Authored By: Soohemba Agatha Aker
Nigerian Law School
INTRODUCTION
The case Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) represents a seminal moment in international law. Initiated by South Africa on 29 December 2023, the case alleges that Israel’s military operations in Gaza during and after October 2023 amount to genocide under the 1948 Genocide Convention. Before reaching the merits, the International Court of Justice (ICJ) has issued provisional measures, requests for immediate action to prevent irreparable harm. This ongoing dispute raises fundamental questions about genocide thresholds, the legal weight of provisional measures and the enforceability of international court orders.
BACKGROUND
Following the Hamas attacks of 7 October 2023, Israel launched extensive military operations across Gaza. Civilian casualties reportedly exceeded 50,000, with widespread destruction of infrastructure and the proliferation of humanitarian crisis. Concerned by these developments, South Africa filed its application to the ICJ under Article IX of the Genocide Convention on 29 December 2023. South Africa argues that Israel has violated its duty to prevent genocide as defined in Articles II and I of the Convention. Additionally, it sought provisional measures to halt ongoing harm.
The case occurs amid growing international concern regarding adherence to international humanitarian and human rights law. Post-2023, ICJ rulings have had to deal with questions of genocide, occupation and humanitarian crises. South Africa’s decision to prosecute this case accentuates its broader campaign through the Hague Group to bolster global justice mechanisms, especially in contexts perceived as instances of non-compliance with international law.
FACTS OF THE CASE
South Africa’s application to the International Court of Justice (ICJ) stems from allegations that Israel’s military operations in Gaza, conducted since October 2023, amount to acts of genocide as defined under Article II of the Genocide Convention. The application outlines a range of facts that, taken collectively are said to establish a plausible basis for the claim of the occurrences of genocidal acts.
At the heart of the application is the unprecedented scale of civilian casualties and displacement in Gaza. Thousands of Palestinian civilians, including women and children, have been killed, while many more have been injured or displaced. The destruction extends beyond human life: hospitals, schools, water systems, residential buildings and places of worship have been decimated. The physical infrastructure of Gaza has been so extensively damaged that it has led to what South Africa characterises as “conditions of life calculated to bring about the destruction of the group,” invoking language directly from Article II(c) of the Convention.
South Africa also highlights the collapse of essential services in the region. The population of Gaza has been subjected to acute shortages of food, water, fuel and medical supplies. Humanitarian agencies have reported famine-like conditions, with children dying from malnutrition and dehydration. Gaza’s sole power plant ceased to function early in the conflict due to blockades and Israel has been accused of severely restricting humanitarian aid, including medical evacuations and the delivery of emergency supplies. These actions, it is argued, reflect a calculated infliction of destructive conditions upon a specific population.
Moreso, the application references several public statements made by Israeli officials that allegedly indicate genocidal intent. These statements include language that, according to South Africa, dehumanises Palestinians, characterises all Gazans as complicit in terrorism and calls for the complete elimination of certain communities. While the existence of genocidal intent is difficult to prove, South Africa contends that such statements must be taken seriously in light of the surrounding conduct and their potential to incite further atrocities.
Finally, South Africa alleges that Israel has actively hindered or denied the entry of humanitarian convoys, restricted border crossings and targeted UN infrastructure. This, it argues, is part of a broader strategy not only to punish but to incapacitate the Palestinian population in Gaza, thus further supporting the claim that the conduct satisfies the legal threshold of genocide, at least on a provisional basis.
Taken together, these factual allegations relating to mass death and injury, deprivation of life-sustaining conditions, incitement and denial of humanitarian relief form the evidential foundation of South Africa’s case. The Court’s provisional measures decisions in January, March and May 2024 indicate that the ICJ found these allegations sufficiently plausible and urgent to warrant interim legal protection, pending a final determination on the merits.
Major procedural events include:
- South Africa’s request for provisional measures lodged with the Court alongside its application.
- Public hearings on urgent requests held in January 2024; hearings on modifications followed in March and May 2024.
ISSUES
This case raises the following legal issues:
- Jurisdiction and standing: Does the ICJ have jurisdiction under Article IX of the Genocide Convention, and does South Africa have legal standing?
- Threshold for provisional measures: Are the allegations sufficiently plausible and urgent to justify binding provisional measures?
- Content of provisional measures: Should the ICJ order Israel to halt military operations or only to protect against imminent genocidal acts?
- Legal force of provisional measures: What obligations does Israel have to comply, and what are ramifications for non-compliance?
- Evidence and burden of truth: How much evidence is required at the provisional stage, especially for establishing special intent?
ARGUMENTS
South Africa argues that the scale of death and destruction in Gaza meets criteria under Article II of the Genocide Convention: intentional killing, inflicting conditions of life calculated to bring about destruction, and preventing births. It asserts that Israeli statements constitute incitement, satisfying Article III(c). Additionally, the State invoked erga omnes partes obligations and Article I, establishing its legal interest and the suitability of provisional measures to prevent irreparable harm
Israel contends that its military operations are legitimate acts of self-defence under Article 51 of the UN Charter, aimed at neutralizing Hamas. The Israeli government denies genocidal intent and claims that civilian casualties result from Hamas tactics. Israel argues that the requested measures especially halting all military activity—are disproportionate and could undermine its security.
