The ICJ’s Second Order on Provisional Measures in the South Africa v. Israel Case

As the hostilities between Israel and armed groups in Gaza persist and the levels of violence in the West Bank, including East Jerusalem, remain high, the Diakonia IHL Centre provides regular updates regarding legal aspects of the evolving situation. This update covers the second order on provisional measures rendered by the International Court of Justice (ICJ) in the South Africa v. Israel case.  

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On 28 March 2024, following a request by South Africa, the ICJ issued a second order on provisional measures in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). On 26 January 2024, the Court had already rendered an order indicating a range of provisional measures relating to the case. On 12 February 2024, South Africa called upon the Court to exercise its power to indicate new provisional measures, but the Court found that the situation at the time did not warrant the indication of additional provisional measures.  

The following is a brief overview of the Court’s order of 28 March 2024, together with the declarations and the separate opinions of the individual judges.  

Introduction 

On 6 March 2024, South Africa submitted an ‘urgent request for the indication of additional provisional measures and the modification of the Court’s prior provisional order and decision’ pursuant to Article 41 of the Statute of the ICJ and Articles 75(1-3) and 76(1) of the Rules of the Court. Article 41 of the Statute establishes the Court’s power to indicate provisional measures, while Articles 75(1-3) and 76(1) of the Rules of the Court further detail its power to indicate (new) provisional measures or to revoke or modify them, respectively. 

In its application, South Africa requested ‘the indication, clarification, and/or modification’ of five provisional measures which, unlike in its first application, did not only address Israel but more broadly included measures directed at the parties to the conflict and the parties to the Genocide Convention.  

First, South Africa requested a measure to halt all hostilities, and to release all hostages and detainees, addressing ‘all participants in the conflict’. Second, it requested measures addressing the parties to the Genocide Convention, including that they ‘refrain from any action, and in particular any armed action or support thereof, that might prejudice the right of the Palestinians in Gaza to be protected from acts of genocide’. Third, it requested a measure specifying how Israel should deal with the conditions of life in Gaza, including by means of, once again, ‘suspending its military operations in Gaza’ and demanding that Israel ensure the provision of basic supplies and services. Lastly, South Africa requested that Israel submit an open report on all measures taken. 

Since its last order, the composition of the Court has changed; four out of sixteen permanent judges have been replaced. One of the newly appointed judges is Judge Tladi of South Africa, and so Judge ad hoc Moseneke, appointed by South Africa, is no longer sitting on the bench. Judge ad hoc Barak, appointed by Israel, on the other hand, is still on the case.  

The provisional measures order issued by the Court is binding upon the parties to the proceedings. Israel has an international legal obligation to comply with both orders of 26 January and 28 March, implementing all provisional measures indicated therein. 

Conditions for the modification of provisional measures 

Considering the request as one of modification of provisional measures indicated, the Court had to establish that a) there was a change in the situation justifying the requested modifications as per Article 76 of the Rules of the Court and b) the general conditions for the indication of provisional measures as per Article 41 of the Statute of the Court were met.  

In assessing whether there was a change in the situation justifying modifications to the provisional measures indicated, the Court recalled its previous observations on the gravity of the humanitarian situation in Gaza and noted that the then already catastrophic conditions in Gaza have deteriorated further ‘in particular in view of the prolonged and widespread deprivation of food and other basic necessities to which the Palestinians in the Gaza Strip have been subjected’ (para. 18). It then concluded that the ‘exceptionally grave’ developments – including, notably, that famine is no longer only a risk but a reality – constitute a change in the situation and that the provisional measures indicated earlier fail to address the consequences arising therefrom, justifying their modification (paras. 21-23). Judge Nolte, writing separately, further elaborated on the application of this criterion and concluded that while the Court had already considered the risk that the situation could further deteriorate on 26 January 2024, the current circumstances go beyond what was then expected to potentially materialise and, as such, ‘constitute a qualitative change of the situation which is exceptional’ (Declaration of Judge Nolte, para. 6). 

The Court further affirmed that that the general conditions for the indication of provisional measures had been met. In support of this conclusion, the Court referenced its findings in the order of 26 January 2024 as well as subsequently published reports by United Nations (UN) agencies that establish  a risk of irreparable prejudice and urgency (paras. 24-40).  

Measures indicated  

In light of the above, the Court concluded that ‘the circumstances of the case require it to modify its decision concerning provisional measures indicated in the Order of 26 January 2024’ (para. 41). However, as it did in its order of 26 January 2024, the Court indicated measures that differed from those requested by South Africa, based on its power under Article 75(2) of the Rules of Court (paras. 42-43).  

After reaffirming the provisional measures indicated in its order of 26 January 2024 (vote of fourteen in favour, two against), the Court added the following thereto: 

The State of Israel shall, in conformity with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in view of the worsening conditions of life faced by Palestinians in Gaza, in particular the spread of famine and starvation:  

(a) 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 (unanimous vote);  

(b) 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 on the Prevention and Punishment of the Crime of Genocide, including by preventing, through any action, the delivery of urgently needed humanitarian assistance (vote of fifteen in favour, one against);  

[T]he State of Israel shall submit a report to the Court on all measures taken to give effect to this Order, within one month as from the date of this Order (vote of fifteen in favour, one against).  

Notably, Judge Sebutinde, who had voted against all provisional measures indicated on 26 January 2024, voted in favour of the new provisional measures. Judge ad hoc Barak voted against two of the three new provisional measures. 

