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Observations of the State of Israel on the Request Filed by the Republic of South Africa on 6 March 2024 for the Indication of Additional Provisional Measures and/or the Modification of Measures Previously Indicated

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aliasesIsrael observations on South Africa's request of 6 March 2024

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Summary

Israel asks the Court to refuse South Africa’s third request for provisional measures, filed 6 March 2024 in South Africa v. Israel (Genocide Convention): the request relitigates what the Order of 26 January 2024 and the decision of 16 February 2024 already decided, it establishes no “change in the situation” under Rules Article 76(1) and no new facts under Article 75(3) — food insecurity was already before the Court in January — and it gives no justification connecting any change to the five specific measures proposed, whose terms would in any case bind only Israel, add nothing to the measures already indicated, or require a unilateral suspension of military operations and an “open” report (Observations of the State of Israel on the Request Filed by the Republic of South Africa on 6 March 2024 for the Indication of Additional Provisional Measures and/or the Modification of Measures Previously Indicated, PDF p.12-21). Against South Africa’s account Israel sets an extensive record of humanitarian efforts it says it has facilitated since its Report of 26 February 2024 — a Cyprus maritime corridor, a US floating pier, airdrops, about 200 aid trucks a day, a new route into northern Gaza and medical measures — and rejects the claims on UNRWA, on the 29 February 2024 Gaza City aid incident and on deliberate starvation (PDF p.4-11).

What the file is

A written pleading of the State of Israel in South Africa v. Israel (Genocide Convention), General List No. 192, filed under the ICJ case file identifier dated 15 March 2024. 21 PDF pages, about 10,968 words; five numbered sections, 80 numbered paragraphs and 91 footnotes; no signature or date line appears in the text. The observations answer South Africa’s Request of 6 March 2024 (cited throughout as “South Africa’s Request of 6 March 2024”), whose own text is not in this file; the five measures it proposed are reproduced only in the passages Israel quotes from its para. 17. The file also postdates, and does not answer except by a reservation of position, South Africa’s Observations of 11 March 2024 on Israel’s Report (para. 8, footnote 9).

