The official full text of South Africa's application instituting proceedings against Israel's Genocide" - The Claims of South Africa
I. THE CLAIMS OF SOUTH AFRICA
1. Based on the above, as well as the further evidence to be presented over the course of these proceedings, South Africa considers 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, including Articles I, III, IV, V and VI, read in conjunction with Article II. Those violations of the Genocide Convention include, but are not limited to:
514 UN OCHA, Gaza Strip: States are obliged
to prevent crimes
against humanity and genocide, UN Committee stresses
(21 December 2023), https://www.ohchr.org/en/press-releases/2023/12/gaza-strip-states-are-obliged-prevent-crimes-against- humanity-and-genocide (emphasis added).
Under CERD's Early Warning and Urgent Action
(‘EWUA’) procedure, CERD has
extensive expertise in compiling indicators relevant to the prevention of genocide; in 2015 it issued a Declaration on the
Prevention of Genocide which recalled this work in its preamble: see CERD, Declaration on the Prevention of Genocide (CRD/C/66/1)
(17 October 2005), https://www.ohchr.org/sites/default/files/Documents/HRBodies/CERD/declaration_genocide.doc.
515 See e.g., Organisation of Islamic
Cooperation (‘OIC’), Final Communiqué of
the extraordinary open-ended meeting of
the OIC Executive Committee at the
level of Foreign Ministers on the brutal Israeli military aggression against
the Palestinian people (18 October 2023), https://www.oic-oci.org/topic/?t_id=39767&t_ref=26705&lan=en; OIC, OIC Condemns the Massacre Committed by the Israeli Occupation in
Jabalia Camp (1 November 2023), https://www.oic- oci.org/topic/?t_id=39849&ref=26728&lan=en; OIC, OIC Strongly Condemns
Incursion into Gaza City Al-Shifa
Hospital and Continued Israeli Aggression against the Palestinian People
(15 November 2023), https://www.oic- oci.org/topic/?t_id=39936&ref=26759&lan=en; OIC, OIC Strongly Condemns
the Successive Massacres
Committed by the Israeli Occupation against the
Palestinian People (18 November 2023), https://www.oic- oci.org/topic/?t_id=39945&ref=26762&lan=en.
516 UN Meetings Coverage, 9498th Meeting, SC/15518 (8 December
2023), https://press.un.org/en/2023/sc15518.doc.htm. 517 Fédération Internationale pour les Droits Humains (‘FIDH’), Resolution on Israel’s unfolding crime of
genocide and other crimes in Gaza and against the Palestinian People (12
December 2023), https://www.fidh.org/IMG/pdf/fidh_resolution_on_israel_s_unfolding_crime_of_genocide_and_other_crimes_in_gaza_and_ against_the_palestinian_people.pdf; International Commission of Jurists, Gaza/Palestine: States have a Duty to
Prevent Genocide (17 November 2023), https://www.icj.org/gaza-occupied-palestinian-territory-states-have-a-duty-to-prevent- genocide/.
518 Al Haq, Al Mezan Center, and PCHR, Palestinian Human Rights Organisations call on ICC to issue arrest warrants against Israeli leaders for
genocide and incitement to genocide (9 November 2023), https://www.alhaq.org/advocacy/22138.html.
519 Palestinian Human Rights Organizations Council, PHROC Calls on the State of Palestine and Third States
to Intervene Taking Concrete
Measures and Legal Action to Prevent Genocide in Gaza (14 November 2023), https://www.alhaq.org/cached_uploads/download/2023/11/15/briefing-note-genocide-third-state-responsibility-14- november-2023-1700041879.pdf .
(b) committing genocide in
violation of Article III (a);
(c) conspiring to commit
genocide in violation of Article III (b);
(d) direct and public incitement
to commit genocide in violation of Article III
(c);
(e) attempting to commit
genocide in violation of Article III (d);
(f)
complicity in genocide in violation of Article III (e);
(g) failing to
punish genocide, conspiracy to commit genocide, direct and public incitement to
genocide, attempted genocide and complicity in genocide, in violation of
Articles I, III, IV and VI;
(h) failing to
enact the necessary legislation to give effect to the provisions of the
Genocide Convention and to provide effective penalties for persons guilty
of genocide, conspiracy to commit
genocide, incitement to genocide, attempted genocide, and complicity in
genocide, in violation of Article V; and
(i)
failing to allow and/or directly or indirectly impeding the investigation
by competent international bodies or fact-finding missions of genocidal acts
committed against Palestinians in Gaza, including those Palestinians removed by
Israeli State agents or forces to Israel, as a necessary and corollary
obligation pursuant to Articles I, III, IV, V and VI.
II. THE RELIEF SOUGHT
2.