JUDGEMENT
Order of 26 January 2024
The ICJ found prima facie jurisdiction and standing. By a vote of 15 – 2, it issued provisional measures requiring Israel to take “all measures within its power” to prevent genocide, ensure its military refrains from prohibited acts, punish incitement, allow humanitarian assistance, preserve evidence, and submit compliance reports within one month. Judges Sebutinde and Barak dissented on certain measures.
Order of 28 March 2024
In response to South Africa’s request, the Court ordered additional measures: Israel must ensure humanitarian access in cooperation with the UN and avoid obstructing aid delivery adopted unanimously except Judge ad hoc Barak dissenting.
Order of 24 May 2024
The Court reaffirmed prior orders and required additional specificity: Israel must immediately halt its offensive in Rafah and guarantee access for UN investigative bodies. The order passed 13 – 2, with recalcitrant dissent from Sebutinde and Barak.
The Court thus adopted a progressive, nuanced approach, eschewing a blanket cessation of operations in favour of targeted measures to mitigate genocide risk while noting imposed astronomical risks in Rafah.
SIGNIFICANCE
This case is among the most consequential ICJ rulings of recent decades. It advances the jurisprudential understanding of genocide thresholds and shows that flags of intent can be raised at early stages. By issuing binding provisional measures, the Court underscores its capacity to shape real-time humanitarian legal frameworks, especially in urban warfare zones. It reinvigorates the Genocide Convention’s preventive mandate and sets precedent for diplomatic alliances such as the Hague Group.
By balancing state sovereignty and humanitarian obligations, the ICJ navigates technical and political sensitivities halting acts, not states. The 24 May order to gives structure to provisional jurisprudence and enhances normative clarity.
CRITICISM
Critics caution that the Court may be overextending its mandate, stepping into military decision-making. Legal scholars on forums like Reddit warned that provisional measures based on plausible risks may dilute the Genocide Convention’s gravity and create politicised “lawfare” .
There has also been concern over enforcement. ICJ orders rely on compliance or Security Council action, meaning non-compliance remains a risk. Indeed, the ICJ’s reliance on statements of intent and humanitarian projections, rather than concrete on-ground verification, has been criticised as speculative. Dissenting judges also emphasised this speculative nature and the constraints on Israel’s self-defence claims.
CONCLUSION
South Africa v. Israel presents a legal milestone in genocide prevention and provisional measures jurisprudence. By issuing layered, evidence-based interim orders, the Court acknowledges the delicate balance between state security and international humanitarian obligations. While the final merits judgment remains pending, the case demonstrates the ICJ’s potential to influence live conflicts and shape state behaviour.
It also confirms that genocide must not wait for final declarationsmand that judicial tools like provisional measures can be effective safeguards. Yet, the case also demonstrates the limitations of international adjudication, especially concerning enforceability and balancing geopolitics with legal tenets. As the conflict continues and the final merits hearing approaches, the case will shape future doctrines on state responsibility, preventive justice and the real-world impact of international courts.
Table of Cases And Laws Cited (OSCOLA Format):
- Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel), ICJ, Provisional Measures, 192 (26 January 2024); (28 March 2024); (24 May 2024).
- Bosnia and Herzegovina v Serbia and Montenegro (Judgment) [2007] ICJ Rep 43.
- International Covenant on Civil and Political Rights (adopted 16 Dec 1966, entered into force 23 Mar 1976).
- Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 Dec 1948, entered into force 12 Jan 1951).
- Armed Activities on the Territory of the Congo (DRC v Uganda) (Judgment) [2005] ICJ Rep 168.
- Israel–South Africa relations (Wikipedia, accessed June 2025).
Sources Consulted:
- International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel), Orders of 26 January, 28 March, and 24 May 2024 – https://www.icj-cij.org
- United Nations, Convention on the Prevention and Punishment of the Crime of Genocide (1948) – https://www.un.org/en/genocideprevention/documents/Genocide%20Convention.pdf
- United Nations, Statute of the International Court of Justice – https://www.icj-cij.org/en/statute
- UN Human Rights Committee, General Comment No. 36: The Right to Life (Article 6, ICCPR) – https://tbinternet.ohchr.org
- Associated Press, “South Africa accuses Israel of genocide at ICJ” – https://apnews.com/article/south-africa-israel-gaza-icj-genocide
- The Guardian, “ICJ orders Israel to halt Rafah offensive” (24 May 2024) – https://www.theguardian.com/world/2024/may/24/icj-orders-israel-to-halt-rafah-offensive
- Reuters, “South Africa submits genocide claim to UN court” (29 Dec 2023) – https://www.reuters.com/world/africa/south-africa-submits-claim-icj-israel-genocide-2023-12-29
- EJIL: Talk!, “The Gaza Genocide Case at the ICJ: Provisional Measures and Legal Reasoning” – https://www.ejiltalk.org
- Diakonia International Humanitarian Law Centre, “Legal Implications of the Gaza Genocide Allegations” – https://www.diakonia.se
- UN Office for the Coordination of Humanitarian Affairs (OCHA), Gaza Humanitarian Situation Reports – https://www.ochaopt.org
- Human Rights Watch, “ICJ Orders Israel to Allow Humanitarian Aid in Gaza” (29 March 2024) – https://www.hrw.org/news/2024/03/29/icj-orders-israel-allow-humanitarian-aid-gaza
