Becker: Crisis in Gaza: South Africa v Israel at the International Court of Justice (or the Unbearable Lightness of Provisional Measures)

Michael A. Becker (Trinity College Dublin - Law) has posted Crisis in Gaza: South Africa v Israel at the International Court of Justice (or the Unbearable Lightness of Provisional Measures) (Melbourne Journal of International Law, forthcoming). Here's the abstract:

In the early hours of 7 October 2023, Hamas and other Palestinian armed groups in the Gaza Strip launched a set of attacks across southern Israel, killing more than 1,200 people and abducting 252 people to be held as hostages. Israel unleashed an overwhelming military response, with grave humanitarian consequences for the Palestinian population of Gaza. On 29 December 2023, South Africa initiated proceedings against Israel at the International Court of Justice (ICJ) alleging violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide based on Israel's response to the 7 October attacks. This article examines South Africa's litigation of the Gaza conflict through its use of the provisional measures procedure at the ICJ. Part I provides an overview of the humanitarian crisis and the polarizing effect of Israel's military operation in Gaza. Part II examines South Africa's four attempts to obtain provisional measures and the Court's decision to indicate such measures on three occasions within a four-month period. Part III considers the relative ineffectiveness of the provisional measures-their 'unbearable lightness' in a situation of extreme gravity and examines doctrinal issues that emerged along the way, including the nature of the Court's 'plausibility' test at the provisional measure stage and the procedure for seeking additional or modified measures. Part IV concludes by considering challenges that lay ahead in the ICJ case-for the parties, for the Court, and for the Palestinians of Gaza.