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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 Indicating Provisional Measures of 26 January 2024, Order of 28 March 2024

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aliasesSouth Africa v. Israel Order of 28 March 2024, ICJ Modification Order, 28 March 2024

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Summary

The Order of the International Court of Justice modifying the Provisional measures in South Africa v. Israel (Genocide Convention): finding that famine is setting in in Gaza and that the catastrophic living conditions have deteriorated further since 26 January 2024 — an exceptionally grave change in the situation under Rules Article 76 that the January measures do not fully address, with a further real and imminent risk of irreparable prejudice to the plausible rights already found — the Court reaffirms the January measures and indicates two new measures requiring Israel to ensure, without delay and in full co-operation with the United Nations, the unhindered provision at scale of urgently needed basic services and humanitarian assistance throughout Gaza, including by increasing and keeping open land crossing points, and to ensure its military does not commit acts violating Palestinians’ rights as a protected group, including by preventing delivery of humanitarian assistance, and to report within one month (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 Indicating Provisional Measures of 26 January 2024, Order of 28 March 2024, PDF p.11, p.16-19).

What the file is

The Order as published in I.C.J. Reports 2024, p. 513, General List No. 192, done in French and in English with the French text authoritative at the Peace Palace, The Hague, on 28 March 2024 (PDF p.2, p.19). 20 PDF pages, about 6,486 words; printed pagination runs p.513-528 for the Order, with bilingual covers and imprint at PDF p.1-3 and a contents-of-the-fascicle page at PDF p.20. The text copy is clean and paginated with PDF page markers. The bench as listed is President Salam, Vice-President Sebutinde, Judges Tomka, Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu and Tladi, Judge ad hoc Barak, and Registrar Gautier (PDF p.5). The file ends by noting appended declarations by President Salam and Judges Yusuf and Charlesworth, a joint declaration by Judges Xue, Brant, Gómez Robledo and Tladi, and separate opinions by Judge Nolte and Judge ad hoc Barak; those appended texts are not in this file, and are listed in the fascicle contents at PDF p.20 with their printed page numbers (529, 532, 536, 539, 542 and 545).