Section by section

  • Section 1, Introduction, paras. 1-13 (PDF p.1-4). The 6 March request is South Africa’s third in less than ten weeks, bellicose in tone; its accusations, like the Application, are “wholly unfounded in fact and law, morally repugnant, and represent an abuse both of the Genocide Convention and of the Court itself” (para. 1). Chronology: Application of 29 December 2023 requesting nine measures, the most extreme an attempt to prevent Israel defending itself and securing the hostages’ release; Order of 26 January 2024 declining the excessive measures and indicating six, and calling for a report within one month, which Israel has submitted; the Order prejudged nothing and called for the hostages’ immediate and unconditional release, a call unheeded, with 134 hostages still in brutal captivity in Gaza and no discernible steps by South Africa to use its influence with its ally Hamas (paras. 2-3). The 12 February request, three weeks later, cited a “significant development” misleadingly depicted as an “unprecedented military offensive” in Rafah; by invoking Article 75(1) it apparently acknowledged it could show no change in the situation under Article 76(1), and on 16 February 2024 the Court decided further measures were not required (paras. 4-5). Israel’s Report followed on 26 February 2024 (para. 86(6)); the present request came barely a week later, before South Africa could seriously have considered the Report, and South Africa’s Observations on the Report followed on 11 March — “a constant barrage of documentation” and “an abusive exploitation of the Court’s procedures” (paras. 6-9). Israel’s continuous humanitarian initiatives, mitigation efforts, humanitarian pauses and War Cabinet and IDF directives cannot be reconciled with genocidal intent; the suffering and casualties are the result of urban warfare against a genocidal terrorist organization Israel did not start; the request should be rejected, without prejudice to jurisdiction, admissibility and the merits, and non-response to an inaccuracy is not admission (paras. 10-13).
  • Section 2, South Africa fundamentally misrepresents the reality, its causes, and the efforts undertaken by Israel to address it, paras. 14-37 (PDF p.4-10). South Africa’s pattern is misrepresentation, false attribution to Israeli wrongdoing and a libellous assignment of malign intent; the accusations of “massacring desperate, starving Palestinians”, “deliberately starving” Palestinians, “deliberately killing and targeting humanitarian workers” and using aid as a bargaining chip in negotiations are manifestly untrue (paras. 14-15). On the 29 February 2024 Gaza City incident, which South Africa calls the “flour massacre”: Israeli forces were escorting a convoy to facilitate its safe movement and deter looters; the General Staff’s Fact-Finding and Assessment Mechanism is still examining the events, including whether some deaths and injuries were caused by trampling; a preliminary inquiry by the Commander of the IDF Southern Command indicates thousands of residents blocked and looted the convoy, warning shots were fired as the crowd advanced, then live fire towards those considered to pose imminent danger; intent to harm those seeking aid and posing no threat is rejected (paras. 16-17; see Flour Massacre). The humanitarian difficulties are attributed to active hostilities, to Hamas’s exploitation of civilians and infrastructure, to aid organizations’ necessary coordination with Hamas which controls all governmental ministries in Gaza and diverts supplies, to looting by criminal gangs, and to Hamas threats against Palestinians who would secure convoys — they will be “handled with an iron first” (paras. 18-21). The efforts Israel then lists: a maritime corridor agreed with Cyprus after months of discussions, welcomed by UN Coordinator Ms. Sigrid Kaag, with a ship carrying 200 tonnes of food leaving Cyprus on 13 March 2024 (para. 22); President Biden’s 7 March announcement of a US floating pier off Gaza, the IDF involved in construction and security arrangements (para. 23); airdrops — four tonnes from the United Kingdom and Jordan on 21 February, about 1,138 aid packages facilitated with Egypt, Jordan, the United Arab Emirates, Qatar, Belgium, France and the Netherlands between 26 February and 9 March, and nine US operations between 2 and 13 March parachuting more than 35,000 meal equivalents and 28,000 bottles of water (para. 24); land routes