## Facts

- South Africa filed proceedings against Israel under Article IX of the Genocide Convention, alleging Israel breached Convention obligations in connection with conduct in the Gaza Strip.
- South Africa requested provisional measures under Article 41 of the ICJ Statute to protect Palestinians in Gaza pending a merits decision.
- The Court considered the context of the October 7, 2023 attacks in Israel and Israel’s subsequent military operations in Gaza, including extensive civilian casualties, destruction of civilian infrastructure, and large-scale displacement.
- South Africa alleged Israel failed to prevent genocide, committed acts prohibited by the Convention, and failed to prevent and punish direct and public incitement to genocide.
- Israel denied genocidal intent and argued its actions were lawful, including as self-defense.
- After hearings on January 11–12, 2024, the ICJ issued an order on January 26, 2024 addressing only provisional measures, not the merits.

## Issues

1. Whether the Court had prima facie jurisdiction under Article IX of the Genocide Convention.
2. Whether South Africa had standing to invoke Israel’s compliance with obligations under the Genocide Convention regarding Palestinians in Gaza.
3. Whether the rights asserted were plausible at the provisional-measures stage and sufficiently linked to the measures requested.
4. Whether there was a real and imminent risk of irreparable prejudice and urgency justifying provisional measures.
5. What provisional measures, if any, should be indicated.

## Decision

- The Court held it had prima facie jurisdiction under Article IX because both States were parties without reservations to Article IX and a dispute existed regarding Israel’s compliance with the Convention.
- The Court held South Africa had standing because obligations under the Genocide Convention are owed erga omnes partes, giving each State party an interest in compliance.
- The Court found plausible (at this stage) the right of Palestinians in Gaza to be protected from acts within Article II of the Convention and South Africa’s right to seek compliance, and found a sufficient link to the requested measures.
- The Court found extreme gravity and urgency and a real and imminent risk of irreparable prejudice to the plausible rights.
- The Court indicated binding provisional measures requiring Israel to:
  - take all measures within its power to prevent acts within Article II (including killing, causing serious bodily or mental harm, inflicting destructive conditions of life, and imposing measures intended to prevent births) against Palestinians in Gaza;
  - ensure its forces do not commit such acts and take measures to prevent and punish direct and public incitement to genocide relating to Palestinians in Gaza;
  - take immediate and effective measures to enable urgently needed basic services and humanitarian assistance;
  - prevent destruction and ensure preservation of relevant evidence; and
  - report to the Court within one month on steps taken to implement the order.
- The Court declined to order a ceasefire or suspension of military operations and reserved all merits determinations.

## Legal Principles

- At the provisional-measures stage, the Court assesses prima facie jurisdiction, plausibility of rights, a link between rights and requested measures, and urgency/risk of irreparable prejudice; it does not determine the merits.
- Article IX of the Genocide Convention may confer jurisdiction where the parties hold clearly opposite views about alleged Convention violations.
- Genocide Convention obligations are erga omnes partes; any State party may invoke another party’s compliance without showing special injury.
- Provisional measures indicated under Article 41 of the ICJ Statute are binding.
- The duty to prevent genocide includes taking measures within a State’s power to prevent acts listed in Article II and to prevent and punish direct and public incitement to genocide.
- The Court may order affirmative steps (e.g., facilitating humanitarian assistance, preserving evidence, and reporting) to protect plausible Convention rights pending judgment.

## Conclusion

The ICJ found prima facie jurisdiction and standing and, due to plausible Genocide Convention rights at risk under urgent conditions, ordered Israel to take specified binding measures to prevent genocidal acts and incitement, enable humanitarian assistance, preserve evidence, and report on implementation, while making no merits findings on whether genocide occurred.


Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Provisional Measures Order (Int’l Ct. Just. Jan. 26, 2024)