Section by section

  • Chronology of the Procedure, paras. 1-10 (PDF p.5-8). Para. 1: on 29 December 2023 South Africa filed its Application concerning alleged violations in the Gaza Strip of obligations under the Genocide Convention. Para. 2: jurisdiction is founded on Statute Article 36(1) and Convention Article IX. Para. 3: the Application contained the provisional-measures Request under Statute Article 41 and Rules Articles 73, 74 and 75. Para. 4: with no judge of either Party’s nationality on the Bench, South Africa chose Dikgang Ernest Moseneke and Israel chose Aharon Barak as judges ad hoc under Statute Article 31; following the election to the Court, with effect from 6 February 2024, of Judge Dire Tladi, a South African national, Moseneke ceased to sit as judge ad hoc under Rules Article 35(6). Para. 5 quotes in full the six measures indicated on 26 January 2024 (PDF p.6-7). Para. 6: by a communication dated 12 February 2024 South Africa, referring to “the developing circumstances in Rafah”, called on the Court urgently to exercise its power under Rules Article 75(1); Israel provided observations by letter dated 15 February 2024. Para. 7 quotes the Court’s decision transmitted on 16 February 2024: the developments in Gaza, and in Rafah in particular, “would exponentially increase what is already a humanitarian nightmare with untold regional consequences”, as stated by the UN Secretary-General (7 February 2024); the perilous situation demanded immediate and effective implementation of the January measures, applicable throughout Gaza including in Rafah, and did not demand additional measures; Israel remained bound to fully comply, including by ensuring the safety and security of Palestinians in Gaza. Para. 8: Israel submitted its report under the January Order on 26 February 2024; South Africa presented observations on it on 11 March 2024. Para. 9: on 6 March 2024 South Africa requested the Court “to indicate further provisional measures and/or to modify its provisional measures indicated on 26 January 2024”, with reference to Statute Article 41 and Rules Articles 75(1) and (3) and 76 (the Request of 6 March 2024); 15 March 2024 was fixed for Israel’s written observations. Para. 10: Israel provided them on that date.
  • I. General Observations, paras. 11-23 (PDF p.8-11). Para. 11 quotes in full the five measures South Africa requests by way of indication, clarification and/or modification: (1) all participants in the conflict must ensure all fighting and hostilities come to an immediate halt and all hostages and detainees are released immediately; (2) all Parties to the Convention must forthwith take all measures necessary to comply with all their Convention obligations; (3) all Parties to the Convention must forthwith refrain from any action, in particular any armed action or support thereof, which might prejudice the right of 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, or which might aggravate or extend the dispute or make it more difficult to resolve; (4) Israel shall take immediate and effective measures to enable urgently needed basic services and humanitarian assistance to address famine and starvation and the adverse conditions of life faced by Palestinians in Gaza, by immediately suspending its military operations in Gaza, lifting its blockade of Gaza, rescinding all other measures and practices obstructing access, and ensuring provision of adequate and sufficient food, water, fuel, shelter, clothing, hygiene and sanitation requirements alongside medical assistance; and (5) Israel shall submit an open report within one month on all measures taken to give effect to all measures ordered to date. Para. 12: Israel asks the Court to reject the Request and not indicate any further measures. Paras. 13-15: the Court treats the Request as a request for modification under Rules Article 76(1), quoted in full, and sets the two-step test — first whether the situation that warranted the January measures has changed, then whether the change justifies modification, which is only appropriate if the new situation in turn requires provisional measures under Statute Article 41 (Armenia v. Azerbaijan, Order of 12 October 2022, para. 12). Para. 16: South Africa states the Request is prompted by “[t]he horrific deaths from starvation of Palestinian children, including babies, brought about by Israel’s deliberate acts and omissions”, including its concerted attempts since 26 January 2024 to ensure the defunding of UNRWA and its attacks on starving Palestinians seeking the extremely limited assistance permitted into Northern Gaza; widespread starvation in particular is a change in the situation. Para. 17: Israel rejects “in the strongest terms” that starvation is a direct result of its deliberate acts and omissions; hostilities continue as they did in January; the Court already took food insecurity into account; “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”. Paras. 18-21: the Court recalls its January conclusion that the civilian population was extremely vulnerable, many having “no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating” (January Order, para. 70), and its 16 February decision; it observes with regret that the catastrophic living conditions have deteriorated further, in particular through prolonged and widespread deprivation of food and other basic necessities. It notes the IPC Global Initiative report of 18 March 2024, quoting its warning that famine may occur by the end of May 2024 and its conclusion that “[f]amine is imminent in the northern governorates and projected to occur anytime between mid-March and May 2024”; UNICEF’s report of 15 March 2024 that 31 per cent of children under 2 in the northern Gaza Strip suffered acute malnutrition, “a staggering escalation from 15.6 per cent in January”; and that Palestinians are no longer facing only a risk of famine but famine is setting in, with at least 31 people, including 27 children, already dead of malnutrition and dehydration according to OCHA (reported impact, Day 169, 25 March 2024). Paras. 22-23: those exceptionally grave developments constitute a change in the situation within Rules Article 76, and the January measures do not fully address the consequences arising from the changes, justifying modification if the Article 41 conditions are also met.