While reserving the right to revise, supplement or
amend this Application, and subject to the presentation
to the Court of the relevant evidence and legal arguments, South Africa
respectfully requests the Court to adjudge and
declare:
(1)
that the Republic of South Africa and the State of Israel each have a duty to act in
accordance with their obligations under the Convention on the Prevention and
Punishment of the Crime of Genocide, in relation to the members of the Palestinian group, to take all reasonable measures within their
power to prevent genocide; and
(2)
that the State of Israel:
(a)
has breached and continues to breach its obligations
under the Genocide Convention, in particular the
obligations provided under Article I, read in conjunction with Article II, and Articles III (a), III (b), III (c), III
(d), III (e), IV, V and VI;
(b)
must cease forthwith any acts and measures in breach
of those obligations, including such acts or measures which would be capable of
killing or continuing to kill Palestinians, or causing or continuing to cause
serious bodily or mental harm to Palestinians
or deliberately inflicting on their group,
or continuing to inflict on their
group, conditions of life calculated to bring about its physical
destruction in whole or in part, and fully respect its obligations under the
Genocide Convention, in particular the obligations provided under Articles I,
III (a), III (b), III (c), III (d), III (e), IV, V and VI;
(c)
must ensure that persons committing genocide,
conspiring to commit genocide, directly and publicly inciting genocide,
attempting to commit genocide and complicit in genocide contrary to Articles I,
III (a), III (b), III (c), III (d)
and III (e) are punished by a
competent national or international tribunal, as required by Articles I, IV, V and VI;
(d)
to that end and in furtherance of those obligations
arising under Articles I, IV, V and VI, must collect and conserve evidence and
ensure, allow and/or not inhibit directly or indirectly the collection and
conservation of evidence of
genocidal acts committed against Palestinians in Gaza, including such members
of the group displaced from Gaza;
(e)
must perform the obligations of reparation in the
interest of Palestinian victims, including but not limited to allowing the safe
and dignified return of forcibly displaced and/or abducted Palestinians to
their homes, respect for their full human rights and protection against further discrimination, persecution, and
other related acts, and provide for the reconstruction of what it has destroyed
in Gaza, consistent with the obligation to prevent genocide under Article I; and
(f)
must offer assurances and guarantees of non-repetition
of violations of the Genocide Convention, in particular the obligations provided under Articles I, III (a), III (b), III
(c), III (d), III (e), IV, V and VI.
III.
REQUEST FOR PROVISIONAL MEASURES
3.
In accordance with Article 41 of the Statute of the Court, and Articles 73, 74 and 75 of the Rules of Court, South Africa requests that the Court
indicate provisional measures. In light of the nature of the rights in issue, as well as the ongoing,
extreme and irreparable harm being suffered
by Palestinians in Gaza,
South Africa requests that the Court address this request as a matter of extreme urgency.
4.
This Application describes an exceptionally brutal
military campaign by Israel in Gaza, which is extensive and ongoing, and which
Israel intends to intensify further still.520
5.
Israel has engaged in and failed to prevent or to punish acts and measures which are
genocidal, constituting flagrant violations of
Israel’s obligations under Articles I, III
(a), III (b), III (c), III
(d), III (e), IV, V and VI of
the Genocide Convention. As further
evidenced in the materials set out
in the application, the acts of genocide in question in breach of Articles II
(a), II (b), II (c) and II (d), in particular, that collectively target the
Palestinians in Gaza include, inter alia:
(1)
killing
Palestinians in Gaza, including a large proportion of women and children —
estimated to account for around 70 per cent of the more than 21,110 fatalities
— some of whom appear to have been summarily
executed;
520 Statement by Israeli Prime Minister to Likud Party,
25 December 2023: Jeremy Sharon,
"After rare visit to Gaza, Netanyahu says war ‘not close to
being over’", The Times of Israel (25
December 2023), https://www.timesofisrael.com/liveblog_entry/after-gaza-visit-netanyahu-says-war-not-close-to-being-over/.
(2)
causing
serious mental and bodily harm to Palestinians in Gaza, including
through maiming, psychological trauma, and inhuman and degrading treatment;
(3)
causing the
forced evacuation and displacement of around 85 per cent of Palestinians in Gaza — including children, the elderly and infirm, and the sick and wounded
— as well as
causing the large scale destruction of Palestinian homes, villages, refugee
camps, towns and entire areas in Gaza, precluding the return of a significant proportion of the Palestinian people
to their homes;
(4)
causing
widespread hunger, dehydration and starvation to besieged Palestinians in Gaza, through
the impeding of sufficient humanitarian assistance, the cutting off of
sufficient water, food, fuel and electricity, and the destruction of bakeries,
mills, agricultural lands and other methods of production and sustenance;
(5)
failing to
provide and restricting the provision of adequate
shelter, clothes, hygiene or sanitation to Palestinians in Gaza, including the 1.9 million internally displaced
people, compelled by Israel’s actions to live in dangerous situations of
squalor, alongside the routine targeting and destruction of places of shelter and the killing and wounding of
those sheltering, including women, children, the disabled and the elderly;
(6)
failing to
provide for or to ensure the provision for the medical needs of Palestinians in
Gaza, including those medical needs created by other genocidal
acts causing serious bodily harm, including through directly attacking
Palestinian hospitals, ambulances and other healthcare facilities in Gaza,
killing Palestinian doctors, medics and nurses, including the most qualified
medics in Gaza, and destroying and disabling Gaza’s medical system; and
(7)
destroying
Palestinian life in Gaza, through the destruction of Gaza’s universities,
schools, courts, public buildings, public records, stores, libraries, churches,
mosques, roads, infrastructure, utilities and other facilities necessary to the
sustained life of Palestinians in
Gaza as a group, alongside the killing of entire family groups — erasing entire oral histories
in Gaza
— and the killing of prominent
and distinguished members of society.
(8)
Imposing
measures intended to prevent Palestinian births in Gaza, through the reproductive violence inflicted on Palestinian women, newborn babies,
infants, and children.
6.
Provisional measures are necessary in this case to
protect against further, severe and irreparable harm to the rights of the
Palestinian people under the Genocide Convention, which continue to be violated
with impunity. South Africa requests that the Court indicate provisional
measures to protect and preserve those rights as well as its own rights under the Convention, and to prevent any
aggravation or extension of the dispute, pending the determination of the
merits of the issues raised by the Application.
7.
South Africa notes that there are other related
matters that do not directly engage obligations under the Genocide Convention
and are therefore not properly within the Court’s jurisdiction in this case,
including the urgent return of Israeli and other hostages. South Africa
considers that the provisional
measures requested are nevertheless consistent with and capable of assisting
towards the progression and resolution of those matters.
A. Compelling Circumstances Require the Indication of Provisional Measures
8.
