Additional provisional measures. ICJ Order: Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)

28 March 2024

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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 judgment in a particular case by which disputed rights may be adjudged by the Court to belong to the Applicant or to the Respondent has, in accordance with Article 59 of the Statute of the Court, ‘no binding force except between the parties’ . . . accordingly the Court may, for the preservation of those rights, indicate provisional measures to be taken by the parties, but not by third States or other entities who would not be bound by the eventual judgment to recognize and respect those rights” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 344, para. 40).

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 theworsening 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

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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.

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51. For these reasons,

THE COURT,

(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;

(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:

(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;

(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;

(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 Bara

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