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South Africa v. Israel at the ICJ: Every Ruling, Explained

On 29 December 2023, South Africa filed an application at the International Court of Justice accusing Israel of violating the Genocide Convention in the Gaza Strip. ICJ What followed — three rounds of provisional measures, a landmark order halting military operations in Rafah, and a global legal debate about the threshold for genocide — constitutes one of the most consequential cases in the court’s history. This article walks through every major ruling, the legal framework the court applied, the dissents, and what it all means.

What South Africa Argued, and Why It Could

South Africa filed its application on 29 December 2023, founding the court’s jurisdiction on Article IX of the Genocide Convention, to which both South Africa and Israel are parties without reservation. ICJ

The application alleged that “acts and omissions by Israel . . . are genocidal in 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.” ICJ South Africa further alleged that “Israel, since 7 October 2023 in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide.” ICJ

The legal vehicle South Africa used — the Genocide Convention’s dispute resolution clause — is important. It means any state party to the convention can bring another state party before the ICJ for alleged breaches, regardless of any bilateral relationship. South Africa did not need Israel’s consent to sue. The convention itself was the treaty hook.

Along with the main application, South Africa immediately requested provisional measures — emergency orders intended to protect rights while the full merits case proceeds. Under the court’s rules, such requests take priority over all other cases. ICJ

The Legal Framework: What Genocide Actually Means Under International Law

To understand every ruling that followed, one must understand what the Genocide Convention requires.

Article II of the Genocide Convention defines genocide as any of the following acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; or forcibly transferring children of the group to another group. United Nations

The United Nations Office on Genocide Prevention is clear about what makes genocide legally distinct from other mass atrocities. The convention contains two main elements: a mental element — the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” — and a physical element consisting of those five enumerated acts. United Nations

“The intent is the most difficult element to determine,” the UN framework states. The specific intent requirement — known in international criminal law as dolus specialis — is what separates genocide from war crimes or crimes against humanity, both of which can be proven without demonstrating a specific plan to destroy a group as such. United Nations

This distinction became the central battleground of South Africa v. Israel. At the provisional measures stage, the court did not need to prove genocide had occurred. It needed only to determine whether South Africa’s claims were plausible — and whether Palestinians in Gaza faced a real and imminent risk of irreparable harm to rights protected under the convention.

The January 2024 Order: Fifteen Judges to Two

Public hearings on South Africa’s request for provisional measures were held on 11 and 12 January 2024. On 26 January 2024, the court delivered its first order. ICJ

The vote was 15 to 2 on the core measures. The court ordered Israel to take all measures within its power to prevent the commission of acts within the scope of Article II of the Genocide Convention, specifically: killing members of the group; causing serious bodily or mental harm; deliberately inflicting conditions of life calculated to bring about physical destruction; and imposing measures intended to prevent births. ICJ

By the same 15-2 margin, the court ordered Israel to “ensure with immediate effect that its military does not commit any acts described in point 1 above.” ICJ

By 16 votes to one, the court ordered Israel to prevent and punish direct and public incitement to commit genocide, to take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance, and to take measures to preserve evidence related to allegations of acts under Article II and Article III of the Genocide Convention. ICJ

The court also ordered Israel to submit a report within one month on all measures taken to comply. ICJ

The January order did not include a ceasefire. South Africa had requested one; the court declined. But the measures it did indicate were legally binding — and the 15-2 supermajority made it impossible for Israel or its Western backers to dismiss the order as a fringe result.

The two dissenting votes came from Judge Sebutinde and Judge ad hoc Barak, Israel’s appointed judge. ICJ

The Sebutinde Dissent: A Political Dispute, Not a Legal One

Judge Sebutinde’s dissenting opinion deserves close attention — not because it is persuasive, but because it articulates a position that Israel and its defenders have repeatedly invoked.

