Comparing the ICJ’s Provisional Measures Orders in South Africa v. Israel

Comparing the ICJ’s Provisional Measures Orders in South Africa v. Israel

[Alonso Gurmendi Dunkelberg is a Lecturer in International Relations at King’s College London]

On Thursday, the International Court of Justice (“ICJ” or “the Court”) issued a second round of provisional measures in the case of South Africa v. Israel. As readers will remember, in January, the Court ordered Israel, among other things, to “take all measures within its power to prevent the commission of all acts within the scope of Article II” of the Genocide Convention (see here for the text) and to “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip”.

At the time, there was much debate surrounding how the order should be read, especially considering the Court did not order a ceasefire, as South Africa had requested. For some, the order was, implicitly, calling for one, since one of the acts covered by Article II of the Genocide Convention is “killing members of the group”. Israel, some said, would then need to stop its military operations, as this is the only way to secure a zero-civilian-casualty rate in Palestine.

Others, including myself, were more sceptical. We believed reading the Order and the individual Judges’ separate opinions revealed that the Court’s intent was not to ordera ceasefire, primarily because, if that had been its intent, it would have simply spelled it out. Instead, only Judge Bhandari included wording favourable to this, and in a very vague way: “Going further though”, he said, “all participants in the conflict must ensure that all fighting and hostilities come to an immediate halt and that remaining hostages captured on 7 October 2023 are unconditionally released forthwith”. Judge Sebutinde in turn, categorically dismissed the potential for a ceasefire, calling it “unrealistic”.  

My opinion was rather that the measures imposed were a message to Israel that it could not continue with “business as usual” and comply with the order at the same time. It would need to do something differently – probably at a very low standard – to satisfy the Court. It was not, therefore, an ideal set of provisional measures for those of us who see Israel’s military campaign as patently at odds with existing international law.

This is in part because of the relatively conservative view that the Court has assumed when interpreting the Genocide Convention. Take, for instance, Judge Nolte’s opinion, which I took at the time as a good predictor of where the ICJ might land on this case. Judge Nolte argued that the Court “can play only a limited role in the present proceedings”. Crucially, Judge Nolte argued that finding plausible genocidal intent was “indispensable” for the case going forward. And while for many, this intent is patent in the dozens of statements procured by South Africa in its application, Judge Nolte, and many experts, believe these to be insufficient.

In the Court’s caselaw, genocidal intent needs to be the “only reasonable inference that can be drawn” from these statements. This is a very high bar. Especially considering Israel’s claim that it is taking considerable measures to protect the civilian population (this is why it was South Africa’s contention that the humanitarian actions were part of the genocide as they were deliberately insufficient). But Judge Nolte stated that he was “not persuaded” that South Africa had “plausibly shown that the military operation undertaken by Israel, as such, is being pursued with genocidal intent”.

Judge Nolte compared the Israeli case with the Court’s handling of the Rohingya genocide and noted that “the actions of those who orchestrated the attacks on the Rohingya read as a veritable check-list of genocidal intent” and so the only-reasonable-inference standard could easily be met. As he noted “[i]t was based on these findings regarding genocidal intent that the Court considered the rights under the Genocide Convention to be plausible”.

In short: Unlike Israel, Myanmar could not claim to be doing anything – not even insufficient humanitarian aid – to keep civilians from being harmed, and thus the genocidal intent was very clear. Instead, in the case of Gaza, “[t]he Applicant”, said Judge Nolte referring to South Africa, “must be expected to engage not only with the stated purpose of the operation, namely to ‘destroy Hamas’ and to liberate the hostages, but also with other manifest circumstances, such as the calls to the civilian population to evacuate, an official policy and orders to soldiers not to target civilians, the way in which the opposing forces are confronting each other on the ground, as well as the enabling of the delivery of certain amount of humanitarian aid, all of which may give rise to other plausible inferences from an alleged ‘pattern of conduct’ than genocidal intent”.

Judge Nolte, instead, voted in favour of the January provisional measures under the argument that “certain statements by Israeli State officials (…) give rise to a real and imminent risk of irreparable prejudice to the rights of Palestinians under the Genocide Convention”.  Similarly, these statements “may contribute to a ‘serious risk’ that acts of genocide other than direct and public incitement may be committed, giving rise to Israel’s obligation to prevent genocide”.

In other words, for Judge Nolte, the Palestinians’ conventional rights were not at risk because Israel’s entire military operation was a genocide, but rather because some Israeli politicians were incentivising genocide, and this could lead some soldiers to commit isolated genocidal acts. Judge Nolte finished his declaration pondering the question of “whether the Israeli authorities are unjustifiably restricting the delivery of food and other necessary goods to the entire civilian population in the Gaza Strip”. While he seemed troubled by the UN’s conclusions to this regard, and thus voted for the provisional measure, he did not seem fully convinced that this was the case.