As detailed above, contrary to Article I of the
Convention, Israel has perpetrated and is perpetrating genocidal acts
identified in Article II. Israel,
its officials and/or agents, have acted with the intent to destroy Palestinians
in Gaza, part of a protected group under the Genocide Convention. The
compelling circumstances are set out in detail in the Application, and include that:
—
Nowhere is safe in Gaza.
—
Israel is dropping
‘dumb’ bombs and bombs weighing
up to 2,000 lbs (900 kgs) on one
of the most
densely populated places in the world.
—
Palestinians in Gaza are being killed at a rate of approximately one person every six
minutes.
—
At least 21,110 Palestinians have been killed to date
in Gaza, with a further estimated 7,780 are missing, presumed dead under the rubble.
—
An estimated 7,729 Palestinian children had already
been killed by 12 December 2023; at
least 4,700 other children and women are reported missing, presumed dead under
the rubble, leading UNICEF to describe Israel’s military attacks as a ‘war
against children’.
—
Hundreds of Palestinians in Gaza are being wounded
daily, many with life-changing and life-threatening injuries.
—
Besieged and bombed hospitals are no longer able to treat the sick and
wounded; only 13
of Gaza’s 36
hospitals are still functioning.
—
1.9 million Palestinians in Gaza — approximately 85
per cent of the population — have been forcibly displaced from their homes.
—
Palestinians in Gaza are being corralled into ever
smaller areas of Gaza, without
sufficient shelter, where they continue to be bombed by Israel.
—
Israel continues to prevent sufficient humanitarian
assistance to Palestinians in Gaza, including
preventing sufficient access to food, water, shelter,
medicine and medical
assistance.
—
Vulnerable Palestinians, including the sick and
infirm, children and expectant mothers are at particular risk.
—
Infectious diseases are spreading rapidly.
—
International experts are warning of
imminent mass starvation.
9.
Israel has also failed to prevent or to punish:
genocide, conspiracy to commit genocide, direct and public incitement to
genocide, attempted genocide and complicity in genocide, contrary to Articles
III and IV of the Genocide Convention.
10. Israel denies wrongdoing in relation to its military activities in Gaza and is resisting all calls by South Africa and by the broader international community to prevent and cease the commission of genocide. Instead of ceasing violations of the Genocide Convention, preventing such violations and punishing their perpetrators, Israel has continued, escalated and threatened further to escalate its military campaign. It is also destroying evidence of its wrongdoing: the mass demolition and clearance of vast areas of Gaza, and the prevention of the return of internally displaced Palestinians to their homes, raises serious concerns about the destruction of evidence and its effect on future investigation into crimes, including the gravest crimes under international law. Israel’s killing of large numbers of Palestinian journalists and media workers in Gaza — at least 82 to date, often alongside multiple members of their families — coupled with its attacks on Gaza’s telecommunications network, are hampering scrutiny of Israel’s actions against Palestinians in Gaza.521 So too is Israel’s continuing refusal to allow access to Gaza by fact-finders and foreign journalists, other than a limited number of journalists permitted to embed themselves with the Israeli army subject to restrictions and censorship of their reports. Palestinian NGOs and human rights defenders, themselves at risk of attack by the Israeli army, are not able to document in real time the unremitting acts of genocide and other violations of international law being committed by Israel.
B. The Prima Facie Jurisdiction
of the Court
11.
The Court is empowered to indicate provisional
measures “if the provisions relied on by the Applicant appear prima facie to afford a basis on which
its jurisdiction could be founded, but need not satisfy itself in a definitive
manner that it has jurisdiction as regards the merits of the case”.522
12.
As set out above, the jurisdiction of the Court is
founded on Article 36, para 1, of the Statute of
the Court and Article IX of the Genocide Convention. Article IX of Genocide Convention
provides:
“Disputes between the Contracting Parties relating to the interpretation,
application or fulfilment of the present Convention, including those relating
to the responsibility of a State for genocide
or for any of the other acts enumerated in article III, shall be
submitted to the International Court of Justice at the request of any of the
parties to the dispute.”
13.
South Africa and Israel are both United Nations Member
States and State parties to the Genocide Convention. Both have accepted
the jurisdiction of the Court under Article
IX of the Genocide
Convention without any reservation. They are consequently bound by it.
14. In order for this Court to determine whether it has prima facie jurisdiction in order to indicate provisional measures, the matters complained of must themselves be prima facie “capable of falling within the provisions of [the Convention]”, such that “the dispute is one which the Court has jurisdiction ratione materiae to entertain”.523 The case law of the Court establishes that a dispute is “a disagreement on a point of law or fact, a conflict of legal views or of interests” between parties.524 In order for a dispute to exist, “[i]t must be shown that the claim of one party is positively opposed by the other”.525 The two sides must “hold clearly opposite views concerning the question of the performance or non- performance of certain’ international obligations”.526 The existence of a dispute is “a matter for objective determination by the Court; it is a matter of substance, and not a question of form or
521 Amnesty, Israel/OPT: Civilians in
Gaza at unprecedented risk as Israel imposes communication black-out during
bombardment and expanding ground attacks (27
October 2023), https://www.amnesty.org/en/latest/news/2023/10/israel-opt- civilians-in-gaza-at-unprecedented-risk-as-israel-imposes-communication-black-out-during-bombardment-and-expanding- ground-attacks/.
522 The Gambia v. Myanmar, Provisional Measures, Order of 23 January
2020, p. 9, para. 16; and Allegations of Genocide
under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022,
I.C.J. Reports 2020, p. 10-11, para.
24 (hereafter ‘Ukraine v. Russian Federation,
Provisional Measures, Order of 16 March 2022’).
523 The Gambia v. Myanmar, Provisional Measures, Order
of 23 January 2020, p. 1, para. 20, citing Immunities and
Criminal Proceedings (Equatorial Guinea
v. France), Provisional Measures,
Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1159, para. 47.
