “some change in the situation”.

6. Yet, in relation to the current case, in its letter of 16 February 2024, while noting the worsening situation in Gaza and that “the most recent developments in the Gaza Strip, and in Rafah in particular, ‘would exponentially increase what is already a humanitarian nightmare with untold regional consequences’”, the Court did not see it fit to modify its January 2024 Order. Similarly, in its Order of 12 October 2022 in Armenia v. Azerbaijan, the Court considered that an eruption of hostilities after the conclusion of a ceasefire agreement was insufficient to establish a change in the situation because the situation had “remained unstable” and “tenuous”Footnote ⁴. In the view of the Court, notwithstanding the eruption of new hostilities, “the situation that existed [when the first Order was issued] is ongoing and is no different from the present situation”Footnote ⁵.

7. In my view, there is no inconsistency between the positions the Court took in its decisions of 16 February 2024 and 12 October 2022 on the one hand, and on the other hand, its Order of 27 July 1993 in Bosnia Genocide and the current Order. All that these decisions illustrate is that there cannot be a hard line between “change in situation” and “no change in situation”. For this reason, in my view, the emphasis ought not to fall on whether there is “some change in situation”. The real question, and therefore the proper place of emphasis, ought to be on whether whatever circumstances put forward are such as to justify the indication of new measures or to modify existing Order.

8. Ultimately, we should not lose sight of the fact that the Rules of Court are intended to facilitate the implementation and application of the Statute, and in my view, the golden rule remains Article 41 of the Statute. The polar star contained in Article 41 empowers the Court to make an order for provisional measures “if it considers [the] circumstances so require”. This broad rule is aptly captured in Article 76 (1) of the Rules of Court which not only refers to “some change in the situation” but, and for me most importantly, states that modification of an existing order should only be made only if the changed situation “justifies such . . . modification”.

9. The Court should not conduct a superficial search for “some change in circumstances” or “new facts”. I do not mean to suggest that the Court has done so in this case. Both in the current Order, and in past Orders, notably in Bosnia Genocide, the Court has focused on whether the circumstances presented to it “justify” the adoption of new or modified measures.

10. While I agree with the conclusion of the Court that there has been some change in the situation which warrants the modification of its previous Orders, I do find the path to that conclusion somewhat troubling. In particular, I am not convinced by the Court's apparent insistence on a clinical separation between the “change in the situation” and circumstances justifying the new modification. While it may sound rigorous and intellectually sound to identify categories and boxes, e.g. “change of situation” or “new facts” and insist that no decision on modification can be made unless one of these categories is ticked, this approach denies the Court the ability to undertake an honest assessment of whether the circumstances as they present themselves justify the modification of the previous Order and the indication of different measures.

11. Indeed, the problem with the Court's general reasoning is laid bare at paragraph 21. There the Court says that it first has to ascertain whether there has been a change in the situation, but that the modification (or new measures) can only be indicated “if the general conditions laid down in Article 41 of the Statute were also met in this instance”Footnote ⁶, suggesting that the conditions in Article 41 of the Statute are additional to the requirements of Articles 75 and 76 of the Rules of Court. This clinical distinction between the change in the situation (or new facts) and Article 41 is superficial. Articles 75 and 76 of the Rules of Court should not be seen as additional to the requirements of Article 41 of the Statute, but rather as giving flesh to it. Thus, to suggest that first we search for a change in the situation and then only determine whether the requirements of Article 41 of the Statute have been met is to completely undermine Article 41 of the Statute and to de-emphasize the main condition of “if circumstances so require”.

12. In my view, the proper application of the law is reflected in the Court's conclusion where, at paragraph 48, it states that in its assessment, “the circumstances of the case require it to modify its decision set out in its Order of 28 March 2024”. It does so without the clinical separation of “change in the situation” and the question whether circumstances justify the modification of previous Orders. In fact, in the conclusion (Section III), the Court does not refer at all to the “change in the situation”.