Sebutinde argued that “the dispute between the State of Israel and the people of Palestine is essentially and historically a political one, calling for a diplomatic or negotiated settlement” and that it “is not a legal dispute susceptible of judicial settlement by the Court.” ICJ

She contended that South Africa had not demonstrated, “even on a prima facie basis, that the acts allegedly committed by Israel and of which the Applicant complains, were committed with the necessary genocidal intent.” ICJ

Sebutinde also argued that the court’s jurisdiction under the Genocide Convention does not extend to alleged breaches of international humanitarian law, noting that “grave violations of international humanitarian law amounting to war crimes or crimes against humanity could have been committed against the civilian populations both in Israel and in Gaza” but that “such grave violations do not, in and of themselves, constitute ‘acts of genocide’ as defined in Article II of the Genocide Convention, unless it can be demonstrated that they were committed ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.’” ICJ

This is the correct legal point — the convention’s scope is narrow — but thirteen of her colleagues disagreed that the threshold for plausibility had not been crossed. The distinction matters: the court at this stage was not finding genocide had occurred. It was finding the claim credible enough to warrant protecting Palestinian rights while the case proceeds. Fourteen judges concluded it was.

The March 2024 Order: Famine and Escalating Urgency

On 6 March 2024, South Africa returned to the court requesting further provisional measures, citing the “worsening conditions of life faced by Palestinians in Gaza, in particular the spread of famine and starvation.” ICJ

By an order of 28 March 2024, the court reaffirmed its January measures and added new ones. ICJ Israel was ordered to 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. ICJ

Israel submitted a report on compliance on 26 February 2024 in response to the January order, and again on 29 April 2024 in response to the March order. South Africa presented observations on both reports. ICJ

In between the March order and South Africa’s next application, the court responded to a communication from South Africa about developments in Rafah. The court noted that the situation in Rafah “would exponentially increase what is already a humanitarian nightmare with untold regional consequences,” quoting United Nations Secretary-General António Guterres. ICJ The court declined at that point to indicate additional measures, saying the existing measures applied throughout Gaza, including in Rafah. But the court emphasised that Israel “remains bound to fully comply with its obligations under the Genocide Convention.” ICJ

May 2024: Rafah, 1.5 Million People, and the Third Order

On 7 May 2024, the Israeli military began a ground incursion into Rafah. On 10 May 2024, South Africa filed an urgent request for modification and indication of new provisional measures. ICJ

South Africa argued that Rafah was “the ‘last refuge’ in Gaza for 1.5 million Palestinians, the majority of whom had been forcibly displaced from northern and central Gaza.” ICJ It contended that Israel had seized control of both the Rafah crossing and the Kerem Shalom crossing, “thereby taking full and direct control over all entry and exit points for people and goods to and from Gaza.” ICJ

South Africa told the court that approximately 76 per cent of the territory of Gaza was under evacuation orders, and that “an estimated two thirds of homes have been damaged or destroyed.” ICJ The alleged “humanitarian area” of Al-Mawasi in the Khan Younis Governorate, to which Israel was directing Palestinians in eastern Rafah to relocate, was described as “already overcrowded and lacking in safety, as well as in essential services.” ICJ

Israel asked the court to postpone the hearings. The court refused after South Africa opposed the request. ICJ Oral hearings were held on 16 and 17 May 2024. South Africa’s legal team included Mr Vaughan Lowe, Mr John Dugard, Mr Max du Plessis, Ms Adila Hassim, Mr Tembeka Ngcukaitobi, and Ms Blinne Ní Ghrálaigh, among others. ICJ

On 24 May 2024, the court delivered its third provisional measures order.

The court found that the “catastrophic humanitarian situation” in Gaza “has deteriorated” and “is now to be characterized as disastrous.” Just Security The military offensive in Rafah and “the resulting repeated large-scale displacement of the already extremely vulnerable Palestinian population in the Gaza Strip,” including 800,000 displaced as of 18 May, constituted a change in situation sufficient to justify new measures. Just Security

By 13 votes to 2, the court ordered Israel to:

The court also reaffirmed its prior orders. Just Security

Reading the May Order: What the Judges Said

Several judges wrote individual opinions illuminating what the May order required in practice.