524 Ukraine v. Russian Federation, Provisional
Measures, Order of 16 March 2022, p.
11, para. 28, quoting Mavrommatis
Palestine Concessions,
Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11.
525 Ibid, quoting
South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections,
Judgment,
I.C.J.
Reports 1962, p. 328.
526 Ibid, p.11-12, para 28, quoting Alleged Violations of Sovereign Rights
and Maritime Spaces
in the Caribbean Sea
(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J.
Reports 2016 (I),
p. 26, para. 50.
procedure”.527 For
the purposes of deciding whether there was a dispute between the Parties at the
time of the filing of the Application, the Court “takes into account in
particular any statements or documents exchanged between the Parties, as well
as any exchanges made in multilateral settings. In so doing, it pays special
attention to the author of the statement or document, their intended or actual addressee, and their content”.528
15.
For the purposes of the indication of provisional
measures, the Court is not required
to ascertain whether any violation of Israel’s obligations under the Genocide
Convention has occurred.529 Importantly, as previously held by the Court, “[s]uch a finding, which would
notably depend on the assessment of the existence of an intent to destroy, in
whole or in part, the group … [of Palestinians] as such, could be made by the
Court only at the stage of the
examination of the merits of the present case”.530 Instead, “[w]hat the Court
is required to do at the stage of making an order on provisional measures
is to establish whether the acts
complained of… are capable of falling within the provisions of the Genocide Convention”.531
The Court does not have to determine that all of the acts complained of are capable of falling within the provisions of the Convention. It suffices
that “at
least some of the acts alleged
… are capable of falling within the provisions of the Convention”.532
16. At least some of the acts alleged by South Africa are plainly “capable of falling within the provisions of the Convention”. They have been considered to be capable of falling within the provisions of the Convention by numerous States and United Nations experts and bodies, including the Committee on the Elimination of Racial Discrimination.533 Notably, they are plainly capable of falling within the provisions of Article II (a), II (b), II (c) and II (d) of the Convention, constituting as they do: (1) the killing of Palestinians in Gaza, (2) their serious bodily or mental harm, (3) the deliberate infliction of conditions of life calculated to bring about the destruction of Palestinians in Gaza, and (4) the imposition of measures intended to prevent births within the group. In relation to II (c), the Court has previously explained this as including “methods of physical destruction, other than killing, whereby the perpetrator ultimately seeks the death of the members of the group”.534 Citing jurisprudence from international tribunals, the Court held that “such methods of destruction include notably deprivation of food, medical care, shelter or clothing, as well as lack of hygiene, systematic expulsion from homes, or exhaustion as a result of excessive work or physical exertion.”535 Those international tribunals have also identified the following methods of destruction: “subjecting the group to a subsistence diet; failing to provide adequate medical care… and generally creating circumstances that would lead to a slow death such as the lack of proper food, water, shelter, clothing, sanitation”.536 This Court has also determined that forced mass displacement is capable of being considered a genocidal act.537 The materials relied on in
527 Ibid, p.13-14, para.
35, citing The Gambia
v. Myanmar, Provisional Measures,
Order of 23 January 2020, p. 12, para.
26. 528 Ibid, pp. 220-221, para. 35, citing The
Gambia v. Myanmar, Provisional
Measures, Order of 23 January 2020, p. 12, para. 26.
529 Ibid, p. 15, para. 43.
530 The
Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 14,
para. 30.
531 Ibid, p. 14, para. 30 (emphasis added);
see also Ukraine v. Russian Federation, Provisional Measures, Order of 16 March
2022, p. 15, para. 43.
532 The Gambia v. Myanmar, Provisional Measures, Order
of 23 January 2020, p. 14, para. 30 (emphasis added).
533 See
Section III. Facts, E. Recognition of Israel’s genocidal intent against
Palestinians in Gaza, supra.
534 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015, p. 70, para. 161.
535 Ibid, citing ICTY, Trial Chamber II,
Prosecutor v. Brđanin, Case No.
IT-99-36-T, Judgment (1 September 2004), para.
691 and Prosecutor v. Stakić,
Case No. IT-97-24-T, Judgment (31 July 2003), paras. 517-518.
536 ICTY, Appeals
Chamber, Prosecutor v. Zdravko
Tolimir, Case No. IT-05-88/2-A, Judgment
(8 April 2015),
p. 327, para. 740.
537 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment, I.C.J. Reports
2007, p. 123, para. 190 (‘Bosnia v. Serbia,
Judgment’).
this Application
constitute clear evidence of the creation by Israel of circumstances plainly
capable of constituting those methods of destruction.
17.
The evidence regarding the direct and public
incitement to commit genocide by Israeli State officials, politicians and
others — as set out above — and the failure by Israel to punish those
responsible, are also plainly capable of falling within the provisions of
Article III and IV of the Convention.
18.
“The above mentioned elements” serve to “establish prima facie the existence of a dispute between the Parties relating to the interpretation, application or
fulfilment of the Genocide Convention”.538 The dispute concerns Israel’s breaches of its
obligations under the Genocide Convention, including its failure to prevent and
its perpetration of genocide, and South Africa’s own obligations under the
Genocide Convention to prevent genocide, including by taking actions to
influence effectively the actions of persons likely to commit genocide.539 The Court has described the
nature of that dispute as follows: “[A] state’s obligations to prevent, and
corresponding duty to act, arise at the instant that the State learns of, or
should normally have learned of, the existence of a serious risk that genocide
will be committed. From that moment
onwards, if the State has available
to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably
suspected of harbouring specific intent (dolus
specialis), it is under a duty to make use of these means as the circumstances permit”.540
19.
The Court plainly has prima facie jurisdiction to indicate provisional measures in this
case as a consequence.
C. The Rights the Protection of Which Is Sought, their Plausible Character and the Link between such Rights and the Measures Requested
20.