II. The right of Israel to defend itself

13. A central issue in Israel's submissions is its right to defend itself and its people. In its submissions, Israel stated several times that it has the right and obligation to defend itself and its citizens from Hamas attacks. At one level, the argument is that the attack on 7 October 2023 constituted an armed attack to which Article 51 of the Charter of the United Nations entitles Israel to respond. At another level, the argument is that there is a general right to act for the protection of Israel and its population (beyond what is provided for in Article 51). Whether the latter is part and parcel of the former is unclear, but if it is being put forward as an independent ground for the use of force, then it is clearly incorrect.

14. For the limited purpose of this declaration, it is unnecessary to resolve the relationship of the two aspects of the right to security and self-defence. What is important to state is that South Africa, in its oral submissions, pre-empted the self-defence and security argument with a three- pronged response. First, it argued that self-defence can never be a justification for genocide. Second, it argued that Israeli operations were disproportionate to the attacks by Hamas. Finally, South Africa argued that, in accordance with the Court's Wall Advisory Opinion, Israel is not entitled to use force against a territory under its occupation.

15. As to the first issue, there is no question that the position put forward by South Africa is legally correct, and I am sure Israel would not dispute that position. But Israel will dispute (and in fact has disputed) the fact that a genocide is being committed. South Africa's first prong is therefore intricately wound up with the merits of the case. Similarly, questions have been raised about whether, at the time of the 7 October attacks by Hamas, Gaza was in fact occupied. The third prong is thus also perhaps best addressed at the merits phase. But it is not clear to me why Israel does not at all address the second prong, i.e. the gross disproportion of its response to the 7 October attacks. Indeed, throughout its oral submissions, one could not but be struck by the gross disproportion between the harms caused by Hamas that Israel is complaining of and statistics of loss and devastation on the Palestinian side occasioned by Israel's military operations. It would have been good to hear Israel respond to this question.

16. The security concern relied on by Israel raises another issue. Israel has explained that to grant South Africa's request “would mean that Hamas would be left unhindered and free to continue its attacks against Israeli territory and Israeli civilians”. Yet this position suggests a false choice between two extremes. It suggests that Israel is obliged either to allow the violation of its rights and those of its citizens or to engage in limitless operations causing the catastrophic consequences that have been so widely reported.

17. The Court has ordered Israel to “halt its military offensive in Rafah”. The reference to “offensive” operations illustrates that legitimate defensive actions, within the strict confines of international law, to repel specific attacks, would be consistent with the Order of the Court. What would not be consistent is the continuation of the offensive military operation in Rafah, and elsewhere, whose consequences for the rights protected under the Convention on the Prevention and Punishment of Genocide has been devastating.

III. Conclusion

18. There are no more words to describe the horrors in Gaza. The words “apocalyptic”, “exceptionally grave”, “disastrous” and “catastrophic” have all been used to describe the current situation, and all seem to pale in comparison to what is unfolding before our very eyes. Almost daily we are confronted with gut-wrenching accounts of victims and survivors and images of unimaginable suffering. That this is happening in the age in which international law has been said to have matured into “a much more socially conscious legal order”Footnote ⁷ is simply incongruous.

19. Today, the Court has, in explicit terms, ordered the State of Israel to halt its offensive in Rafah. The Court has previously, albeit in implicit and indirect ways, ordered the State of Israel not to conduct military operations elsewhere in Gaza because such operations prevent the delivery of human assistance and cause harm to the Palestinian people. The Court has also reiterated its urgent call for Hamas to release the hostages. But the Court is only a court!

(Signed)  Dire Tladi.

I. The situation in Rafah and Al-Mawasi

8. Israel's military operation in the Gaza Strip cannot be understood — in fact, would not exist — without the existential threat posed by Hamas and the ongoing captivity of more than one hundred hostages. It is telling that neither the threat posed by Hamas nor the situation of the hostages were mentioned by South Africa in its written request or oral argument. Not even once.

