Authored By: Yusra Al Badawi
Middle East University
Case Citation and Basic Information
Full Case Name: Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)
Citation: General List No. 192
Court: International Court of Justice (ICJ)
Dates of Orders: 26 January 2024; 28 March 2024; 24 May 2024
Bench Composition (May Order): President Salam; Vice-President Sebutinde; Judges Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi; Judge ad hoc Barak.
2. Introduction
South Africa v. Israel is a landmark case at the International Court of Justice (ICJ), representing the first invocation of the 1948 Genocide Convention during an active, high-intensity conflict involving a global power’s self-defense. Initiated by South Africa on 29 December 2023, the suit addresses the Gaza crisis and relies on the erga omnes partes doctrine, allowing states without a direct link to the conflict to seek enforcement of non-derogable obligations. The ICJ has taken an interventionist role, issuing three sets of provisional measures within five months: general preventative measures (January), specific directives on famine (March), and orders regarding the Rafah offensive (May 2024).
3. Facts of the Case
Israel’s “Operation Swords of Iron,” launched after the 7 October 2023 attacks by Hamas, led to South Africa filing a case alleging genocide under the 1948 Convention, contextualizing the response within the broader occupation. By January 2024, the military campaign had caused tens of thousands of deaths, displaced 1.9 million Palestinians (85% of the population), and systematically destroyed infrastructure, including 70% of housing and most healthcare facilities. South Africa argued the deprivation of essentials showed a “special intent” to destroy the group.
The humanitarian crisis worsened significantly in 2024. By March, the Court noted the “catastrophic” conditions had become a manifest famine, with children dying from malnutrition. In May, Israel expanded operations into Rafah, a designated “safe zone” for over a million displaced persons. The 7 May 2024 offensive closed the Rafah crossing and led to the further displacement of 800,000 people to the ill-equipped Al-Mawasi area, shifting the situation from “catastrophic” to “disastrous” and prompting the Court’s directive to halt specific military activities.
Evidence from UN agencies and NGOs highlighted the near-total collapse of the healthcare system and rapid disease spread due to scarcity of fuel, electricity, and clean water. South Africa claimed these conditions were deliberately inflicted. Israel countered by citing efforts to coordinate aid and establish field hospitals, blaming the suffering on Hamas’s strategy of embedding military assets in civilian centers.
4. Legal Issues
The Court was tasked with resolving several complex and contentious questions of law:
Prima Facie Jurisdiction: Does a “dispute” exist under Article IX of the Genocide Convention, and does the Court have the requisite jurisdiction to hear the claims?
Locus Standi: Does South Africa have the legal standing to bring the case based on obligations erga omnes partes?
Plausibility of Rights: Are the rights claimed by South Africa—namely the protection of Palestinians from genocide—”plausible” under the ICJ Statute?
Urgency and Irreparable Harm: Is there a real and imminent risk of irreparable prejudice to these rights before a final judgment can be rendered?
Modification Standard: Do the onset of famine in March and the Rafah offensive in May constitute a “change in the situation” under Article 76 of the Rules of Court justifying new measures?
Operational Limits: Does the Court possess the authority to order the cessation of specific military operations under the Genocide Convention?
Arguments Presented
5.1 Petitioner’s (South Africa) Contentions
South Africa alleged Israel’s military conduct showed clear genocidal intent (dolus specialis), citing mass civilian casualties, destruction of cultural sites, and deliberate creation of destructive conditions. They argued that public statements by high-ranking Israeli officials, calling Palestinians “human animals” and for Gaza to be “erase[d],” constituted direct incitement to genocide. Later requests alleged Israel was using “starvation as a method of warfare” and that the Rafah offensive would annihilate the last refuge. South Africa asserted its right to act under the erga omnes partes doctrine to uphold the prohibition against genocide.
Stressing the “plausibility” standard for provisional measures, South Africa argued it did not need to prove genocide yet, only that the protected rights were plausible. Evidence included the “total siege” and targeting of civil defense workers, suggesting the entire group was targeted. They requested an immediate, unconditional Israeli withdrawal, deeming it the only effective measure to halt the genocidal process.