at about 200 trucks a day over the last two weeks on COGAT data, increased use of the Allenby Bridge route from Jordan, and readiness to add scanners and personnel (para. 25; see COGAT); a new land route directly into northern Gaza, used for food in coordination with the WFP on 12 March, WFP taking over flour shipments stalled at Ashdod Port that were originally intended for UNRWA, direct coordination with bakeries and grocery stores, and 273 additional food trucks to northern Gaza between 24 February and 9 March (para. 26; see World Food Programme); third-party security services for convoys under consideration with the UN, and walls of 525 metres and 720 metres to protect the UN warehouse complex in Gaza and the Qatari warehouse complex at the Rafah crossing against looting (paras. 27-28); medical measures — more than 19,740 tonnes of medical supplies entered since the war began, two field hospitals in addition to the four operating in January (ICRC and United Kingdom), 8 trucks of UK-MED equipment entering 8-11 March, a UAE floating hospital at El-Arish from 26 February, a planned ophthalmology department with the St. John Eye Hospital within the IMC field hospital, 50 UNICEF incubators for five named hospitals on 3 March, ambulances inspected at Nitzana, vaccines arriving at Al-Arish on 12 March (44,900 Hepatitis B; 134,500 combined tetanus, diphtheria, pertussis, hepatitis B and haemophilus influenzae; 30,000 diphtheria, tetanus and pertussis — spellings as printed, see Open questions), fuel deliveries and generator repairs and transfers at Ahli, Shifa and Nassar hospitals, and equipment and protective gear for the ICRC, WFP, UNICEF, UK-MED, OCHA and the World Central Kitchen, with daily COGAT meetings with the United States, Egypt and the UN and continuing cooperation with Ms. Kaag (paras. 29-36). The allegations are therefore “patently absurd” (para. 37).
  • Section 3, Additional flaws in South Africa’s argument, paras. 38-44 (PDF p.10-12). On UNRWA: the claim that “Israel’s concerted attempts since 26 January 2024 to ensure the defunding of UNRWA” violates the Convention neglects Israel’s evidence that a number of UNRWA employees took an active part in the 7 October attacks and over a thousand have direct links to Hamas or other terrorist groups, the tunnel shaft near an UNRWA school leading to a Hamas military intelligence tunnel passing under UNRWA Headquarters and supplied with electricity by it, weapons in numerous UNRWA facilities, and Hamas commandeering UNRWA supplies; fourteen named States have suspended contributions, and OIOS and an independent review are examining the agency, with which Israel is in dialogue (paras. 39-41; see UNRWA). On evidence: South Africa relies heavily on UN and third-party documents that cannot be said to constitute sufficient evidence of reliable quality, citing the Court in Armed Activities (DRC v. Uganda), Reparations (2022) — such reports count only “to the extent that they are of probative value and are corroborated, if necessary, by other credible sources”, and their value depends on methodology and research; South Africa’s materials are assertions or opinions, unverified, without Israel’s involvement, frequently relying on Hamas sources or those subject to Hamas intimidation and untested adversarially (paras. 42-43). Israel stands by the information it presented on 12 January against an advocacy-linked report cited by South African officials (para. 44).
  • Section 4, The requirements for modification the existing provisional measures are not met [heading as printed], paras. 45-61 (PDF p.12-16). Modification requires, under Article 76(1) — “some change in the situation justifies such revocation or modification” — both a change in the situation since the previous decision and that the change justifies the modification, and a fresh request must also be “based on new facts” under Article 75(3); South Africa appears to accept both frameworks (paras. 45-47). Hostilities continue as in January; not every development in an ongoing conflict is a change, or requests could be made daily; a change must materially change the considerations underlying the original decision (paras. 48-49). The change South Africa claims is in essence a present severe shortage of food, but South Africa acknowledges the January Order had already taken account of and quoted food-insecurity material (Order paras. 