  • II. Conditions for the Indication of Provisional Measures, paras. 24-40 (PDF p.12-16). Paras. 24-25: the Court sees no reason to revisit its January conclusions of prima facie jurisdiction under Article IX and of the plausibility of at least some rights claimed — the right of Palestinians in Gaza to be protected from acts of genocide and related Article III acts, and South Africa’s right to seek Israel’s compliance — or that at least some measures sought are aimed at preserving those rights. Paras. 26-27: the remaining questions are risk of irreparable prejudice and urgency; in January the Court held, in view of the fundamental values the Convention seeks to protect, that prejudice to the plausible rights is capable of causing irreparable harm and that a real and imminent risk existed (January Order, paras. 65-74). Para. 28: South Africa states the demand for additional and/or modified measures “could not be starker”, and that as of 6 March 2024 Israel had also continued to kill approximately 4,548 Palestinian men, women and children since 26 January 2024 and to wound a further 7,556, in addition to causing death by starvation of Palestinian children. Para. 29: Israel contends nothing establishes the January measures would no longer be sufficient; it recognizes food insecurity, especially in northern Gaza, is a serious challenge, but states there is an “extensive record of Israeli efforts in the humanitarian sphere”, referring inter alia to a maritime corridor and floating pier, humanitarian airdrops, facilitation of aid through land routes and co-operation with UN agencies, and that South Africa gave no justification for the specific measures sought. Paras. 30-39 set out the material the Court takes note of: the deterioration already observed; unprecedented food insecurity and increasing epidemic risks, including the 27 February 2024 Security Council briefing by senior OCHA, FAO and WFP representatives quoting OCHA’s Director of the Coordination Division that in December the entire population of 2.2 million was projected to face high levels of acute food insecurity by February 2024, “the highest share of people facing that level of food insecurity ever recorded worldwide”, and that military operations, insecurity and extensive restrictions had decimated food production and agriculture (S/PV.9560); WHO’s 22 February 2024 technical note on the high risk of spread of epidemic-prone diseases; Israel’s account of “significant measures undertaken continuously by Israel throughout the present hostilities” and of challenges inherent to a densely populated, aid-dependent theatre of active hostilities; the UN High Commissioner for Human Rights Volker Türk’s statement of 19 March 2024 that “[t]he situation of hunger, starvation and famine is a result of Israel’s extensive restrictions on the entry and distribution of humanitarian aid and commercial goods, displacement of most of the population, as well as the destruction of crucial civilian infrastructure”; the position of UN representatives and others that there is no substitute for land routes and entry points from Israel into Gaza and an urgent need to increase the capacity and number of open land crossing points (joint statement by Sigrid Kaag and Jorge Moreira da Silva, 12 March 2024); declarations by UN and relief representatives that the situation can only be addressed if military operations are suspended — the UN Under-Secretary-General for Humanitarian Affairs (8 March 2024), WFP’s Deputy Executive Director (5 March 2024), UNICEF’s Executive Director (15 March 2024) and the ICRC President (11 March 2024); Security Council resolution 2728 (2024), which “[d]emand[ed] an immediate ceasefire for the month of Ramadan respected by all parties leading to a lasting sustainable ceasefire”; the Secretary-General’s statement of 18 March 2024 on the IPC report (“This is an entirely manmade disaster”); and OCHA’s Day 169 figures that since 26 January 2024 the military operation has reportedly led to over 6,600 additional fatalities and almost 11,000 additional injuries among Palestinians in Gaza. Para. 40: the current situation entails a further risk of irreparable prejudice to the plausible rights and there is urgency, a real and imminent risk before final decision.
  • III. Conclusion and Measures to Be Adopted, paras. 41-49 (PDF p.16-17). Para. 41: the circumstances require modification of the January decision. Paras. 42-43: under Rules Article 75(2) the Court may indicate measures other than those requested, in whole or in part, and they need not be identical to those requested. Para. 44: measures cannot be indicated against States or entities not parties, because a judgment has under Statute Article 59 “no binding force except between the parties” (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), Order of 13 September 1993, para. 40); the Court thus cannot indicate the first three measures sought. Para. 45 states the substance of the two new measures (see Operative Clause). Para. 46: the catastrophic situation confirms the need for immediate and effective implementation of the January measures, applicable throughout Gaza including in Rafah, and the Court reaffirms them. Para. 47: Israel must report within one month, the report to be communicated to South Africa for its comments. Para. 48: Article 41 orders have binding effect and create international legal obligations (Ukraine v. Russian Federation, Order of 16 March 2022, para. 84). Para. 49: the Order is without prejudice to any findings concerning Israel’s compliance with the January Order. Para. 50 (PDF p.18): the Court finds it deeply troubling that many of the hostages abducted on 7 October 2023 and held by Hamas and other armed groups remain in captivity and reiterates its call for their immediate and unconditional release.
  • Operative Clause, para. 51 (PDF p.18-19). 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 and Tladi; against Vice-President Sebutinde and Judge ad hoc Barak; (2) indicates that Israel shall, in conformity with its Convention obligations 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, including by preventing, through any action, the delivery of urgently needed humanitarian assistance — Judge ad hoc Barak alone against on (2)(b); and (3) by fifteen votes to one, decides Israel shall submit a report on all measures taken to give effect to this Order within one month — Judge ad hoc Barak alone against.