9. For years Rafah, which is part of the Gaza Strip, has been, and still is, the stronghold of Hamas. Israel explained that the indiscriminate threats and attacks by Hamas against Israel have not ceased for a single dayFootnote ⁹. Hamas continues to hide in and around hospitals and schools, and to use Palestinian civilians as human shieldsFootnote ¹⁰.

Israel maintained that hundreds of rockets have been fired from Rafah over the last two weeks hitting several cities and towns in IsraelFootnote ¹¹. Israel also referred to the elaborate tunnel system under Rafah consisting of 700 tunnel shafts, of which some 50 cross into EgyptFootnote ¹². According to Israel, these tunnels are used by Hamas to supply itself with weapons and ammunition, and could potentially be used to smuggle hostages or senior Hamas operatives out of GazaFootnote ¹³.

10. In order to prevent and repel the threat posed by Hamas and free the hostages, Israel has to carry out military operations in Rafah and in the entirety of the Gaza Strip. It has both a right and a duty to prevent and repel these threats and attacks. As stated by its highest authorities, Israel has only one aim: to defeat Hamas and bring the hostages back to Israel.

11. Israel explained during the hearings, and in its reply to the question asked by Judge Nolte, that it has taken measures to establish humanitarian zones where the civilian population may safely evacuate. The Al-Mawasi area has been designated as the principal, but not the only safe zone for the persons fleeing from Rafah. Israel provided evidence that the Al-Mawasi area is connected to the two main humanitarian routes in Gaza and to the new temporary pier (JLOTS)Footnote ¹⁴. The Al-Mawasi area is not just “barren sand dunes”Footnote ¹⁵. According to Israel, it is connected to the Bani Suhueila water line, which Israel has helped to repair, and has water tanks, water pumps and desalination plantsFootnote ¹⁶. It has also been reinforced with additional supplies of shelter, food and medicine, inter alia, and the construction of two field hospitalsFootnote ¹⁷. On 12 May 2024, Israel announced another new field hospital in the Al-Mawasi area. This constitutes the eighth field hospital facilitated by Israel in Gaza since the beginning of the warFootnote ¹⁸.

II. No place for the indication of new measures

12. In my previous opinions, I have set out my views regarding the ill-advised approach taken by the Court since the institution of proceedings by South Africa in December 2023. It is an approach that taints this and all prior orders. As was already the case with respect to the Order of 28 March 2024, this Order does not meet the conditions laid down in Article 76, paragraph 1, of the Rules of Court. The Court can modify an order indicating provisional measures only if there is a change in the circumstances that justifies such modification. Despite the fact that these conditions are not met, the Court has imposed additional measures on Israel. In so doing, it is acting outside its judicial function and beyond the jurisdiction conferred on it by States under Article 41 of the ICJ Statute. Its approach also severely undermines the integrity of the Genocide Convention.

III. The limited nature of the measures indicated by the Court

27. The first measure indicated by the Court reaffirms the previous Orders of 26 January and 28 March 2024. Since I voted against the majority of the measures indicated by the Court in those Orders, I have voted against this measure as well.

28. The first additional measure indicated by the Court reiterates an obligation that already exists for Israel under the Genocide Convention, and specifies the measures previously indicated by the Court in its Orders of 26 January and 28 March 2024. This measure reads:

I have voted against this measure because the conditions necessary for its indication under Article 76, paragraph 1, of the Rules of Court are not met. However, I note that this measure does not require Israel to refrain from its military operation in Rafah altogether. It is not an unconditional obligation to halt the military operation. It specifies that Israel must, in accordance with its obligations under the 1948 Genocide Convention, conduct its military offensive in a way that does not deprive the Palestinian civilian population of its essential means of existence. Naturally, if the military offensive was being carried out in violation of Israel's obligations under the Genocide Convention, it would need to end. Nevertheless, there is no evidence, even at the low standard required for provisional measures, that any rights under the Genocide Convention are implicated. The Court's first measure is therefore limited to offensive (and not defensive) military action in Rafah, and requires a halt only in so far as is necessary to protect the Palestinian group in Gaza from conditions of life that could bring about its physical destruction. This qualified measure shows that the Court is cognizant of Israel's need to undertake those military operations that are necessary to prevent and repel threats and attacks by Hamas, and to take action to defend itself and its citizens and free the hostages held in Gaza.

