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63. South Africa submits that there is a clear risk of irreparable prejudice to the rights of the Palestinians in Gaza and to its own rights under the Genocide Convention. It asserts that the Court has repeatedly found that the criterion of irreparable prejudice is satisfied where serious risks arise to human life or other fundamental rights. According to the Applicant, daily statistics stand as clear evidence of urgency and risk of irreparable prejudice, with an average of 247 Palestinians being killed, 629 wounded and 3,900 Palestinian homes damaged or destroyed each day. Moreover, Palestinians in the Gaza Strip are, in the view of South Africa, at
“immediate risk of death by starvation, dehydration and disease as a result of the ongoing siege by Israel, the destruction of Palestinian towns, the insufficient aid being allowed through to the Palestinian population and the impossibility of distributing this limited aid while bombs fall”.
The Applicant further contends that any scaling up by Israel of access of humanitarian relief to Gaza would be no answer to its request for provisional measures. South Africa adds that, “[s]hould [Israel’s] violations of the Genocide Convention go unchecked”, the opportunity to collect and preserve evidence for the merits stage of the proceedings would be seriously undermined, if not lost entirely.
64. Israel denies that there exists a real and imminent risk of irreparable prejudice in the present case. It contends that it has taken—and continues to take—concrete measures aimed specifically at recognizing and ensuring the right of the Palestinian civilians in Gaza to exist and has facilitated the provision of humanitarian assistance throughout the Gaza Strip. In this regard, the Respondent observes that, with the assistance of the World Food Programme, a dozen bakeries have recently reopened with the capacity to produce more than 2 million breads a day. Israel also contends that it continues to supply its own water to Gaza by two pipelines, that it facilitates the delivery of bottled water in large quantities, and that it repairs and expands water infrastructure. It further states that access to medical supplies and services has increased and asserts, in particular, that it has facilitated the establishment of six field hospitals and two floating hospitals and that two more hospitals are being built. It also contends that the entry of medical teams into Gaza has been facilitated and that ill and wounded persons are being evacuated through the Rafah border crossing. According to Israel, tents and winter equipment have also been distributed, and the delivery of fuel and cooking gas has been facilitated. Israel further states that, according to a statement by its Defence Minister of 7 January 2024, the scope and intensity of the hostilities was decreasing.
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65. The Court recalls that, as underlined in General Assembly resolution 96 (I) of 11 December 1946,
“[g]enocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations”.
