By way of introduction let me quote Richard Falk, noted international law professor and former UN Special Rapporteur on Human Rights in the Occupied Palestinian Territory. Falk: the decision by the ICJ “marks the greatest moment in the history of the [Court]”.

The initial response to the decision on 26 January suggested that South Africa had failed in its application. This flowed from the usual pro-Israel media reporting which concentrated on the failure of the Court to order a ceasefire. True it was that the Court, in the first of its provisional measures, did not use the word “ceasefire”. However, as we shall see, the Court noted that it may express its provisional measures other than in the terms sought by South Africa. It can use a different wordage. In respect of the first provisional measure, wherein South Africa’s draft did use the word “ceasefire”, the Court, when addressing that measure, does not use the word nor advert to its non-use of the word. The Court expressed the first measure thus:

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.

With respect to all nay-sayers, that can only be tantamount to a ceasefire – Israel cannot kill Palestinians. Let me assert the true position. South Africa won the preliminary application.

It is appropriate to consider what was before the Court.

South Africa initiated proceedings asserting breach by Israel of the Genocide Convention. Those proceedings contemplate a substantial hearing with the tendering of evidence to be tested formally. That hearing would always be down-the-track, some time in the future.

As with many litigious matters, consideration needed to be given to what was to happen in the interim. Was there a need to make orders to preserve the position, and to facilitate the ultimate hearing. South Africa saw such a need, and sought some six provisional........

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