South Africa has submitted an urgent new request about Palestine to the International Court of Justice (ICJ) in The Hague and Libya has filed a declaration of intervention in South Africa’s case against Israel.

In its request, South Africa is asking for the indication of additional provisional measures and the modification of provisional measures previously prescribed by the ICJ.

Specifically, South Africa requests that the court indicate the following provisional measures:

• The State of Israel shall immediately withdraw and cease its military offensive in the Rafah Governorate.
• The State of Israel shall immediately take all effective measures to ensure and facilitate the unimpeded access to Gaza of United Nations and other officials engaged in the provision of humanitarian aid and assistance to the population of Gaza, as well as fact-finding missions, internationally mandated bodies or officials, investigators, and journalists, in order to assess and record conditions on the ground in Gaza and enable the effective preservation and retention of evidence, and shall ensure that its military does not act to prevent such access, provision, preservation or retention.
• The State of Israel shall submit an open report to the Court: (a) on all measures taken to give effect to these provisional measures within one week as from the date of this Order; and (b) on all measures taken to give effect to all previous provisional measures indicated by the Court within one month as from the date of this Order.

South Africa states that the provisional measures previously indicated by the court are not capable of fully addressing the changed circumstances and new facts on which its request is founded.

It states that the situation brought about by the Israeli assault on Rafah, “and the extreme risk it poses to humanitarian supplies and basic services into Gaza, to the survival of the Palestinian medical system, and to the very survival of Palestinians in Gaza as a group” is not only an escalation of the prevailing situation, but gives rise to new facts that are causing irreparable harm to the rights of the Palestinian people in Gaza.

South Africa says Rafah is now effectively “the last refuge in Gaza for 1.5 million Palestinians from Rafah and those displaced by Israeli action, and the last viable centre in Gaza for habitation, public administration, and the provision of basic public services, including medical care”.

It says that, in seizing control of the Rafah and Kerem Shalom (Karem Abu Salem) crossings, Israel “is now in direct, total control of all entry and exit to Gaza, has cut it off from all humanitarian and medical supplies, goods and fuel on which the survival of the population of Gaza depends, and is preventing medical evacuations”.

South Africa further states that “the remaining population and medical facilities are at extreme risk, given the recent evidence of evacuation zones being treated as extermination zones, the mass destruction and mass graves at Gaza’s other hospitals, and the use by Israel of Artificial Intelligence (‘AI’) to identify ‘kill lists’”.

It adds: “Not only is there nowhere for the 1.5 million displaced people and others in Rafah safely to flee to – so much of Gaza having been reduced to rubble – if Rafah is similarly destroyed there will be little left of Gaza or of the prospects for the survival of Palestinian life in the territory.”

South Africa notes that Al Najjar Hospital – one of the last remaining medical facilities in the entire Rafah Governorate and one of Gaza’s largest remaining partially functioning hospitals – is no longer functional.

“The Israeli assault on Rafah is deliberately inflicting on Palestinians conditions of life calculated to bring about their physical destruction,” South Africa states.

Despite repeated orders by the ICJ, South Africa says, Israel has not changed its conduct.

“It has doubled down on its genocidal aims and acts, including by invading Rafah. Members of the Israeli Ministerial Committee on National Security Affairs (‘Security Cabinet’) and the War Cabinet have continued their genocidal rhetoric,” South Africa states in its request.

It asks that, “in view of the extreme urgency of the situation”, the court consider its request without a hearing, “insofar as that would be capable of expediting a determination within a week, by 17 May 2024”.

“However, if the Court considers that it cannot accede to South Africa’s request for an Order without a hearing, the Court is respectfully requested urgently to schedule an oral hearing for South Africa’s Request to be heard on or before 17 May 2024 …,” South Africa states.

Libya states that it has filed its declaration of intervention “because it believes that acts and omissions by Israel are of genocidal character, as they are committed with the requisite specific intent to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group” and that “the conduct of Israel through its State organs, State agents, and other persons and entities acting on its instructions or direction, control or influence in relation to Palestinians in Gaza, is in violation of its obligations under the Genocide Convention”.

South Africa and Israel have been invited to furnish written observations on Libya’s declaration of intervention.

In an earlier request, on March 6, South Africa asked for additional provisional measures and/or the modification of the ICJ’s order of January 26, 2024, “in order urgently to ensure the safety and security of 2.3 million Palestinians in Gaza, including over a million children”.

The ICJ issued a new order on March 28 in which it told Israel to take action to address famine in Gaza.