Differences between the measures requested and measures indicated 

First, the Court did not indicate measures addressing parties other than those to the ongoing proceedings, explaining that the decisions of the Court are binding only between the latter (para. 44). The first three measures requested – concerning parties to the conflict and parties to the Genocide Convention – were thus rejected. The Court nevertheless repeated its call for the ‘immediate and unconditional release’ of the hostages taken by Hamas and other armed groups (para. 50). 

Second, the Court indicated a measure relating to the provision of basic services and humanitarian assistance, but did not specifically order that Israel immediately suspend its military operations in Gaza, lift its blockade, or in general that it rescind all measures and practices that obstruct access to humanitarian relief and basic services, as was requested by South Africa. However, the Court did specifically order that Israel must ‘[increase] the capacity and number of land crossing points and [maintain] them open for as long as necessary’ to ensure ‘the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance’. In its previous order, the Court had merely demanded that Israel take ‘immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance’ (emphasis added) without further specifying what types of measures ought to be taken. Also, more generally, ensuring implies a wider range of obligations than only enabling, and, as such, reflects better Israel’s positive obligations as an occupying power, which bears the primary responsibility to ensure access to humanitarian relief (Joint Declaration of Judges Xue, Brant, Gómez Robledo and Tladi, paras. 2 and 7).  

The Court further stressed, on its own initiative, that these measures should be taken immediately and ‘in full co-operation with the United Nations’. This addition by the Court is crucial since UNRWA is a UN agency, whose operations continue to be obstructed by the Israeli authorities. 

Third, the Court ordered, on its own initiative, that Israel ensure ‘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 [Genocide Convention]’. This is comparable to the second provisional measure indicated in the order of 26 January 2024; however, this time, the Court further elaborated that such unlawful acts include ‘preventing, through any action, the delivery of urgently needed humanitarian assistance’, possibly implying that the Israeli military currently engages in such unlawful conduct.  

Fourth, the Court ordered that Israel submit a report on the measures taken to give effect to the order, but not an ‘open’ report as was requested by South Africa. It is at the discretion of the Court to make public such reports submitted by parties, which it has not done to date.   

The question of suspension of military operations by Israel 

The question of a legally mandated suspension of operations by Israel warrants further attention. While the Court once again refrained from indicating a measure to this effect as per South Africa’s request, this time it did take note of the calls for a ceasefire or a suspension of military operations as a prerequisite for addressing the catastrophic humanitarian situation in Gaza and of UN Security Council resolution 2728 demanding an immediate ceasefire. It had already been suggested that ‘a lull in hostilities between the parties may in fact be practically required to even comply with the measures ordered’ on 26 January 2024. Now, declarations by seven judges demonstrate that a significant proportion of the bench in fact considers that a halt of the operations is imperative for Israel’s compliance with its international obligations, including those stemming from the order. 

Indeed, in his declaration, President Salam explained that the new measures ‘can only take full effect’ if the ceasefire demanded by the Security Council is respected by all parties (Declaration of President Salam, para. 11). Judge Yusuf clarified that ‘the only effective way in which Israel can meet its obligations under the Convention is to suspend its military operations to allow for the delivery of aid and to bring to an end the relentless destruction and death caused by it at the expense of the right of existence of the Palestinian population’ (Declaration of Judge Yusuf, para. 10). In their joint declaration, Judges Xue, Brant, Gómez Robledo, and Tladi were more straightforward and stated that they ‘deeply regret that this measure does not directly and explicitly order Israel to suspend its military operations for the purpose of addressing the current catastrophic humanitarian situation in Gaza’ as ‘suspension of military operations, including [the] planned military operation in Rafah, under the circumstances, appears indispensable for any meaningful implementation of the provisional measures indicated’ (Joint Declaration of Judges Xue, Brant, Gómez Robledo and Tladi, paras. 1 and 7). Lastly, Judge Charlesworth stated that ‘the Court should have made it explicit that Israel is required to suspend its military operations in the Gaza Strip, precisely because this is the only way to ensure that basic services and humanitarian assistance reach the Palestinian population’ (Declaration of Judge Charlesworth, para. 7). 

The separate opinion of Judge ad hoc Barak 

Significantly, Judge ad hoc Barak voted against the reaffirmation of the provisional measures indicated on 26 January 2024 as he considered them to be ‘unwarranted’ (Separate Opinion of Judge ad hoc Barak, para. 4). He only voted in favour of one of the new provisional measures, that Israel take measures to ensure the provision of basic services and humanitarian assistance, which he clarified was for ‘moral reasons’ (para. 30). His explanation, which references solely Article 23 of the Fourth Geneva Convention (para. 30) implies that he does not consider Israel to be bound by the law of occupation in Gaza, contrary to the view of at least four other judges (Xue, Brant, Gómez Robledo, and Tladi).  

In his separate opinion, Judge ad hoc Barak criticised the Court for going beyond its jurisdiction by ‘regulating the conduct of hostilities’ and claimed that its ‘reasoning … is far removed from the Genocide Convention and based primarily on humanitarian considerations’ (para. 6). He continued to state that ‘the Court is intervening in an armed conflict between Hamas and Israel, but only Israel is bound by its decisions’, which creates a ‘structural imbalance’, and went as far as to say that ‘part of [the] Order shields Hamas while imposing interim obligations on Israel’ (para. 7). He enumerated the absence of a change in the situation justifying modification of previous provisional measures; absence of the required conditions for the indication of provisional measures in general; and inadequate and problematic treatment of evidence by the Court as the ‘three fatal flaws in the Order’ (para. 11). 

Cover photo: Members of the Court on the second day of hearings, Friday 12 January 2024. UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ. All rights reserved.