5.2 Respondent’s (Israel) Contentions
Israel dismissed the claims as “factually and legally incoherent,” maintaining its operations were lawful self-defense under Article 51 of the UN Charter. They claimed adherence to IHL via evacuation orders, safe zones, and facilitating aid, while blaming Hamas for civilian suffering due to their use of human shields and aid diversion. Israel characterized the humanitarian crisis as a tragic consequence of urban warfare, not genocidal intent. The Rafah operation, they asserted, was a military necessity to rescue hostages and dismantle Hamas, which Israel deemed a genocidal organization.
Israel argued that a total ceasefire was legally impermissible as it would negate its right to self-defense. They contested the Court’s jurisdiction due to South Africa’s failure to engage in a diplomatic dispute beforehand. Furthermore, Israel argued that its actions—such as allowing food and medicine entry—were inconsistent with plausible genocidal intent.
6. Court’s Reasoning and Analysis
6.1 Jurisdictional and Standing Thresholds
The Court established prima facie jurisdiction by noting that both South Africa and Israel are parties to the Genocide Convention. It found that South Africa had clearly signaled the existence of a dispute through diplomatic notes and public statements prior to the filing. Reaffirming its landmark jurisprudence in The Gambia v. Myanmar, the Court held that the prohibition of genocide is an obligation erga omnes partes. This means that every state party to the Convention has a legal interest in ensuring its compliance, granting South Africa the standing to seek the enforcement of these non-derogable obligations even without a direct link to the victims.
6.2 Plausibility and the Threshold of Risk
A key analytical finding was the “plausibility” of the rights sought to be protected. The Court explicitly stated that it was not determining at this stage whether genocide had occurred. However, it found that the rights of Palestinians in Gaza to be protected from genocidal acts were “plausible.” This conclusion was reached by examining the “extreme vulnerability” of the population, as documented by multiple UN bodies, and rhetoric from Israeli officials that “gave rise to a real and imminent risk” of irreparable prejudice. The Court applied a lower evidentiary threshold for provisional measures than it would for a final judgment, focusing on the preservation of the group until the merits could be fully heard.
6.3 Reasoning on Modification (March and May 2024)
The Court’s reasoning evolved significantly as the conflict progressed. In March, it reasoned that the “spread of famine” constituted a “new fact” under Article 76 of the Rules of Court. It noted that the catastrophic conditions predicted in January had materialized, necessitating more explicit and stringent requirements for the delivery of aid “at scale.” In May, the Court found that the Rafah offensive created an “exceptionally grave” change in the situation. It reasoned that the previous measures were no longer sufficient because the offensive directly threatened the last major population center in Gaza. It concluded that Israel’s evacuation efforts were “not sufficient to alleviate the immense risk” to the hundreds of thousands of people who were forced to move yet again to areas lacking basic services.
6.4 The “Rafah Halt” Analysis
The reasoning behind the May 2024 directive to halt the Rafah offensive was particularly significant and controversial. Unlike the Russia-Ukraine case, the Court did not order a global ceasefire. It acknowledged Israel’s obligation to secure the release of its hostages and the fact that Hamas, not being a state, was not a party to the proceedings. However, the Court reasoned that the specific offensive in Rafah was incompatible with the Genocide Convention because of the unique concentration of displaced persons and the destruction of the humanitarian pipeline. By linking a specific military “halt” to the prevention of genocidal conditions, the Court asserted its authority to regulate the conduct of hostilities when such conduct threatens the very existence of a protected group.
7. Judgment and Ratio Decidendi
7.1 Operative Clauses
The Court issued the following binding directives across the three orders:
26 January: Israel must take all measures within its power to prevent acts under Article II of the Convention; prevent and punish direct incitement; and ensure the provision of urgently needed basic services and humanitarian assistance.
28 March: Israel must ensure “unhindered provision at scale” of food, water, and medical supplies in full cooperation with the United Nations. It must also ensure that its military does not commit acts which constitute a violation of any of the rights of the Palestinians in Gaza.
24 May: Israel must immediately halt its military offensive in the Rafah Governorate, and any other action which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.