Israel responded to the Court’s order in the worst way possible. The very next day, international media showed images of Israeli government officials, including the National Security and Finance Ministers, dancing in a conference calling for the recolonisation of the Gaza Strip and the so-called “voluntary migration” (i.e. ethnic cleansing) of the Palestinian population.

A few days later, Israeli Prime Minister Netanyahu accused UNRWA – the UN refugee agency in Palestine – of being infiltrated by Hamas. “It’s time the international community and the U.N. itself understand that UNRWA’s mission has to end”, he said. In response, the United States, Canada, Australia, Britain, Germany, Italy, the Netherlands, Switzerland, Sweden, Finland, Estonia, Japan, Austria and Romania suspended contributions to UNRWA, crippling the organisation. Despite Israel’s campaign, after a few months, Sweden, Finland, Canada and Japan have announced they would resume funding, after finding Israeli allegations lacking – but the harm was already done.

In early March, famine began to set over Gaza. As the UN reported, “[f]ifteen children have already died of malnutrition at Kamal Adwan Hospital in Gaza City, and (…) all children under five – 335,000 – are at high risk of severe malnutrition”. A few days later, Israeli troops killed over one hundred Palestinians desperately seeking food. At this point, Israel’s English-language spokesperson, Eylon Levy, began a campaign to argue that Israel was not blocking food from entering Gaza. “The idea that Israel ‘isn’t letting aid in’ is simply a lie”, he tweeted. On March 7th, Levy got into a Twitter fight with British MP, Alicia Kearns, Chair of the British Parliament’s Foreign Affairs Committee, where he argued that the Kerem Shalom Crossing was closed on Saturdays “at the request of the UN”. Something Kearns denied, citing information provided by the UN and the British Government. The debate was settled when the British Foreign Minister penned a letter declaring that “[t]he main blockers remain arbitrary denials by the government of Israel and lengthy clearance procedures including multiple screenings and narrow opening windows in daylight hours”.

Finally, since at least early February, Israel engaged in a diplomatic row with its allies over its plans to move its forces into Rafah, where 1.4 million Palestinians had escaped from the bombing. In March, Netanyahu said Israel would invade Rafah even without support from his allies. Since then, tens of people have been killed in Rafah by Israeli airstrikes.      

This planned offensive in Rafah and the ongoing starvation in Gaza led South Africa to file an Urgent Request for Additional Provisional Measures on March 6. “In addition to causing the death by starvation of Palestinian children (…), Israel has also continued to kill approximately 4,548 Palestinian men, women and children since 26 January 2024”, South Africa argued.

After the first Order, the Court’s composition slightly changed. Judges Donoghue, of the USA; Gevorgian, of Russia; Bennouna, of Morocco; and Robinson, of Jamaica, were replaced by Judges Brant, of Brazil; Gómez Robledo, of Mexico; Aurescu, of Romania; and Tladi, of South Africa. It was this new Court that analysed South Africa’s Urgent Request and issued the second round of provisional measures.

This new Order unanimously held that Israel should “[t]ake all necessary and effective measures to ensure, without delay, in full compliance with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements, as well as medical supplies and medical care to Palestinians throughout Gaza, including by increasing the capacity and number of land crossing points and maintaining them open for as long as necessary”.

Similarly, the Court ordered Israel to “[e]nsure with immediate effect that its military does not commit acts which constitute a violation of any of the rights of the Palestinians in Gaza as a protected group under the [Genocide] Convention (…) including by preventing, through any action, the delivery of urgently needed humanitarian assistance”.

This time around, though, the Judges’ Declarations and Separate Opinions painted a completely different picture as to what had happened behind close doors. From the get-go, the Court’s much more detailed list of requirements – including collaboration with the UN, i.e. UNRWA – hinted that the Court had been dissatisfied with Israel’s actions. Judge Yusuf, of Somalia, even spelled it out. In his separate declaration he noted that “the Court’s indication of further provisional measures in the present Order shows that it is not satisfied that all that should have been done has been done by Israel to prevent the commission of genocidal acts”.

