Table of Content:

1. Introduction
2. To what extent does the republic of South Africa have the
right to institute legal proceedings in respect of the war in
Gaza when it does have any interest in the matter in
question?
3. Critical summary of the interim measures granted by the ICJ
4. Critical analysis and conclusion on the provisional measures
granted by the ICJ
5. Bibliography
1. South Africa entered a case before the International Court of Justice (ICJ) against
Israel for the act of genocide against Palestine’s people. Critically assess the locus
standi of South Africa in international law as well as make a critical resumé of the
provisional measures, if any, granted by the ICJ.
[30 marks]

[Link]:

South Africa has entered a case on the 29th of December 2023 against Israel
before the International Court of Justice (ICJ) and alleged that Israel had committed
and was committing acts of genocide against the Palestinian people in the Gaza
strip, which is a violation of the Genocide Acts. In fact, the Republic of South Africa
instituted legal proceedings at the International Court of Justice in accordance with
the Genocide Convention; with the full name of the case being the Application of the
Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza
Strip (South Africa v. Israel). It is important to note that the case in question was
brought under the 1948 Genocide Convention, a treaty to which South Africa and
Israel are signatory, and many other countries in the world. As a result, the State of
Israel was bound by the provisions of the Convention.
[Link] what extent does the republic of South Africa have the right
to institute legal proceedings in respect of the war in Gaza when
it does not have any interest in the matter in question?

Locus Standi (standing) is a legal principle whereby an individual or entity can bring
a lawsuit or institute legal proceedings. In other words, it is the legal right to bring a
claim in court. There are legal criteria that a party bringing an action will have to
meet. The requirement is that a party must have a sufficient interest in the matter or
must be affected by the matter in question, to be involved in the case.

However, in this scenario the case is different. In fact, there is a principle of

international law that aroused in this case, specifically the principle of obligation erga
omnes is relevant to this matter in question. Obligations erga omnes are obligations
that a State owes to the international community as a whole and it gives a general
right of standing to any State claiming that this obligation has been violated. This
concept was created by the jurisprudence of the ICJ. Therefore, according to the
principle of erga omnes a country claiming that another state has violated a
peremptory norm or a fundamental principle, has a locus standi- that is a right to
bring lawsuit or institute legal proceedings and further seek legal remedy. A country
will not have to prove that it is directly or indirectly concerned, affected or having an
interest in bringing the lawsuit; where an obligation is of concern to all states, an
obligation erga omnes was involved.

The concept was created as a result of the South West Africa cases 19661 where the
International Court of Justice refused to grant standing to Ethiopia and Liberia to give
effect to an obligation owed to the international community. However, this decision
was reversed in the case of Barcelona Traction, Light and Power Company Limited
[1970] 2where the International Court of Justice concluded that a State does not
need to have an interest in the subject matter of its claim ''...where an obligation is of
concern to all states – an obligation erga omnes – was involved.'' The Court further
described obligations erga omnes as: Obligations that strictly condemned and
prohibit acts of aggression and genocide, and further promote fundamental human
rights including protection from slavery and racial discrimination. Some of the rights
to secure protection of the law form part of general international law.

On the same wavelength, a country that is not directly involved in an armed conflict
can seek the intervention of the International Court of Justice (ICJ) under certain
specific circumstances. If a particular international treaty, such as the Genocide
Convention, is relevant to the case, a third party who is not directly involved in the

1
Advisory Opinion on Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory [2004] ICJ Reports 136
2
Article 63, STATUTE OF THE INTERNATIONAL COURT OF JUSTICE
conflict or doesn't have any interest in it, can intervene. "International law expert
named Stefan Talmon from the University of Bonn explained that a third party can
intervene because the Genocide Convention is an international treaty; it has been
signed by about 150 states, including South Africa, Israel, and Germany."3 If a
dispute related to genocide arises, the fact that these states have signed this
Convention they can seek the intervention of the ICJ and further bring the case
before the international court.

Article 63 of the ICJ Statute allows third party intervention when the “construction of
the convention” is in question.3 By this way, this means that if there is a dispute
about how the treaty is interpreted, any party to that treaty can seek intervention
from the ICJ.

Furthermore, in the Advisory Opinion on Legal Consequences of the Construction of

a Wall in the Occupied Palestinian Territory [2004]4, the Court claimed that by
building a wall within the Palestinian territory, Israel had violated the erga omnes
obligation “to respect the rights of the Palestinian people to self-determination, and
certain of its obligations under international humanitarian law”. The ICJ found that
the construction of the wall by Israel in the Occupied Palestinian Territory and its
associated regime are contrary to international law. This opinion is significant in
discussions about the conflict between Israel and Palestine and the legal
implications of the wall’s construction.

