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Observations of the State of Israel on South Africa's Urgent Request for Additional Measures under Article 75(1) of the Rules of Court dated 12 February 2024

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aliasesIsrael observations on South Africa's request for additional measures, February 2024

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Summary

Israel asks the Court to reject South Africa’s 12 February 2024 “urgent request for additional measures”, made after the Order of 26 January 2024 and directed at a possible Rafah operation: a party cannot request measures under Rules Article 75(1), which is for the Court acting proprio motu; the Article 76(1) condition of a change in the situation is not met; the measures already indicated cover the hostilities in Gaza as a whole; and the request is, in Israel’s words, a renewed attempt to relitigate, to have the Court micro-manage hostilities governed by IHL, and to protect Hamas (Observations of the State of Israel on South Africa’s Urgent Request for Additional Measures under Article 75(1) of the Rules of Court dated 12 February 2024, PDF p.1-3).

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 February 2024. 3 PDF pages, about 1,453 words; 15 numbered paragraphs and 5 footnotes; no signature or date line appears in the text. The observations answer South Africa’s request of 12 February 2024, whose own text is not in this file.

Section by section

  • Paras. 1-4 (PDF p.1). Israel regrets that South Africa “seeks once again to misuse the Court’s provisional measures procedure” by “a highly peculiar and improper request” referencing Article 75(1). Its principled position, placed on record: the Application of 29 December 2023 is “wholly unfounded in fact and law, morally repugnant, and represents an abuse both of the Genocide Convention and of the Court itself” (para. 2). Its commitment to international law including the Genocide Convention and IHL is unwavering and independent of the proceedings (para. 3). The observations are without prejudice to jurisdiction, admissibility and the merits, the Order having reaffirmed that provisional measures “in no way prejudges” them (para. 4; footnote 1: Order para. 84, see also paras. 15, 30, 62).
  • Paras. 5-7 (PDF p.1). Timing: the request came less than three weeks after the Order and shortly before Israel’s report under the Order was due. A request under Article 75(1) is “a contradiction in terms”, since that provision concerns the Court indicating measures proprio motu, not at a party’s request. Invoking inapplicable 75(1) rather than Article 76(1) suggests South Africa knows the 76(1) condition — “some change in the situation [that] justifies such revocation or modification” — is not satisfied.
  • Paras. 8-10 (PDF p.1-2). In the original request and January hearing South Africa argued for measures the Court did not indicate, principally one to curtail Israel’s right and obligation to defend itself and secure release of over 130 hostages still held by Hamas. The Court indicated measures covering the ongoing hostilities in Gaza as a whole, emphasizing that “all parties to the conflict in the Gaza Strip are bound by international humanitarian law” and calling for “the immediate and unconditional release” of the hostages (footnote 2: Order para. 85). The new request seeks to relitigate, through a truncated process in which South Africa “alarmingly sought to deprive Israel of the right to be heard”, what was decided after a two-day hearing, with no change since — citing Armenia v. Azerbaijan (Orders of 6 July 2023, para. 16, and 12 October 2022, paras. 11-12, footnote 3) — and nothing shows the indicated measures are no longer sufficient.
  • Paras. 11-13 (PDF p.2-3). No “significant development in the situation in Gaza” (South Africa’s phrase) has occurred. On Rafah: depicting the limited operation on the night of 11 February 2024, directed at military targets and enabling release of two hostages — Fernando Merman, aged 60, and Luis Har, aged 70 — after over four months in captivity, as an “unprecedented military offensive” (South Africa’s request, para. 7, footnote 4) is “one outrageous distortion”. South Africa omits Hamas’s refusal to release the hostages and the ongoing negotiations toward a release and humanitarian pause. South Africa itself cites the Prime Minister’s Office announcement that a potential Rafah operation would target Hamas battalions and requires plans concerning protection of civilians (its request, para. 2, footnote 5), in line with Israel’s IHL commitment to minimize civilian harm against Hamas’s strategy of maximizing it and using Palestinian civilians and civilian objects as shields. The reference to “the unprecedented military offensive against Rafah” which “in fact has not happened” shows an intention to abuse the Convention, have the Court “micro-manage” hostilities governed by IHL, and use provisional measures “as a sword, rather than a shield” to protect “South Africa’s longtime ally Hamas, a genocidal terrorist organization”, from Israel’s defence and pursuit of over 130 hostages.
  • Paras. 14-15 (PDF p.3). The LaGrand reference does not help South Africa: there measures were indicated precisely where none were already in place. No legal or factual basis exists for modifying the 26 January Order or granting additional measures; Israel respectfully submits the request should be rejected.

Key passages

  • “wholly unfounded in fact and law, morally repugnant, and represents an abuse both of the Genocide Convention and of the Court itself” (PDF p.1, para. 2, of South Africa’s Application)
  • “a contradiction in terms” (PDF p.1, para. 6, of a party request under Article 75(1))
  • “as a sword, rather than a shield” (PDF p.3, para. 13, of South Africa’s use of provisional measures)

Evidence the work relies on

  • The Rules of Court, Articles 75(1) and 76(1); the Order of 26 January 2024 (paras. 84, 85 and 15, 30, 62); Armenia v. Azerbaijan orders of 12 October 2022 and 6 July 2023; the LaGrand case as characterised in para. 14; South Africa’s request of 12 February 2024 (paras. 2 and 7 as cited); and the Prime Minister’s Office announcement on Rafah as cited in that request — all as presented in the observations (PDF p.1-3).

Analysis

A short responsive pleading whose argument is procedural first — wrong rule invoked, no changed situation, matter already decided for the whole of the Gaza hostilities — and characterising second: it does not engage the merits beyond restating Israel’s positions on the Application, its IHL commitment and Hamas. Its Rafah facts (the 11 February operation and the two hostages released) are asserted by Israel; South Africa’s request, which it answers, is not reproduced except in the phrases it quotes.

People, organizations, places and events

Israel, South Africa, Hamas, International Court of Justice, Gaza, Rafah

Concepts

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

How it relates to other sources

Open questions

  • South Africa’s 12 February 2024 request itself has not been ingested, so its “significant development” claim and its Rafah account can be checked only against the phrases quoted here.
  • The file carries no filing date or signature in its text; the 15 February 2024 date in published comes from the ICJ file identifier in the URL.

Coverage

PDF p.1-3 of 3, read in full

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