Provisional measures requested by the Republic of South Africa and ordered by the International Court of Justice (ICJ): a comparison

palestine · gaza · south africa · icj
2024-01-28

On 29 December 2023, the steadfast and courageous Republic of South Africa filed a case with the International Court of Justice (ICJ) against “The State of Israel” on suspicion of genocidal intent. South Africa requested a number of provisional measures while genocide is being investigated. On 26 January 2024 the ICJ delivered its order against “The State of Israel”.

As there has been some kerfuffle about what the ICJ’s order really amounts to, and how close it is to what the South African legal team had requested, here’s a tabular comparison of the two sets of provisional measures for easy comparison, with the differences pointed out.

Provisional measures

To distinguish internal cross-references between the two sets of provisional measures, numbers of the provisional measures requested by the Republic of South Africa are prefixed with an [SA], while numbers of provisional measures ordered by the Court are prefixed with an [ICJ].

Requested by South Africa (SA)1 Ordered by the Court (ICJ)2 Difference
[SA]1. The State of Israel shall immediately suspend its military operations in and against Gaza. not ordered The ICJ did not order the State of Israel to immediately suspend its military operations in and against Gaza.
[SA]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 ([SA]1) above. not ordered The ICJ did not order the State of Israel to 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 operations in and against Gaza.
[SA]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 Genocide3, in relation to the Palestinian people, take all reasonable measures within their power to prevent genocide. not ordered The ICJ did not order the Republic of South Africa and the State of Israel to 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.
[SA]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 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 II4 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.
 [ICJ]1. 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 Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:
  • a. killing members of the group;
  • b. causing serious bodily or mental harm to 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;
 Two main differences:
  • South Africa's requested provisional measure refers to "the Palestinian people as a group", while the ICJ's ordered provisional measure refers only to "Palestinians in Gaza".
  • The ICJ did not order the State of Israel to desist from the commission of any and all acts" that fall within the scope Article II of the Genocide Convention. Instead, the ICJ ordered, more weakly, that the State of Israel take all measures within its power to prevent such acts.
[SA]5. The State of Israel shall, pursuant to point ([SA]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.
 [ICJ]4. The State of Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip; Four main differences:
  • The ICJ did not order the State of Israel to "desist from, and take all measures within its power" to do anything, as South Africa had requested. Instead the ICJ ordered that the State of Israel "shall take immediate and effective measures" to a certain end.
  • The ICJ's order makes no mention of preventing the expulsion and forced displacement of people from their homes.
  • The ICJ's order makes no explicit mention of preventing the deprivation of access to food, water, adequate fuel, shelter, clothes, hygiene and sanitation, and medical supplies and assistance.
  • The ICJ's order makes no mention of preventing the destruction of Palestinian life in Gaza.
[SA]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 ([SA]4) and ([SA]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. not ordered The ICJ did not order the State of Israel, in relation to Palestinians, to 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 ([SA]4) and ([SA]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.
not requested5 [ICJ]2. The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point [ICJ]1 above; The ICJ ordered the State of Israel to ensure that its military does not commit any acts within the scope of Article II of the Genocide Convention, in particular:
  • a. killing Palestinians;
  • b. causing serious bodily or mental harm to Palestinians;
  • c. deliberately inflicting on Palestinians conditions of life calculated to bring about their physical destruction in whole or in part; and
  • d. imposing measures intended to prevent births among Palestinians;
not requested6 [ICJ]3. The State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip;

 The ICJ ordered the State of Israel to take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip;
[SA]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. [ICJ]5. 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 and Article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip; Two main differences:
  • The ICJ ordered the State of Israel to take effective measures to prevent the destruction and ensure the preservation of evidence in relation to allegations of acts not just within the scope of Article II, but also the within the scope of Article III7 of the Genocide Convention.
  • The ICJ did not order the State of Israel to 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.
    [SA]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. [ICJ]6. The 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. Two main differences:
    • The ICJ did not order the State of Israel to submit a report on all measures taken within one week, as South Africa had requested. Instead, it ordered such a report within one month.
    • The ICJ did not order the State of Israel, after its initial report, to submit reports at regular intervals until a final decision on the case is rendered by the Court.
    [SA]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. not ordered The ICJ did not order the State of Israel to refrain from any action and to ensure that no action is taken which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

    footnotes

    1. Source: Application instituting proceedings and request for the indication of provisional measures (29 December 2023) (PDF), pp. 82-83. ↩︎
    2. Source: Order of 26 January 2024 (PDF), pp. 24-26. ↩︎
    3. Read the entire text of the Convention on the Prevention and Punishment of the Crime of Genocide (PDF). ↩︎
    4. Article II of the Genocide Convention reads: "In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to 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; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group." ↩︎
    5. South Africa had requested, more strongly, that ([SA]1) "Israel" immediately suspend its military operations in and against Gaza, and ([SA]2) that military or irregular armed units, persons or organizations directed, supported, or influenced by "Israel" or subject to its control "take no steps in furtherance of the military operations" in and against Gaza. If a military, military units, irregular armed united, people or organizations, halt all its activities, then it follows that it also cannot commit any acts that fall within Article II of the Convention on the Prevention and Punishment of the Crime of Genocide. Hence, the ICJ has ordered something weaker than South Africa had requested. ↩︎
    6. South Africa had requested (in [SA]6.), more specifically, that the State of Israel ensure that its military, 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 engage in direct and public incitement to commit genocide, plus that it ensure that these don't engage in "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". In the ICJ's order, this is formulated as the weaker "take all measures within its power to prevent", while the focus shifts to incitement, and away from conspiracy or attempt to commit, or complicity in, genocide. Moreover, the ICJ's order omits reference to the punishment of such acts. ↩︎
    7. Article III of the Genocide Convention reads: "The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide." ↩︎
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