The Court has “the power to indicate, if it considers
that circumstances so require, any provisional measures which ought to be taken
to preserve the respective rights of either party”, pursuant to Article 41 of
the Statute of the Court. The power
of the Court to indicate provisional measures “has as its object the preservation of the
respective rights claimed by the parties in a case, pending [the Court’s]
decision on the merits thereof”.541 It follows
that “the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by it to belong to either
party”.542 At this
stage of the proceedings, however, the Court is not called upon to determine
definitively whether the rights which South Africa seeks to protect exist; it need only decide whether it is
satisfied that the rights asserted by South Africa on the merits, and for which it is seeking protection, are “at least plausible”543
i.e. “grounded in a possible interpretation” of the Convention.544 Those rights are clearly plausible, having regard inter alia to the statements
of United Nations
experts and bodies asserting that there is at
538 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 14,
para. 31.
539 Bosnia v.
Serbia, Judgment, p. 221, para 430.
540 Ibid, p. 43 para 431.
541 The Gambia v. Myanmar, Provisional Measures, Order of 23 January
2020, p. 18, para. 43; and Ukraine v. Russian
Federation, Provisional Measures, Order of 16 March 2022, p. 223, para. 50.
542 Ibid.
543 The Gambia v. Myanmar, Provisional Measures, Order of 23 January
2020, p. 18, para. 43; and Application of the
International Convention on the Elimination of All Forms
of Racial Discrimination (Qatar v. United
Arab Emirates), Provisional Measures, Order of 23 July 2018,
I.C.J. Reports 2018, p.
422, para. 43 (hereafter ‘Qatar v. United Arab Emirates, Provisional Measures, Order of 23 July
2018.
544 Questions relating to the Obligation to Prosecute or Extradite (Belgium
v. Senegal), Provisional Measures, Order of 28
May 2009, I.C.J. Reports 2009, p. 152, para.
60 (emphasis added).
the very least a real risk of genocide — which risk gives rise to the
obligation to prevent genocide, pursuant to Article I of the Convention, which
is binding on both Israel and South Africa. It also gives rise to obligations
binding on Israel not to commit genocide, and to punish those who directly and
publicly incite to genocide.545
21.
For the Court to indicate one or more provisional measures, there must also be a link between
the rights the protection of which is sought and the provisional measure being requested.546 Such a link clearly exists
between the rights claimed by South Africa and the provisional measures
requested, which are directly linked to the rights which form the
subject-matter of the dispute.
22.
In relation to the nature of the rights asserted by South Africa under the Genocide
Convention, as recently recalled by the Court:
“In such a convention the contracting States do not have any interests of
their own; they merely have, one and all, a common interest,
namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of
this type one cannot speak of individual
advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between
rights and duties. The high ideals which inspired the Convention provide, by
virtue of the common will of the parties, the foundation and measure of all its
provisions.”547
23.
Having regard to their “shared values”, all the States
parties to the Genocide Convention thus have “a common interest to ensure that
acts of genocide are prevented and that, if they occur, their authors do not
enjoy impunity”.548 As
determined by the Court, “that common interest implies that the obligations in
question are owed by any State party to all the other States parties to the Convention”.549 As a consequence, the relevant
provisions of the Genocide Convention generate “obligations [which] may be
defined as ‘obligations erga omnes partes’
in the sense that each State party has an interest in compliance with them in
any given case”.550 Consequently,
as recently confirmed by the Court:
“It follows that any State party to the Genocide Convention, and not only
a specially affected State, may invoke the responsibility of another State
party with a view to ascertaining the alleged failure to comply with its
obligations erga omnes partes, and to
bring that failure to an end.”551
24.
South Africa seeks hereby, pursuant to that common
interest urgently to protect the rights of Palestinians in Gaza, as members of
a protected group under the Convention, including their right to exist as a
group and their right to be protected from acts of genocide and the risk
thereof, from conspiracy to commit genocide, from direct and public incitement
to commit genocide, from attempted genocide, and from complicity in genocide.
South Africa also seeks to protect the erga
omnes partes rights it has under the Genocide Convention as well as the erga omnes obligations it has to prevent
genocide, which mirror the erga omnes obligations of the Convention
with which it is entitled to seek
545 Bosnia
v. Serbia, Judgment, pp.
113-114, paras. 165-169.
546 The Gambia v. Myanmar, Provisional Measures, Order of 23 January
2020, p. 18, para. 44, citing Qatar v. United Arab Emirates, Provisional Measures, Order of 23 July 2018, p. 422, para. 44.
547 The Gambia v. Myanmar, Provisional
Measures, Order of 23 January
2020, p. 17, para. 41, quoting its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide, Advisory Opinion of 28 May 1951, I.C.J.
Reports 1951, p. 23 (hereafter ‘Advisory Opinion of 28 May 1951’).
548 Ibid.
549 Ibid.
550 Ibid, applying mutatis mutandis
Questions relating to the Obligation to Prosecute or Extradite (Belgium
v. Senegal), Judgment, I.C.J.
Reports 2012, p. 449, para. 68.
551 Ibid.
compliance by Israel, including Israel’s obligations not to commit
genocide, to prevent genocide, and to
punish genocide, including acts of genocide, conspiracy to commit genocide,
direct and public incitement to genocide, attempted genocide and complicity in
genocide against Palestinians. The Court has previously recognised “the
universal character both of the condemnation of genocide and of the co- operation required ‘in order to
liberate mankind from such an odious scourge’”.552
25.