The court said that Palestinians in Gaza were no longer facing only a risk of famine, but that famine was “setting in”.

The ICJ said that Israel should, without delay, take all necessary and effective measures to ensure the unhindered provision of urgently needed basic services and humanitarian assistance.

Israel should increase the capacity and number of land crossing points and maintain them open for as long as necessary, the ICJ added.

Since January 26, 2024, the court said, the catastrophic living conditions of the Palestinians in the Gaza Strip had 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”.

In its new order, the ICJ also said that Israel should 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”.

The ICJ said it was delivering its new order based on the change in the situation in Gaza, and Israel’s observations on March 15, 2024, about South Africa’s March 6 request.

The court said that, in its view, the provisional measures indicated in the January 26 order did not fully address the consequences arising from the changes in the situation and this justified the modification of these measures.

By 14 votes to two, the ICJ reaffirmed the provisional measures indicated in its January 26 order.

The court’s vice-president, Justice Julia Sebutinde from Uganda, who had voted against all the provisional measures South Africa sought against Israel in its initial application, voted against the reaffirmation of the measures along with the ad hoc judge for Israel, Aharon Barak.

In its new order, the ICJ stated that 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” 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”.

This, the court said, included the provision of food, water, electricity, fuel, shelter, and clothing as well as medical supplies and medical care to Palestinians throughout Gaza.

All 16 judges voted in favour of this ruling.

Fifteen of the ICJ judges voted in favour of the order that Israel should 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”.

Aharon Barak was the only judge who voted against this ruling.

Barak also voted against a third ruling: “that 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”.

In its January 26 order, the ICJ said that, in its view, at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appeared to be capable of falling within the provisions of the Genocide Convention.

In its March 15 written observations, Israel stated that South Africa’s March 6 request had a “bellicose and offensive tone”.

Israel said: “The accusations made therein are outrageous and categorically denied. Much like South Africa’s Application that instituted the present proceedings, they are wholly unfounded in fact and law, morally repugnant, and represent an abuse both of the Genocide Convention and of the Court itself.”

South Africa had a “belligerent and disingenuous approach”, Israel said.

Israel noted that it had, on February 26, 2024, submitted to the ICJ a report pursuant to the court’s January 26 order.

“At the time of filing the present request on 6 March 2024, South Africa could hardly have had sufficient time to consider seriously Israel’s Report and its Annexes,” Israel said.

ICJ rejects request for provisional measures over German military exports to Israel

On April 30, judges at the ICJ issued an order rejecting a request from Nicaragua for provisional measures over Germany’s military exports to Israel. It was a majority ruling, with only one of the 16 judges dissenting.

The ICJ stated: “Based on the factual information and legal arguments presented by the Parties, the Court concludes that, at present, the circumstances are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.”

Nicaragua had argued that Germany had provided political, financial, and military support to Israel while fully aware that the military equipment would be used in the commission by Israel of “great breaches of international law” and in disregard of its own obligations.

Germany denied Nicaragua’s allegation that it had violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.

Colombia files a declaration of intervention

On April 5, Colombia filed a declaration of intervention in South Africa’s case against Israel.

In its declaration, Colombia notes that the Genocide Convention is “a cardinal instrument of international law” and contends that the case “raises vital issues concerning the interpretation and application of several provisions of the Genocide Convention that reflect both erga omnes obligations, owed to the international community as a whole, and erga omnes partes obligations, owed to all States parties to the treaty, in relation to not only the prohibition to commit genocide but also the obligation to prevent genocide”.

Colombia stated that it was submitting its declaration “in the genuine belief that the States parties to the Genocide Convention should do everything in their power to contribute to ensure the prevention, suppression and punishment of genocide and therefore, to assist the Court in finding the responsibility of any State Party to the Convention, for its failure to comply with the obligations contained therein, especially in the context of such a dramatic situation as that unfolding in the Gaza Strip”.

In its conclusion, Colombia says it respectfully calls upon the ICJ to execute its mandate “with a view to ensuring the safety and, indeed, the very existence of the Palestinian people, a distinct group protected under the Genocide Convention, bearing in mind the real and imminent risk of irreparable prejudice to its rights, as recently recognized by the Court itself”.

South Africa and Israel have been invited to furnish written observations on Colombia’s declaration.

UPDATES: On May 12, Egypt announced its intention to intervene in support of South Africa’s case against Israel at the ICJ.

There will be public hearings about South Africa’s latest request to the ICJ on May 16, when South Africa will present its oral arguments, and May 17, when Israel will make its oral submission to the court.

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