Moreover, seven Judges (Salam, Yusuf, Xue, Brant, Gómez Robledo, Tladi, and Charlesworth) explicitly stated that, in their opinion, the Court should have ordered a ceasefire or that the only way to comply with the order was for Israel to suspend military operations. Judge Salam, of Lebanon, for instance, stated that “the new measures ordered by the Court can only take full effect if the ‘immediate ceasefire for the month of Ramadan’ demanded by the Security Council (…) is duly and fully respected by all the parties”. Judge Yusuf was even clearer: the measures are “an obligation of result which must be acted upon immediately” and “[n]o such result can be obtained without suspending or terminating the aerial bombardments, the ground assaults on urban centres and refugee camps by the Israeli army, and the removal of the obstacles to the delivery of humanitarian aid”. Similarly, in a joint declaration, Judges Xue, Brant, Gómez Robledo and Tladi, noted that “suspension of military operations, including its planned military operation in Rafah, under the circumstances, appears indispensable for any meaningful implementation of the provisional measures indicated”. Lastly, Judge Charlesworth, of Australia, concluded that in her view, “the Court should have made it explicit that Israel is required to suspend its military operations in the Gaza Strip, precisely because this is the only way to ensure that basic services and humanitarian assistance reach the Palestinian population”.  

But perhaps, once again, it is Judge Nolte that best signals what the mood of the Court in general is like. As Accidental Jurist, an account specialised in international law noted on Twitter, the Judge’s position has clearly shifted. Remember that, back in January, Judge Nolte was not persuaded that South Africa had shown that Israel’s actions were genocidal as a whole. His most recent Separate Opinion though, takes a very different tone.

Judge Nolte admits that he “hesitated” about whether the situation in Gaza warranted expanding the provisional measures already ordered in January. Under the rules of the Court, this could only happen if there had been a “change in the situation” in the case that justified it so. Judge Nolte did not want to signal to parties that what the Court was doing was simply issuing a second order because the first one was not complied with, as this would imply that “the Court considers that the threshold for modifying, adding or specifying a provisional measure is low”. As he stated, “[m]y hesitations rather resulted from the fact that this terrible situation would most probably not exist if the Order of 26 January 2024 had been fully implemented”.

To vote for the Order, therefore, Judge Nolte needed to convince himself that there had, in effect, been a serious change in the situation in Gaza that warranted additional measures. Judge Nolte said he took “very seriously recently voiced concerns that Israel is using hunger as a ‘weapon of war’ and the provision of humanitarian aid as a ‘bargaining chip’”. Thus, he went on, through this Order, the Court was not stating that the humanitarian situation in Gaza had “simply deteriorated further, but that the prolonged and widespread deprivation of food has become ‘exceptionally grave’”. Indeed, he says, “famine is imminent, as confirmed by a significant number of deaths by starvation which have already occurred”. Meaning that “the circumstances which are described in the present Order go beyond what the Cout in its Order of 26 January 2024 considered as being encompassed in the ‘serious risk of deteriorating further’”.

Significantly, this determination made Judge Nolte conclude that these new circumstances “reflect a plausible risk of a violation of relevant rights under the Genocide Convention”. This is, arguably, a massive shift. In essence, Judge Nolte has gone from believing, in late January, that South Africa has not even been able to prove that Israel’s military campaign reflects a genocidal intent (and so that it will only be able to prove that Israel is inciting and/or not preventing isolated genocidal acts by its soldiers) to believing, in late March, that it is Israel’s starvation of Gaza that has placed Conventional rights (i.e. presumably, the core right not to be subjected to genocide) plausibly at risk.

This would be remarkable. Two months ago, Judge Nolte believed the case would hinge on whether Israeli officials’ incitements to genocide could plausibly lead to specific and numbered genocidal acts by Israeli troops. He did not believe that Israel’s whole operation in Gaza could amount to genocide. Now, however, Judge Nolte seems to believe that Israel’s starvation of Gaza itself can plausibly constitute a genocide.

At the end of the day, therefore, it looks like Israel’s own conduct has seriously weakened its argument that the existence of (some) humanitarian aid and precautions in attack mean it has no genocidal intent. Instead, it seems, by its own actions, it has lent credence to South Africa’s argument that these humanitarian policies are part of the genocide and demonstrate, rather than disprove, Israel’s genocidal intent. After all, when every single humanitarian agency, including the UN, all of Israel’s allies, and apparently every single  Judge at the ICJ (with the notable exception of Judge ad hoc Barak) seem to believe that Israel is not doing enough to avoid the starvation of Gaza, when does Israel’s claim to the contrary become disingenuous enough to cross the border from mere negligence to actual wilful intent to make Gaza uninhabitable?

To put it bluntly, back in January, I felt it was important for casual observers to measure expectations; that South Africa’s case was a difficult one because the standard for proving genocide at the ICJ was extremely high. At the time, I felt that the Court’s first Order for provisional measures confirmed my suspicions. Now, two months later, reading this second set of provisional measures, and how the Judges themselves have reacted to Israel’s own actions, I am less pessimistic about South Africa’s chances.

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Courts & Tribunals, Middle East, Public International Law
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