For the purposes of
indicating provisional measures, the Court does not need to establish
definitively that Palestinians are at risk of
genocide, that they are being subjected to genocidal acts, or that Israel is otherwise breaching its
obligations under the Genocide Convention. Rather, it is sufficient that the
obligation of South Africa to act to prevent genocide, or the right of South
Africa to seek compliance by Israel with its obligations under the Convention
not to commit genocide, and to prevent and punish genocide and related
prohibited acts under the Convention, be “plausible”.553 Equally, there is no
requirement, before granting provisional measures, for the Court to ascertain
whether the existence of a genocidal intent is the only inference to be drawn from the material before the Court, as
this requirement would amount to the Court
making a determination on the merits. Notably, the fact that the genocidal acts
are occurring — and not being prevented or punished — in the course of an armed
conflict or in asserted response to an attack by an armed group, has no bearing
on whether the rights asserted by South Africa under the Genocide Convention
are “at least plausible”.554 The absence
of a prior determination of genocide by a court or fact-finding tribunal is
similarly no bar to the adjudication by this Court of an application under the
Genocide Convention, much less a request for the indication of provisional measures.555
26.
The facts and circumstances described in this
Application and request for provisional measures establish that the acts
complained of — which Israel has committed and is committing — are capable of being characterised at the very least as
plausibly “genocidal”. The requisite dolus
specialis can be deduced not
only from Israel’s conduct against Palestinians in Gaza, but also from clear,
repeated dehumanising statements by Israeli governmental and military officials
towards them. Indeed, they have been so characterised by numerous heads of
State and other State officials and representatives, as well as by a large
number of United Nations experts and various expert human rights organisations
and institutions who have repeatedly warned that Israel’s actions amount to or
risk the genocide of the Palestinian people.556 Consequently, the rights relied on by South Africa in
its request for the indication of provisional measures are at the very least
“plausible. Indeed, their protection coincides with the very object and
purposes of the Genocide Convention.
D. The
Risk of Irreparable Prejudice and Urgency
27.
The Court “has the power to
indicate provisional measures when irreparable prejudice could be
caused to
rights which are the subject of judicial proceedings or when the alleged
disregard of such
553 The Gambia v. Myanmar, Provisional Measures, Order
of 23 January 2020, p. 18, para. 43.
554 Ibid.
555 See Bosnia v. Serbia, Judgment, p. 120, para. 182: “State
responsibility can arise under the Convention for genocide and complicity, without an individual being convicted of the crime or an associated one”. As explained
by the Court: “Any other interpretation could
entail that there
would be no legal recourse
available under the Convention in some readily
conceivable circumstances: genocide has allegedly been committed within
a State by its leaders but they have not been brought to trial because, for instance, they are still very much in control
of the powers of the State including
the police, prosecution services and the courts
and there is no international penal tribunal able to exercise
jurisdiction over the alleged crimes”:
ibid, pp. 119- 120, para. 182.
rights may entail irreparable consequences”.557 In particular, the Court has the power to
indicate provisional measures “if there is urgency, in the sense that there is
a real and imminent risk that irreparable prejudice will be caused before the
Court gives its final decision”.558 As
the Court recently confirmed, “[t]he condition of urgency is met when the acts
susceptible of causing irreparable prejudice can ‘occur at any moment’ before
the Court makes a final decision on the case”.559
28.
For the purposes of its decision on a request for the
indication of provisional measures in a case involving allegations of
violations of the Genocide Convention, “[t]he Court is not called upon . . . to
establish the existence of breaches of the
Genocide Convention, but to determine whether the
circumstances require the indication
of provisional measures for the protection of rights under this instrument”,560 as “found to be plausible”.561 As held by the Court, this
does not require it to “make definitive findings of fact or of imputability”,
and “the right of each Party to . . . submit arguments in respect of the
merits, must remain unaffected by the Court’s decision” on the request for the
indication of provisional measures.562
29.
In assessing whether the condition of urgency is
satisfied in cases involving allegations of genocide in the course of an
ongoing conflict, the Court typically has regard to whether the population at
risk is particularly vulnerable, and the fragility of the overall situation,
including the likelihood and the risk of the re-occurrence of harm. The Court considers a civilian
population to be “extremely vulnerable” where the military operations have
“resulted in numerous civilian
deaths and injuries” and have “caused significant material damages, including
the destruction of buildings and infrastructure”, and where “[a]ttacks are
ongoing and are creating increasingly difficult living conditions for the
civilian population”.563 In
indicating provisional measures, the Court has considered the lack of access by many individuals to “the most
basic food-stuffs, potable water, electricity, essential medicines or heating”,564 and attempts by a “very large
number of people . . . to flee from the most affected cities under extremely
insecure conditions”.565 The Court
has also considered the following factors, raised by a United Nations General
Assembly Resolution, to be materially relevant in assessing whether the condition of urgency is satisfied in cases involving allegations
of genocide: “attacks on civilian facilities such as residences, schools and
hospitals, and of civilian casualties, including women, older persons, persons
with disabilities, and children”; the “scale” of military operations, including
their comparison with other conflicts, the “deteriorating humanitarian
situation” in a territory, and the “increasing number of internally displaced
persons and refugees in need of humanitarian assistance”.566 Similarly, the Court has had
regard to findings of a fact-finding mission, considering factors such as “the
systematic stripping of human rights”, “dehumanizing narratives and rhetoric”,
“methodical planning, “mass
557 The Gambia v. Myanmar, Provisional Measures, Order of 23 January
2020, p. 24, para. 64; and Ukraine v. Russian Federation, Provisional Measures,
Order of 16 March 2022, p. 226, para. 65, both citing Alleged Violations of the 1955 Treaty of Amity, Economic Relations,
and Consular Rights (Islamic Republic of Iran v. United States of America),
Provisional Measures, Order
of 3 October 2018, I.C.J.
Reports 2018, p.
645, para. 77.
558 The Gambia v. Myanmar, Provisional Measures, Order of 23 January
2020, p. 24, para. 65; see also Ukraine v. Russian Federation, Provisional Measures,
Order of 16 March 2022, p. 226, para. 66.