3
Sagoo, R. (2024) 'Chatham House' [ Online]. Available at South Africa’s genocide case
against Israel: The International Court of Justice explained | Chatham House –
International Affairs Think Tank ( Accessed date 26 JANUARY 2024)
4
Barcelona Traction, Light and Power Company Limited [1970] ICR Reports 3
[Link] summary of the interim measures granted by the ICJ

In proceedings before the ICJ, the Republic of South Africa alleged that Israel is
responsible for violations of the Genocide Convention in respect of its actions taken
in Gaza. These allegations have strongly been rejected by the State of Israel. South
Africa firmly maintains that Israel has committed acts of genocide against
Palestinians in Gaza and has failed to prevent it. The Court has not taken a decision
on whether or not acts of genocide has been committed, nor has it ruled whether it
even has jurisdiction to hear the case.

It’s important to note that the Court’s final ruling may take years, but so as to
address the problem immediately and to give appropriate remedy pending the final
determination of this case, interim measures have been put in place.

On the 26 January 2024, the Court recalled the attack of 7 October 2023 on Israel
with taking of hostages, massive killings of Palestinians with a death toll of 26,000
people, as well as the human suffering inflicted, displacement of about 2.3 million
civilians and great infrastructural damage in Gaza caused by Israel. As a matter of
fact, the court has ordered provisional measures: including Israel’s obligation to
prevent acts prohibited by the Genocide Convention

The state of Israel must respect its obligations under the Genocide Convention and
thereby, do everything in its power to prevent the commission of acts that are strictly
prohibited by the Genocide Convention, particularly the deliberate killings of
Palestinian people, inflicting physical and mental pain, deliberately make people live
in inhumane conditions or render the life conditions unliveable with the intent to
destroy, in whole or in part the people of Palestine and the imposition of conditions
that are not conducive for births.

It must also ensure that its military forces do not commit such acts mentioned in the
first point of the Order.

Israel must take all measures in its power to prevent and punish act that openly and
directly encourage genocide. This could include hate speeches, publications, or
social media posts that encourage the destruction of a specific group of people.
Therefore, the State of Israel should engage in taking legal actions such as passing
and enforcing laws to prevent acts that promote genocide.

The Court also ordered that Israel must take necessary steps and action urgently
needs to provide humanitarian aid to Gaza. In the context of humanitarian relief, this
could mean removing restrictions on the movement of goods and people in and out
the country, allowing access for humanitarian groups, and ensuring the delivery of
essential supplies.

Israel, having signed the Genocide convention, therefore it has the obligation to take
necessary actions to prevent the destruction or interfering with evidence related to
allegations of acts that contravene the Genocide Convention.

This is crucial as it will allow the conduct of in-depth investigations, ensuring

accountability, and potentially bringing perpetrators of genocidal acts to justice in
accordance with the provisions of the Genocide Convention. Failure to take
appropriate measures could reduce efforts to address and prevent acts of genocide
and any other of violations of human rights.

Finally, Israel will have to "submit a report to the Court within one month regarding
the measures it has taken to give effect to the Order."5

The Court also pointed out that all parties are bound by international humanitarian
law; it expresses serious concern for the hostages' well-being and safety called for
their immediate release; thus the hostage situation is considered urgent, and there is
legal and moral obligation to release them immediately.

5
Liberia v. South Africa [1966]
4. Critical analysis and conclusion on the provisional measures granted by the
ICJ

However, the court did not order Israel to stop the war. The case was entered under
the Genocide Convention; so the Court is bound by the provisions of that Convention
when hearing the case. Death and destruction are not sufficient proofs to establish a
violation of the Genocide Convention. Israel's point of defence is that its real
objective and intention was to defeat Hamas which had attacked it on the 7th of
October. Genocide is difficult to prove, because of the need to show or infer the
actual intention to commit genocidal acts.

While the killings of so many Palestinians in Gaza have given rise to allegations that
Israel has committed genocide and has violated international humanitarian law, it is
not possible to bring such allegations before the ICJ since there is no similar
treaty/agreement where the ICJ has power and jurisdiction to entertain this type of
cases. Only international criminal courts have the jurisdiction to investigate and hear
War crimes cases.

Although the orders granted by the ICJ are provisional, they are binding and create
legal obligations on Israel and there is no right of appeal. There are no international
police to enforce rulings of the ICJ, however, the United Nations Security Council is
empowered to enforce the Orders.
 [Link]:

Article 63, STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

Advisory Opinion on Legal Consequences of the Construction of a Wall in the

Occupied Palestinian Territory [2004] ICJ Reports 136
Barcelona Traction, Light and Power Company Limited [1970] ICR Reports
3

Liberia v. South Africa [1966]

Schulten, L. (2024) ' What is third-party intervention at the ICJ?' Deutsche

Welle, 19 January [Online]. Available at What is third-party intervention at
the ICJ? – DW – 01/19/2024

Sagoo, R. (2024) 'Chatham House' [ Online]. Available at South Africa’s genocide

case against Israel: The International Court of Justice explained | Chatham House –
International Affairs Think Tank ( Accessed date 26 JANUARY 2024)