29. The second additional measure reads:

This measure reaffirms the Court's two previous Orders. In particular, it specifies the measure indicated in paragraph 86, subparagraph 4, of the Order of 26 January 2024, and paragraph 51, subparagraph 2 (a), of the Order of 28 March 2024. I voted in favour of both of those measures because I believe that the provision of humanitarian aid and assistance is crucial. However, I cannot support this new specification because it is targeted at the Rafah crossing. The Court did not have a single piece of evidence regarding the situation of the Rafah crossing. The Parties did not present any evidence on whether Israel, Egypt, or both, are responsible for the current closure of the Rafah crossing. More importantly, the Rafah crossing can only operate if both Egypt and Israel agree. I do not understand how Israel can be expected to “maintain open” a crossing with respect to which it does not have exclusive control. The Court has indicated this measure with scant evidence before it and ignoring that another sovereign State controls the other half of the crossing.

30. The third additional measure reads:

This measure again reaffirms Israel's existing obligations under the first two Orders, which provide that Israel must preserve evidence. I voted against this measure because South Africa has not provided evidence that additional measures are required for the preservation of evidence. Neither the geographic scope nor the mandate of these fact-finding missions is clearly defined. It is also unclear what a “competent organ” means in this context. While I understand the merits of independent fact-finding, such measures should not arise out of a Court order, but rather based on consent.

31. The fourth additional measure provides that “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 if this Order”. This measure extends Israel's reporting obligations. I voted against this measure because the reporting obligations have not served a meaningful purpose.

IV. Concluding remarks

32. I would like to end by reiterating that I sincerely hope that this war comes to an end as quickly as possible, and that the hostages will return to Israel immediatelyFootnote ²⁸. In this regard, I appreciate that the Court, in this Order, “finds it deeply troubling that many of these hostages remain in captivity and reiterates its call for their immediate and unconditional release” (paragraph 56 of this Order). Like every State, Israel has the fundamental right to protect its citizens and itself. This right receives a special dimension in the case of the hostages, in the sense that it imposes a duty on the State to do everything in its power to bring them back to Israel. The fulfilment of this duty is not in conflict with Israel's obligations under the Genocide Convention because it stems from Israel's intent to protect its citizens and not from an intent to commit acts prohibited under the Genocide Convention. As I have written in my first opinion in this case, “[i]t is to protect these values that Israel's daughters and sons have selflessly paid with their lives and dreams, in a war that Israel did not choose”Footnote ²⁹. The key to ending this war does not lie in asking the Court to intervene in this conflict by making unsubstantiated allegations of genocide against Israel. The key to ending this war lies in the hands of Hamas. Hamas has started the war and can finish it by releasing the hostages and by fully respecting the security of the State of Israel and its citizens.

33. The Court is in a difficult position and facing great pressure. Even so, the Court should not have sacrificed the integrity of the Genocide Convention and overstepped the limits of its jurisdiction in response to public pressure. The urge to “do something” is understandable, particularly as the ceasefire request comes before this Court for the fourth time. But this cannot be sufficient. The absence of Hamas from the proceedings and a jurisdiction confined to the Genocide Convention and Article 41 of the ICJ Statute remain significant obstacles, as they were in January when South Africa made its first request.

34. I underwent similar experiences in my 28 years as a judge on Israel's Supreme Court. The only way that I found to be truthful as a judge was to leave aside the “background noise” and focus purely on the legal reasoning. This is the only common language that we judges have. We cannot be bothered by political, military or public policy troubles. We can only be concerned with legal troubles. We are a court of law, not one of public opinion. When we judges sit at trial, we also stand on trial. We will not be judged by hysteria and the fleeting waves of the hour, but by history.

(Signed)  Aharon Barak.