559 The Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020,
p. 24, para. 65; and Ukraine v. Russian
Federation, Provisional
Measures, Order of 16 March 2022, pp. 226-227, para. 66.
560 The Gambia v. Myanmar, Provisional Measures, Order
of 23 January 2020, pp. 24-25, para. 66.
561 Ukraine
v. Russian Federation, Provisional Measures, Order of 16 March 2022, p. 227,
para. 67.
562 Bosnia v. Serbia, Provisional Measures, Order of 8
April 1993, I.C.J. Reports 1993, p. 22, para. 44.
563 Ukraine
v. Russian Federation, Provisional Measures, Order of 16 March 2022, p. 228,
para. 75.
564 Ibid.
565 Ibid; see also The Gambia
v. Myanmar, Provisional Measures, Order of 23 January
2020, p. 27, para. 71; and Request
for Interpretation of the Judgment
of 15 June 1962 in the Case concerning the Temple of Preah Vihear
(Cambodia v.
Thailand), Provisional Measures,
Order of 18 July 2011, I.C.J. Reports 2011, p. 550, para. 53.
566 Ukraine
v. Russian Federation, Provisional Measures, Order of 16 March 2022, pp.
228-229, para. 76.
killing”, “mass
displacement”, “mass fear”, “overwhelming levels of brutality, combined with
the physical destruction of the home of the targeted population, in every sense
and on every level”.567
30.
Notably, as the Court has underscored, States parties
to the Genocide Convention have “expressly confirmed their willingness to
consider genocide as a crime under international law which they must prevent
and punish independently of the context ‘of peace’ or ‘of war’ in which it takes place”.568 Consequently, a State
remains bound by the obligations incumbent upon it as a State party to the
Genocide Convention, regardless of “the fact that there may be an ongoing . . . conflict between armed
groups and the . . . military”.569 Such a
context “does not stand in the way of the Court’s assessment of the existence of a real and imminent risk of irreparable
prejudice to the rights protected under the Convention”.570
31.
Where past violations have occurred, the Court has
found provisional measures appropriate when it is “not inconceivable” that they
might occur again.571 The Court
has also ordered provisional measures in circumstances that were “unstable and
could rapidly change”, with “ongoing tension and the absence of an overall
settlement to the conflict” that meant the affected group remained vulnerable.572 Consequently, any ceasefire
to be agreed or any other acts by Israel that could be perceived as capable of ameliorating
the circumstances for Palestinians in the short term would not have a
dispositive effect and would impact neither on the merit nor the urgency of South Africa’s arguments.
32.
There is a clear risk of irreparable prejudice to the
rights of the Palestinians and to South Africa’s own rights under the
Genocide Convention. The utmost urgency of the situation is self-evident:
Palestinians have suffered and are suffering irreparable harm from genocidal
acts by Israel in violation of Article II of
the Genocide Convention, and from Israel’s other violations of the
Convention, including its
failure to prevent or punish direct and public incitement to genocide. Should
these violations of the Genocide Convention go unchecked, there
is not only a risk but a certainty of further significant and irreparable loss
of life and property, serious injury and an ever-deepening humanitarian crisis.
The opportunity to collect and preserve evidence for the merits stage of the proceedings would also be seriously undermined, if not lost entirely.
33.
As of the date of this application, an estimated
21,110 Palestinians have been killed in Gaza, including at least 7,729
children. 55,243 Palestinians have been injured, including at least 8,663
children, of whom over 1,000 are amputees, disabled for life. Approximately 70
per cent of those killed are said to be women and children. One Palestinian
child in Gaza has been killed approximately every 15 minutes since Israel
commenced military action in Gaza on 7 October 2023. Thousands more are missing
under the rubble. 61 hospitals and health care facilities in Gaza have been
damaged or destroyed; many have been
placed under siege or have been subjected to forced evacuation, and only 13 hospitals are still partially functional,
weighed under by mass overcrowding. 311 health workers have been killed, many
while working, meaning that many of the wounded,
including seriously injured children, cannot access
healthcare. An estimated 5,500 women are having to give birth in unsafe
568 Ibid, pp. 27-28, para. 74, citing Application
of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J.
Reports 1996, p. 615, para. 31. 569
Ibid, p. 27, para. 74. The conflict
raised as being in issue in that case was an internal
armed conflict.
570 Ibid, p. 28, para. 74.
571 Immunities
and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 December
2016,
I.C.J.
Reports 2016, p. 1169, para. 89.
572 See Application of the International Convention on the Elimination of All Forms
of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures,
Order of 15 October 2008, I.C.J. Reports
2008, p. 396, para. 143.
conditions every month. Babies are dying from preventable causes: in
addition to disease and malnutrition, premature babies have died due to lack of
fuel to supply hospital generators; others have been found decomposing in their
hospital cots, medical staff having
been forced to evacuate. Over 60 per cent of homes in Gaza have been damaged or
destroyed. Vast swathes of Gaza have been destroyed, including entire villages,
refugee camps, towns and cities that have been or are deliberately being
rendered uninhabitable. Israel has made a humanitarian response impossible with
constant bombardment, including of safe routes. 1.9 million people, nearly 85
per cent of the population, are
displaced, including elderly, wounded and disabled people, living in makeshift
tents, lacking any or adequate sanitation and water, in United Nations schools
and with relatives. The entire population is facing starvation: 93 per cent of
the population in Gaza is facing crisis levels of hunger, with more than one in
four facing “catastrophic conditions” — with death imminent. Against that
background, the Israeli Prime Minister asserted on 25 December 2023: “We are
not stopping, we are continuing to fight and we are deepening the fighting in
the coming days, and this will be a long battle and it is not close to being over”.573 The circumstances could not be more urgent.
34.