Judge Tladi wrote that the halt order applied to offensive operations and that “legitimate defensive actions, within the strict confines of international law, to repel specific attacks, would be consistent with the Order.” But he was clear: “What would not be consistent is the continuation of the offensive military operation in Rafah, and elsewhere, whose consequences for the rights protected under the Convention on the Prevention and Punishment of Genocide has been devastating.” Just Security

Judge Nolte, who was not convinced “that the evidence presented to the Court provides plausible indications that the military operation undertaken by Israel as such is being pursued with genocidal intent,” still voted for the measures. His reason: Israel had not sufficiently demonstrated it could enable humanitarian assistance “without limiting its current military offensive in Rafah.” He noted specifically “the repeated interruptions of humanitarian aid deliveries by private Israeli citizens, which the police and the military have not prevented,” and “continuing significant incendiary public speech in Israel, including by senior Israeli officials” — specifically naming Israeli Minister of Finance Bezalel Smotrich and Minister of National Security Itamar Ben Gvir. Just Security

Judge ad hoc Barak, dissenting, characterised the ruling as a defeat for South Africa — a claim that legal analyst Adil Ahmad Haque, writing for Just Security, described as “hard to take seriously” for anyone who had read the orders or watched the proceedings. Just Security

The court was also not persuaded by Israel’s argument that it had taken sufficient protective measures. The court found that Israel had not provided “sufficient information concerning the safety of the population during the evacuation process, or the availability in the Al-Mawasi area of the necessary amount of water, sanitation, food, medicine and shelter for the 800,000 Palestinians that have evacuated thus far.” Just Security

What Amnesty International Said the Order Meant

Amnesty International’s Regional Director for the Middle East and North Africa, Heba Morayef, responded to the May order directly: “With this order the International Court of Justice (ICJ) �� the UN’s principal court – has made it crystal clear: the Israeli authorities must completely halt military operations in Rafah, as any ongoing military action could constitute an underlying act of genocide.” Amnesty International

Amnesty noted that by the time of the May order, 35,000 Palestinians had been killed, “mounting evidence of unlawful attacks on civilians” had accumulated, and the UN had declared a famine amid what Amnesty described as a “continuing woeful shortage in humanitarian aid.” Amnesty International

Amnesty also addressed what it called the “charade of ‘safe zones’” — the designated evacuation areas, particularly Al-Mawasi, that Israeli authorities had directed Palestinians to. The organisation said those areas were “desperately unequipped to host them and lack the most basic standards of safe and dignified living conditions, including necessary amounts of water, sanitation, food, medicine and shelter.” Amnesty International

Morayef called on allied states to act: “Given previous orders, this order is no longer a ‘wake up call’ to all states, but a further unequivocal affirmation of their legal duty to prevent genocide which requires them to ensure that all the ICJ’s provisional measures are duly implemented.” Amnesty International

The Pattern Behind the Proceedings

Three provisional measures orders. Binding rulings by overwhelming supermajorities. A court that has found, again and again, that Palestinians in Gaza face a real and imminent risk of irreparable harm to their rights under the Genocide Convention. And an Israeli government that, each time, denied compliance obligations while providing reports the court found insufficient.

The case remains on the merits — the court has not yet delivered a final judgment on whether genocide has been committed. That determination requires the full evidentiary hearing, and will take years. But what the court has already established is significant: that South Africa’s claims are legally plausible, that the rights of Palestinians in Gaza under the Genocide Convention exist and require protection, and that Israel’s military operations have repeatedly generated conditions the court considers inconsistent with its obligations.

What the court cannot do — and has never been able to do — is enforce its own orders. The ICJ has no army. Enforcement runs through the UN Security Council, where the United States holds a veto. That structural reality is why Amnesty International explicitly called on Israel’s allies to use their leverage: the ICJ’s authority is legal and moral, not military. Whether states act on it is a political question. The legal answer, delivered three times now by the world’s principal judicial body, grows harder to ignore with each order.

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