47-48), and its Application, appended Request and hearing statements made essentially identical food-security allegations (paras. 50-51). Its UNCTAD citation does not support the claim that deaths from malnutrition are predicted to increase exponentially rather than linearly: the report concerns economic recovery prospects and does not state there have been deaths due to malnutrition (para. 52). The claims that starvation is “a direct result of the deliberate acts and omissions of Israel” and that Israel creates a “creation of a hostile, inoperable environment for aid agencies” are rejected (para. 53); the material is not qualitatively different, so the first requirement fails (para. 54). The second also fails: for the first proposed measure the only justification is the unsupported exponential-deaths prediction, and the Court already declined the materially identical original request that Israel immediately suspend its military operations; no explanation at all is given for the second and third measures; the fourth adds nothing explained to the existing fourth measure, “[t]he 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” (Order para. 86(4)); and no change is shown to justify a further, “open” report when the Court chose a single report after one month and Israel provided it on time (paras. 55-60). The indicated measures already cover the Gaza hostilities as a whole; the request is an improper attempt to relitigate what the Court has twice decided (para. 61).
  • Section 5, The terms of the proposed provisional measures are wholly inappropriate, paras. 62-80 (PDF p.16-21). First proposed measure: “[a]ll 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” (request para. 17(1)). Only Israel is a party to the proceedings; measures can bind only parties, not non-party States, States not party to the Convention or with an Article IX reservation, or non-State entities (Statute Article 34(1); Bosnia and Herzegovina v. Yugoslavia, Order of 13 September 1993, para. 40), so in effect it would bind only Israel, is materially identical to the original suspension measure the Court did not grant, would contradict Israel’s inherent and inalienable right and obligation to defend itself, would use provisional measures “as a sword, not a shield”, and its hostage-release obligation, not binding Hamas, would apply only to Israel — “This is unthinkable” (paras. 63-67). Second and third proposed measures, addressed to all Parties to the Genocide Convention (request para. 17(2)-(3), quoted at para. 68), likewise could bind only Israel and add nothing to the January measures at para. 86(1)-(3); South Africa does not explain the difference in wording, and Israel speculates they seem intended to influence separate Court proceedings in which neither State is involved (paras. 68-70). Fourth proposed measure (request para. 17(4), quoted in full at para. 71): paragraph (a) again requires suspension of military operations; paragraph (b), lifting the blockade, relates to the naval blockade, undertaken in accordance with IHL to prevent weapons and reinforcements reaching organized armed groups — the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident called it a legitimate security measure, and the Turkel Commission is also cited — and already in place in January, while supplies enter by land, air and sea; paragraph (c) repeats the fifth measure requested in January, which the Court declined, and seeks an implied merits finding of unlawful obstruction; the chapeau and paragraphs (c) and (d) add nothing to the existing fourth measure, and Israel imposes no limits on the amount of aid that can be transferred into Gaza (paras. 71-74). Fifth proposed measure, an “open” report within one month (request para. 17(5)): it would be otiose if the others are not ordered, and an open report is contrary to the Court’s practice of refraining from publishing such reports; the demand seeks a different standard for Israel and to play “to the gallery” (paras. 75-76). Conclusion: the request hinges on misrepresentation and seeks to have the Court micromanage “the conduct of hostilities in Gaza” and to demonstrate solidarity with South Africa’s ally Hamas (para. 77, which dates the Order “26 January 2026” as printed — see Open questions); Israel reaffirms its commitments under the Convention, IHL and the Order, and its sympathy with Gaza civilians’ difficulties, and respectfully submits the Court should refuse the request and indicate no further measures (paras. 77-80).