24 May: Israel must maintain the Rafah crossing open for unhindered provision of basic services and ensure “unimpeded access” for any commission of inquiry or fact-finding mission sent by the UN to investigate allegations of genocide.
7.2 Ratio Decidendi
The ratio decidendi established by these orders is that where a protected group is subjected to a military campaign characterized by “massive civilian casualties” and “disastrous” humanitarian deprivation, the risk of genocide is “plausible” and “imminent.” In such circumstances, the Court possesses the power under Article 41 of its Statute to indicate provisional measures that restrict a state’s military operations and demand the unhindered facilitation of aid “at scale” to prevent the physical destruction of the group.
8. Critical Analysis
8.1 Significance and Doctrinal Shift
These orders represent a transformative application of the Genocide Convention, moving the ICJ from a post-conflict punitive role to a preventative, real-time humanitarian regulator. Traditionally, the Court had been hesitant to interfere with ongoing military operations. However, the finding of “plausibility” based on human vulnerability establishes a “doctrine of humanitarian stasis.” This doctrine prioritizes the preservation of a group over the immediate military objectives of a state when those objectives are pursued in a manner that threatens the group’s survival. This represents a significant strengthening of the “duty to prevent” under Article I of the Convention.
8.2 Practical Implications for Third States
The orders create substantial legal and political pressure on third states. Under Article I of the Convention, the duty to prevent genocide is triggered once a state learns, or should have learned, of a “serious risk” of genocide. The ICJ’s formal findings of “plausibility” and “disastrous situation” put all 153 signatories on notice. This potentially makes the continued provision of military or financial aid to Israel a violation of those states’ own treaty obligations. We have already seen this influence domestic litigation, such as the Netherlands court ruling regarding the export of F-35 parts, which cited the risk of violating international law.
8.3 Evaluation of Ambiguity and Enforcement
A critical weakness in the May 2024 order is the linguistic ambiguity of the “halt” directive. By phrasing the order to halt the offensive “which may inflict” destructive conditions, the Court left room for divergent interpretations. Israel has argued that this allows for “targeted” operations that do not meet that threshold, while South Africa and several judges interpret it as a total ban on any offensive in Rafah. This ambiguity, combined with the lack of an independent international enforcement mechanism and the persistent threat of a United States veto on the Security Council, creates a “lightness” to the measures. While legally binding, their practical efficacy depends on political pressure and the willingness of the parties to comply.
9. Conclusion
The ICJ’s intervention in South Africa v. Israel highlights the expanding reach of international judicial oversight in modern urban warfare. By issuing three increasingly specific provisional measures, the Court aims to protect the Palestinian population in Gaza from a “disastrous” humanitarian collapse. Though not a full ceasefire, the orders create a binding legal framework, mandating unhindered aid and restricting military action in densely populated refuges like Rafah. The case permanently clarifies that the duty to prevent genocide overrides military necessity and state sovereignty. Regardless of the final ruling, the provisional measures have centered vulnerable group protection within international law, ensuring any conflict resolution adheres to the non-derogable principles of the 1948 Convention and makes the promise of “Never Again” a practical reality.
10. Reference(S):
Cases
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Provisional Measures) [2020] ICJ Rep 3.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (Provisional Measures) [2024] ICJ Gen List No 192 (Order of 26 January).
Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (Order of 28 March 2024).
Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (Order of 24 May 2024).
Treaties and Statutes
Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277.
Statute of the International Court of Justice.
Secondary Sources
Adil Haque, ‘Implications of the ICJ Order South Africa v Israel for Third States’ (EJIL: Talk!, 5 February 2024) accessed 8 May 2026.
Chimène Keitner, ‘Making Sense of the ICJ’s Provisional Measures in South Africa v. Israel’ (Lawfare, 24 May 2024) accessed 8 May 2026.
Milena Sterio, ‘The ICJ’s Provisional Measures Order in the South Africa v. Israel Case’ (OpinioJuris, 31 January 2024) accessed 8 May 2026.
UN Special Rapporteur, ‘Anatomy of a Genocide’ (March 2024) UN Doc A/HRC/55/73.
