[COLUMNIST] South Africa’s application to modify the ICJ provisional measures: Some reflections

The conflict between Israel and Palestine has been taking place for decades since 1947. It was recently that the world started to open its eyes to what is happening between these nations following the infamous event that took place on October 7 last year. The majority of the world are standing for Palestine after they knew the ugly truth behind Israel. South Africa last year has specifically filed an application to the International Court of Justice (ICJ) against Israel for violating its obligation under international law. Recently on 6 March 2024, South Africa filed another application to the ICJ to modify and add additional provisional measures to its orders previously given.

On 29 December 2023, South Africa filed its application to the ICJ to institute proceedings against the state of Israel for committing genocide against the Palestinians in Gaza and West Bank and thus has breached its international obligation under the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”). The ICJ later gave its judgment on 26 January and 16 February 2024, ordering Israel to ensure its compliance with the Genocide Convention and refrain from any action “which might prejudice the right of the Palestinians in Gaza to be protected from acts of genocide”. However, the ICJ refused South Africa’s demand of ceasefire.

Thus, on 6 March 2024, South Africa filed an application to the ICJ to modify and insert additional provisional measures on top of the order given by the ICJ previously. South Africa claimed that it has a right to do so by virtue of Article 41 of the Statute of the ICJ and Article 75 (1) and (3) as well as Article 76 (1) of the Rules of the ICJ which empowers the ICJ to add provisional measures in its order to preserve the perspective rights of either party. This raises the question on whether the ICJ should accept South Africa’s application?

South Africa justifies the need for additional provisional measures by referring to new facts emerged after the ICJ delivered its judgment on provisional measures. Even after the ICJ passed its orders dated 26 January, Israel has not refrained itself from continuing to violate the Genocide Convention by killing the Palestinians and causing them to starve. Israel has persistently caused the poor souls of Palestinians to suffer due to their various malicious acts. Since 26 January, Israel has attempted to defund the United Nations Relief and Works Agency (UNRWA), a body under the UN whose role is to provide relief to the displaced person, i.e., in the current context, the Palestinians. United Nations Children’s Fund (UNICEF), in its 3 March 2024 Report stating that thousands of innocent Palestinian children are dying of starvation due to Israel blocking all humanitarian reliefs, making them out of reach.

The spiteful actions of Israel do not stop there. Israel kept defying the Court’s Order by causing the death of approximately 4,548 Palestinian men, women, and children since 26 January 2024 and wounding a further 7,556, raising the death toll to 30,631 and 72,043 injured. Not to mention that the destruction of schools, mosques, hospitals, healthcare, ambulances, and medics by Israel is still ongoing.

Therefore, it is absurd to say that there is no urgency for the ICJ to accept South Africa’s application for additional provisional measures when Israel gave absolutely no respect to its Orders and continued to commit atrocities on those poor, unfortunate souls in Palestine. This is the opportunity for the ICJ to prove its function as the body which is responsible for upholding international justice and fairness and protecting innocent communities from any kind of tyranny.

It is important to note that what is going on with Palestine and Israel right now is not a mere war, but a genocide and ethnic cleansing by Israel. As of now, more than one million Palestinians have been displaced as their houses have been destroyed, and they are currently being squeezed into Rafah, which Israel intends to attack immediately. Their fates right now depend on ICJ’s upcoming decision on the 6 March 2024 application.

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* Raja Shahril Adnani Raja Shahar is a Fourth Year LL.B and Shariah student and Dr. Fareed Mohd Hassan is a Senior Lecturer at the Faculty of Syariah and Law, Universiti Sains Islam Malaysia, Ranitya Ganindha, Dr. Milda Istiqomah, Anak Agung Ayu Nanda Saraswati and Alfons Zakaria are lecturers at the Faculty of Law, Universitas Brawijaya, Indonesia.