Key passages

  • “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” (para. 21, PDF p.11)
  • “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.” (para. 22, PDF p.11)
  • “[f]amine is imminent in the northern governorates and projected to occur anytime between mid-March and May 2024” (IPC Global Initiative, “Special Brief: The Gaza Strip”, 18 March 2024, quoted para. 19, PDF p.11)
  • “This is an entirely manmade disaster” (UN Secretary-General, press encounter on Gaza food insecurity report, 18 March 2024, quoted para. 38, PDF p.15)
  • “[t]he situation of hunger, starvation and famine is a result of Israel’s extensive restrictions on the entry and distribution of humanitarian aid and commercial goods, displacement of most of the population, as well as the destruction of crucial civilian infrastructure” (Volker Türk, OHCHR press release, 19 March 2024, quoted para. 34, PDF p.14)
  • “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” (para. 40, PDF p.16)

Evidence the work relies on

  • The Parties’ submissions as reproduced and summarised in the Order: South Africa’s 12 February 2024 communication on Rafah and its Request of 6 March 2024 with the five measures quoted at para. 11 and its starvation, UNRWA-defunding and killing and wounding figures (paras. 6, 16, 28), and Israel’s observations of 15 February and 15 March 2024, its report of 26 February 2024, and its accounts of hostilities, food insecurity and humanitarian efforts (paras. 6, 8, 10, 12, 17, 29, 33).
  • The Court’s own earlier decisions and jurisprudence as cited: the Order of 26 January 2024 and the decision communicated on 16 February 2024 in this case; Armenia v. Azerbaijan, Order of 12 October 2022, para. 12 (modification test); Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), Order of 13 September 1993, para. 40 (no measures against third States); and Ukraine v. Russian Federation, Order of 16 March 2022, para. 84 (binding effect).
  • United Nations and relief materials noted: IPC Global Initiative, “Special Brief: The Gaza Strip” (18 March 2024); UNICEF press release (15 March 2024) on acute malnutrition doubling in the north; OCHA, “Hostilities in the Gaza Strip and Israel — reported impact, Day 169” (25 March 2024) for the 31 deaths from malnutrition and dehydration including 27 children and for over 6,600 additional fatalities and almost 11,000 additional injuries since 26 January; the OCHA, FAO and WFP briefing to the Security Council of 27 February 2024 (S/PV.9560); WHO technical note of 22 February 2024 on epidemic-prone diseases; OHCHR comment by Volker Türk (19 March 2024); the joint statement by Sigrid Kaag and Jorge Moreira da Silva (12 March 2024); statements by the UN Under-Secretary-General for Humanitarian Affairs (8 March 2024), WFP’s Deputy Executive Director (5 March 2024), UNICEF’s Executive Director (15 March 2024) and the ICRC President (11 March 2024); Security Council resolution 2728 (2024); and the Secretary-General’s remarks of 7 February 2024 and press encounter of 18 March 2024.
  • Treaty and institutional texts: Statute Articles 31, 36(1), 41 and 59; Rules Articles 35(6), 73, 74, 75 and 76; Genocide Convention Articles II, III and IX.

Analysis

The Order is a modification decision, and its reasoning is structured by Rules Article 76 rather than by a fresh application of the full provisional-measures tests: it first finds a change in the situation since January — the deterioration from a risk of famine to famine setting in, evidenced by the IPC, UNICEF and OCHA materials it reproduces — then holds the January measures do not fully address the consequences of that change, and, expressly not revisiting its January findings on prima facie jurisdiction and plausible rights, finds a further risk of irreparable prejudice and urgency on the new material. The measures indicated are narrower than those requested. The Order explains one respect: the first three requested measures, addressed to all participants in the conflict and to all Parties to the Convention, cannot be indicated because provisional measures can bind only the parties to the case (para. 44). The requested suspension of military operations, lifting of the blockade and rescission of obstructing measures in requested measure (4) are likewise not indicated as such, but for those the Order gives only its general power under paras. 42-43 to indicate measures other than those requested, in whole or in part, and does not explain why they were not indicated; instead measure (4)‘s humanitarian object is given effect through an assistance-at-scale measure framed around unhindered provision, full co-operation with the United Nations and land crossing points, plus a military non-violation measure that expressly includes preventing delivery of humanitarian assistance. The January measures are reaffirmed rather than replaced, and a fresh one-month report is required. The Order reserves Israel’s compliance with the January Order (para. 49) and makes no merits finding.

People, organizations, places and events

International Court of Justice, South Africa, Israel, Gaza, Rafah, Hamas, UNRWA, UN-OCHA, UNICEF, World Food Programme, Food and Agriculture Organization, World Health Organization, Integrated Food Security Phase Classification, UN Security Council, International Committee of the Red Cross, South Africa v. Israel (Genocide Convention), UN Security Council Resolution 2728

Concepts

Genocide Convention, Genocide, Provisional measures, Famine

How it relates to other sources

Open questions

  • The table of contents (PDF p.4) lists Section III as paras. 41-49 and the Operative Clause as para. 51, and does not list para. 50, which in the text is the Court’s statement on the hostages held by Hamas and other armed groups and its reiterated call for their immediate and unconditional release (PDF p.18).
  • The two pairs of figures for Palestinian casualties since 26 January 2024 — South Africa’s approximately 4,548 killed and 7,556 wounded as of 6 March 2024 (para. 28) and OCHA’s over 6,600 fatalities and almost 11,000 injuries as reported on 25 March 2024 (para. 39) — are both recorded; they are attributed to different sources at different dates and are not reconciled in the Order.
  • The contents-of-the-fascicle page (PDF p.20) is shown in the text copy with printed page 555, which does not follow the Order’s printed sequence 513-528; the fascicle contents themselves list the appended declarations and opinions at printed pp. 529-545, which are not in this file.
  • This Order was done in French and English with the French text authoritative (PDF p.19), whereas the Order of 26 January 2024 was done in English and French with the English text authoritative (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 Indication of Provisional Measures, Order of 26 January 2024, PDF p.33); the Order does not explain the change.
  • The declarations and separate opinions appended to this Order (Salam, Yusuf, Xue/Brant/Gómez Robledo/Tladi, Nolte, Charlesworth, Barak) are noted at PDF p.19-20 but are not in this file and have not been ingested as part of it.

Coverage

PDF p.1-20 of 20, read in full

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