Key passages

  • “wholly unfounded in fact and law, morally repugnant, and represent an abuse both of the Genocide Convention and of the Court itself” (PDF p.1, para. 1, of South Africa’s request and Application)
  • “a constant barrage of documentation” (PDF p.2, para. 8, of South Africa’s filings)
  • “handled with an iron first” (PDF p.5, para. 20, Hamas’s reported threat to Palestinians who cooperate with Israel on convoy security)
  • “patently absurd” (PDF p.10, para. 37, of South Africa’s allegations against Israel’s humanitarian record)
  • “as a sword, not a shield” (PDF p.18, para. 66, of South Africa’s use of provisional measures)
  • “This is unthinkable” (PDF p.18, para. 67, of a hostage-release obligation binding only Israel)
  • “to the gallery” (PDF p.21, para. 76, in “seeks to play to the gallery”, of South Africa’s demand for an open report)

Evidence the work relies on

  • The Order of 26 January 2024 (paras. 84, 85, 86, 86(4), 86(6), 47-48 and 11(5)), the Court’s decision and Press Release No. 2024/16 of 16 February 2024, and Israel’s Report of 26 February 2024 — all as presented in the observations (PDF p.1-2, p.14, p.16).
  • South Africa’s Application (paras. 144 and 144(1), and the food-security paragraphs listed at footnote 65), its requests of 12 February 2024 (paras. 2, 7) and of 6 March 2024 (paras. 1, 2, 6-17, 19-21, 27), and its Observations of 11 March 2024 on Israel’s Report — as quoted or cited, not reproduced (PDF p.1-2, p.13-19).
  • The Rules of Court, Articles 75(1), 75(3) and 76(1), and the Statute, Articles 34(1) and IX of the Convention by reference; the modification case law at footnotes 58-59 and 61 (Armenia v. Azerbaijan orders of 12 October 2022, 6 July 2023 and 17 November 2023; Costa Rica v. Nicaragua / Nicaragua v. Costa Rica, 16 July 2013; Timor-Leste v. Australia, 22 April 2015; Bosnia and Herzegovina v. Yugoslavia, orders of 8 April and 13 September 1993), and Armed Activities (DRC v. Uganda), Reparations, Judgment (2022), paras. 152, 154 and 215, on the evidentiary value of UN reports (PDF p.12-13).
  • Israel’s factual sources for Section 2: the IDF Spokesperson’s examination of the 29 February incident (8 March 2024) and IDF Southern Command preliminary inquiry; COGAT’s website data and tweets (26 February, 3 March 2024); CENTCOM tweets (10 and 13 March 2024) and President Biden’s State of the Union remarks (8 March 2024); the UNOPS joint statement on the maritime corridor (12 March, cited in footnote 19 with the year 2014 as printed); government press releases and news reports from Reuters, the New York Times, the Times of Israel, CNN, JNS, DubaiEye, WAM and NL Times (PDF p.4-9).
  • For UNRWA: the Wall Street Journal (29 January 2024) and Washington Post (16 February 2024) reports, IDF Media Center (10 February 2024), Tab 3 of Israel’s Judge’s Folder and Ms. Raguan’s statement in CR 2024/2 at para. 62, the fourteen States’ suspension statements at footnotes 39-52, and UNRWA’s official statements of 8 February 2024 on the OIOS investigation and independent review (PDF p.10-11).
  • For the naval blockade: the Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Gaza Flotilla Incident (September 2011), p. 4 and pp. 38-45, and the Turkel Commission Report (6 February 2013), p. 111, as cited at footnote 89 (PDF p.20).
  • UNCTAD, Preliminary Assessment of the Economic Impact of the Destruction in Gaza and Prospects for Economic Recovery (31 January 2024), pp. 4 and 16 — cited to show what it does not say about deaths from malnutrition (footnote 67, PDF p.14).

Analysis

A responsive pleading in two registers. Its legal core (Sections 4-5) is narrow and procedural: a two-condition reading of Article 76(1) plus the Article 75(3) new-facts rule, an argument that food insecurity was already decided in January so nothing is qualitatively new, and a parties-only reading of provisional measures drawn from the 1993 Bosnia order — it does not re-argue jurisdiction, plausibility or the merits, which it reserves. Its factual core (Sections 2-3) is a dated, footnoted catalogue of aid measures in the two weeks after Israel’s Report, presented as disproof of genocidal intent by conduct; the figures are Israel’s and its cited official and press sources’, the events South Africa relies on are present only as Israel characterises or quotes them, and the determinative findings on the 29 February incident are expressly still pending in the filing’s own account. The Court’s answer is in its Order of 28 March 2024, which treated the same request as a modification request and found the change Israel here denies.

People, organizations, places and events

Israel, South Africa, Hamas, International Court of Justice, UNRWA, COGAT, World Food Programme, Sigrid Kaag, Gaza, Rafah, Gaza City, Flour Massacre

Concepts

Genocide Convention, Provisional measures, Famine, South Africa v. Israel (Genocide Convention)

How it relates to other sources

Open questions

  • Para. 77 dates the Order “26 January 2026” as printed, where every other reference in the filing, and the Order itself, is to 26 January 2024; the reading is confirmed in the original PDF and is recorded as printed, not corrected.
  • As-printed slips recorded in the reading notes and not corrected: “Word Food Programme” for World Food Programme (para. 26, PDF p.8); “United Arabs Emirates” (para. 24, PDF p.7); the UNOPS joint statement dated “(12 March 2014)” in footnote 19 (PDF p.6); “massage to those” for message in footnote 17 (PDF p.6); vaccine spellings “Hemophiles”, “Diptheria” and “Perussis” (para. 33, PDF p.9); “Nassar Hospital” for the hospital named Nasser elsewhere in the wiki (paras. 32, 34); and the Section 4 heading “MODIFICATION THE EXISTING” without “OF” (PDF p.12).
  • Footnote 55 cites “CR 2024/12” for Mr. Sarooshi’s statement for the United Kingdom in Armed Activities (DRC v. Uganda); the verbatim-record numbering is as printed and is not explained in the filing.
  • South Africa’s Request of 6 March 2024, its Observations of 11 March 2024 on Israel’s Report, and Israel’s Report of 26 February 2024 are all cited but not reproduced; their own texts are not in this file.

Coverage

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