Why South Africa has asked ICJ to invoke 'provisional measures' against Israel

New Delhi, Jan 14

The International Court of Justice (ICJ) may take several years to reach a final verdict in the genocide case against Israel, which is why South Africa has requested the world's highest court to order provisional measures to protect the Palestinian people in Gaza from further harm.

South Africa has also sought Israel's compliance with the Genocide Convention and attempted to safeguard its ability to have the case fairly adjudicated, Human Rights Watch said.

South Africa has asked the ICJ to issue these measures “as a matter of extreme urgency", arguing that Palestinians in Gaza are in “urgent and severe need of the Court’s protection”.

On December 29, 2023, South Africa had filed the case with the court alleging that Israel is violating the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, Human Rights Watch said.

South Africa contends that Israel has violated the Genocide Convention by committing genocide against Palestinians in Gaza, and by failing to prevent it, including by not holding senior Israeli officials and others accountable for their direct and public incitement to genocide.

The case is not a criminal proceeding against individuals but seeks a legal determination of state responsibility for genocide.

Among the provisional measures sought are for Israel to immediately suspend its military operations in Gaza and abide by its obligations under the Genocide Convention.

South Africa also seeks measures to prevent the destruction and ensure the preservation of any evidence related to the underlying case – including by giving fact-finding missions, international mandates, and other bodies access to Gaza, Human Rights Watch said.

South Africa also asked the court to require Israel to report to it on steps taken to carry out a provisional measures order within a week of its issuance and then at regular intervals until the court issues its final ruling.

Israel’s Foreign Affairs Ministry, in a published statement on December 29, 2023, described South Africa’s application as “blood libel” and that the claim “lacks both a factual and a legal basis and constitutes despicable and contemptuous exploitation of the Court.”

US National Security Council spokesman described South Africa’s application as “meritless, counterproductive, and completely without any basis in fact whatsoever”.

US State Department spokesman Matthew Miller said separately that Washington had not “at this point seen acts that constitute genocide” and that the ICJ case was “not a productive step at this time”, Human Rights Watch said.

South Africa, which ratified the Genocide Convention in 1998, brought its case under article 9 of the convention, which allows for disputes between parties to be submitted to the ICJ.

The court previously confirmed that all member states of the convention have a duty to prevent and to punish genocide.

Israel has been a party to the Genocide Convention since 1951.

South Africa, together with Bangladesh, Bolivia, the Comoros and Djibouti, has also referred the Palestine situation to the International Criminal Court prosecutor in November 2023.

South Africa asked the prosecutor, Karim Khan, to investigate the crime of genocide among other grave abuses in Palestine with a view to charging the individuals responsible, Human Rights Watch said.