The 2.3 million Palestinians in Gaza, including over a
million children, are extremely vulnerable. There is a grave threat to their
existence. They are in urgent and severe need of the Court’s protection. With each passing day that Israel’s
military attacks continue, further significant loss of life and property is
being caused, and grave human rights violations are being committed. There can
be no doubt that the requirements for the indication of provisional measures
are satisfied here.
E. Provisional Measures Requested
35.
On the basis of the facts set forth above, South
Africa, as a State party to the Convention on the Prevention and Punishment of
the Crime of Genocide, respectfully requests the Court, as a matter of extreme urgency, pending the Court’s
determination of this case on the merits, to indicate the following provisional
measures in relation to the Palestinian people as a group protected by the Genocide Convention. These measures
are directly linked to the rights that form the subject matter of South Africa’s dispute with Israel:
(1)
The State of Israel shall immediately suspend its military operations
in and against Gaza.
(2)
The State of Israel shall ensure that any military or
irregular armed units which may be directed, supported or influenced by it, as
well as any organisations and persons which may be subject to its control, direction or influence, take no steps
in furtherance of the military operations referred to point (1) above.
(3)
The Republic of South Africa and the State of Israel shall each, in accordance with
their obligations under the Convention on the Prevention and Punishment of the
Crime of Genocide, in relation to the Palestinian people, take all reasonable
measures within their power to prevent genocide.
(4) The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people as a
573 Statement by Israeli Prime Minister to Likud Party, 25 December 2023:
Jeremy Sharon, “After rare visit to Gaza, Netanyahu says war ‘not close to
being over’”, The Times of Israel (25
December 2023), https://www.timesofisrael.com/liveblog_entry/after-gaza-visit-netanyahu-says-war-not-close-to-being-over/ (emphasis added).
group protected by the Convention on the
Prevention and Punishment of the Crime of
Genocide, desist from the commission of any and all acts within the
scope of Article II of the Convention, in particular:
(a)
killing members of the group;
(b)
causing serious bodily or mental harm to the members of the group;
(c)
deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction in whole or in part; and
(d)
imposing measures intended to prevent births within the group.
(5)
The State of Israel
shall, pursuant to point (4)(c) above, in relation to Palestinians, desist
from, and take all measures within its power including the rescinding of
relevant orders, of restrictions
and/or of prohibitions to prevent:
(a)
the expulsion and forced displacement from their homes;
(b)
the deprivation of:
(i)
access to adequate food and water;
(ii) access to
humanitarian assistance, including access to adequate fuel, shelter, clothes,
hygiene and sanitation;
(iii)
medical supplies and assistance; and
(c)
the destruction of Palestinian life in
Gaza.
(6)
The State of Israel shall, in relation to
Palestinians, ensure that its military, as well as any irregular armed units or
individuals which may be directed, supported or otherwise influenced by it and
any organizations and persons which may be subject to its control, direction or
influence, do not commit any acts described in (4) and (5) above, or engage in direct and public incitement
to commit genocide, conspiracy to commit genocide, attempt to commit
genocide, or complicity in genocide, and
insofar as they do engage therein, that steps are taken towards their
punishment pursuant to Articles I, II, III
and IV of the Convention on the Prevention and Punishment of the Crime of Genocide.
(7)
The State of Israel shall take effective measures to
prevent the destruction and ensure the preservation of evidence related to
allegations of acts within the scope of Article II of the Convention on the
Prevention and Punishment of the Crime of Genocide; to that end, the State of Israel shall not act to deny
or otherwise restrict access by fact-finding
missions, international mandates and other bodies to Gaza to assist in ensuring
the preservation and retention of said evidence.
(8)
The State of Israel shall submit a report to the Court
on all measures taken to give effect to this Order within one week, as from the date of
this Order, and thereafter at such regular intervals as the Court shall order, until a final decision on the case is rendered by the Court.
(9)
The State of Israel shall refrain from any action and
shall ensure that no action is taken which might aggravate or extend the
dispute before the Court or make it more difficult to resolve.
36. The provisional measures requested are directly linked to the rights which form the subject- matter of the dispute.574 In particular, the first six provisional measures have been requested to ensure
574 The
Gambia v. Myanmar, Provisional Measures, Order of 23 January 2020, p. 18,
para. 44.
Israel's compliance with
its obligations under the Genocide Convention not to engage in genocide, and to
prevent and to punish genocide, as well as to uphold and reaffırm the rights
and obligations of South Africa to prevent genocide, and to protect Palestinians
in Gaza from destruction. The last three provisional measures requested are
aimed at protecting the integrity ofthe proceedings before the Court and South
Africa's right to have its claim fairly adjudicated, including by ensuring the
preservation of evidence.
37.
South Africa
respectfully requests that this request for provisional measures be considered
urgently, at the Court's earliest possible opportunity, including the
scheduling ofa hearing in person or remotely by video link in the week of 1
January 2024.
38.
South Africa
reserves its right to request additional provisional measures to prevent
irreparable harın to the rights at issue in this case, and/or to prevent
further aggravation of the dispute between the Parties, should they becoıne
necessary, during the course of these proceedings.
IV.
RESERVATION OF RIGHTS
39.
South Africa
reserves the right to revise, supplement or amend the terıns ofthis
Application, as well as the grounds invoked.
V.
APPOINTMENT OF AGENT
40.
South Africa has
designated as its Agent His Excellency Ambassador Vusimuzi Phileınon Madonsela,
Ambassador Extraordinary and Plenipotentiary of the Republic of South Africa to
the Kingdom ofthe Netherlands.
41.
Pursuant to Article
40, paragraph 1, of the Rules of Court, all cornınunications relating to this
case should be sent to:
Embassy of the Republic of South Africa 40
Wassenaarseweg
2596 CJ
The Hague
The Netherlands
The Hague,
(Signed)
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