International Court of Justice ~ South Africa and others v Israel

Updated 29 January 2024

On 29 December 2023, South Africa filed an application instituting proceedings against Israel before the International Court of Justice (ICJ), 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.

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

The Applicant further states

that “Israel, since 7 October 2023 in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide” and that “Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza”.

South Africa seeks to found the Court’s jurisdiction on Article 36, paragraph 1, of the Statute of the Court and on Article IX of the Genocide Convention, to which both South Africa and Israel are parties.

The Application also contains a Request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court.

The Republic of South Africa institutes proceedings against the State of Israel and requests the Court to indicate provisional measures (icj-cij.org)

The Application instituting proceedings, which includes the Request for the indication of provisional measures, is available on the Court’s website - Application instituting proceedings and Request for the indication of provisional measures (icj-cij.org)

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Commentary:

Joshua Rozenberg 11 January 2024 - South Africa accuses Israel of genocide (substack.com)

Media:

11 January 2024 - Hearings to begin at The Hague in case claiming Israel’s Gaza war is genocide | Israel-Gaza war | The Guardian

11 January 2024 - ICJ case against Israel could finally empower the genocide convention | Israel-Gaza war | The Guardian

11 January 2024 - Israel-Hamas war live: 'Moment of grave peril' for Israel as South Africa takes it to International Criminal Court | World News | Sky News

*** UPDATE 29 January 2024 ***

On Friday 26 January 2024, the International Court of Justice  ordered provisional measures in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).

Here is the Court’s Order of 26 January 2024 (icj-cij.org) - 29 pages pdf - and see the Press release - The Court indicates provisional measures (icj-cij.org).

The provisional measures were ordered by a substantial majority (either 15 to 2 or 16 to 1). Judge Sebutinde (Uganda) dissented on all the measures. Her dissenting opinion and also the views of Judges Xue, Bhandari, Nolte, and of Judge ad hoc Barak may be seen at Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (Sou (icj-cij.org).

Israel must report to the Court within one month on action taken to address the provisional measures.

The ICJ’s Provisional Measures Order in the South Africa v. Israel Case: Unsurprising; Politically and Legally Significant - Opinio Juris 27 January 2024