The ICJ’s Provisional Measures Order in the South Africa v. Israel Case: Unsurprising; Politically and Legally Significant

[Milena Sterio is the Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law at Cleveland State University’s Cleveland-Marshall College of Law and Managing Director at the Public International Law & Policy Group.]

On January 26, 2024, the International Court of Justice issued five provisional measures in the South Africa v. Israel case, brought by South Africa under the Genocide Convention. The purpose of this post is to briefly analyze the Court’s holding by focusing on unsurprising, surprising, and particularly significant elements of this decision. While it is uncertain whether the Court will find at the merits stage that genocidal acts have been committed by Israel in the Gaza Strip, it is unquestionable that the provisional measures stage represents a victory for South Africa.

Several of the Court’s findings were unsurprising. First, the Court found that there was a genuine dispute under Article IX of the Genocide Convention. According to the Court, “the Parties appear to hold clearly opposite views as to whether certain acts or omissions allegedly committed by Israel in Gaza amount to violations by the latter of its obligations under the Genocide Convention.” (para. 28). The Court’s analysis here is entirely consistent with its prior case law, and in particular the Ukraine v. Russia provisional measures order.

Second, the Court found that South Africa had standing to sue. South Africa had argued that any state party to the Genocide Convention has standing to sue in order to enforce the various provisions of the Convention; the Court agreed, in line with its previous holdings in The Gambia v. Myanmar case, where the Court had already established that all states have standing to sue in order to enforce all state parties’ obligations under the Convention (see here for an excellent post discussing this case and this particular line of reasoning by the ICJ). The Court thus noted that “all States parties to the Convention have a common interest to ensure the prevention, suppression and punishment of genocide,” and that “[s]uch a common interest implies that the obligations in question are owed by any Sate party to all the other States parties to the relevant convention; they are obligations erga omnes partes, in the sense that each State party has an interest in compliance with them in any given case.” (para. 33).

Third, the Court held that the standard to order the issuance of provisional measures had been met, as the rights sought to be protected (the rights of Palestinians to be free from genocidal attacks) were plausible, as the rights sought to be protected would be irreparably harmed, and as there was a genuine urgency. The reason that this part of the Court’s opinion is relatively unsurprising is that South Africa only had to prove that the rights for which it was seeking protection were plausible (the rights of Palestinians in Gaza to be protected from genocidal acts). This was a relatively low threshold for South Africa, as the Court did not have to find that genocidal acts in Gaza had in fact occurred, but only that South Africa’s claim for the protection of rights under the Genocide Convention was plausible. After citing various statements from UN officials, special rapporteurs and other international bodies regarding the disastrous situation in Gaza coupled with seemingly genocidal rhetoric from various Israeli officials, the Court concluded that “the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.” (para. 54). In addition, after citing additional statements by the UN Secretary-General as well as other UN and international organization officials, the Court found that “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment” (para. 72), and there is urgency and “a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible.” (para. 74).

Fourth, as many had predicted, the Court ordered the issuance of some provisional measures, including that Israel must take all measures to prevent the commission of genocidal acts in Gaza, and that Israel must enable the provision of humanitarian assistance to Gaza. In fact, not ordering any provisional measures at all would have seriously undermined the Court’s legitimacy and reputation, in light of the catastrophic situation on the ground in Gaza.

Fifth, it is also not surprising that the Court stopped short of ordering a ceasefire, as had been requested by South Africa, and as the Court had done in the Ukraine v. Russia case. The Ukraine situation is factually and legally distinguishable from Gaza, and ordering Israel to agree to a ceasefire in Gaza would have arguably prevented Israel from engaging in defensive military action. While it is legally debatable whether Israel has the international law right to self-defense in the context of Gaza (see various posts on this topic here and here and here), many in the international community believe that Israel does have the right to combat Hamas, and it is not surprising that the world court refrained from ordering Israel to stop all military action altogether. In sum, various parts of the Court’s opinion were predictable and are unsurprising.

Some of the Court’s findings, however, were more surprising. First, on most provisional measures, fifteen out of the seventeen judges voted in favor; such a significant majority vote signals judicial agreement on legal issues underlying the issuance of provisional measures as well as sends a strong legal and political message to Israel that its current course of action is unacceptable. Second, Judge Sebutinde was the lone dissenter on all provisional measures, as even ad hoc Judge Barak voted with the majority on two provisional measures (that Israel must take all measures to prevent and punish the direct and public incitement to commit genocide, and that Israel must enable the provision of humanitarian assistance to Gaza). Third, the Court cited a variety of Special Rapporteur reports, as well as statements by different UN officials. The Court presumably cited such reports and statements for their accuracy and veracity – while there is nothing to suggest that such reports and statements are inaccurate, many of them are not based on specialized fact-findings but instead reflect external observations. In addition to the fact that the Court cited to such reports, it is also interesting to note that the Court did not specifically analyze such reports or engage in its own in-depth assessment of the situation; instead, the Court cited the various reports holistically and then offered relatively brief conclusions – both regarding the facts on the ground but also regarding the existence of genocidal intent (in the context of its plausibility analysis). Thus, some – more minor – portions of the Court’s opinion are surprising.

Finally, some portions of the ICJ’s order are particularly significant. First, the Court firmly confirmed that the situation on the ground in Gaza is catastrophic. While concluding that the situation was urgent, thus necessitating the ordering of provisional measures, the Court held that:

The Court considers that the civilian population in the Gaza Strip remains extremely vulnerable. It recalls that the military operation conducted by Israel after 7 October 2023 has resulted, inter alia, in tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities and other vital infrastructure, as well as displacement on a massive scale (see paragraph 46 above). The Court notes that the operation is ongoing and that the Prime Minister of Israel announced on 18 January 2024 that the war “will take many more long months.” At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating.” (para. 70)

Such a proclamation of both catastrophic civilian harm as well as urgency is particularly significant as it establishes the existence of tremendous humanitarian suffering and as it thus shapes future military, political and legal responses to the situation.

Second, although the Court stopped short of ordering a ceasefire, as it had done in the Ukraine v. Russia case, it did hold that Israel “must, in accordance with its obligation under the Genocide Convention, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts” (para. 86) within the scope of the Genocide Convention. Moreover, the Court held that Israel “must take all measures within its power to prevent and punish the direct and public incitement to commit genocide.” (para. 86). These provisional measures although not equivalent to the ordering of a ceasefire impose significant limitations on Israel, as they clearly impose on Israel a duty not to engage in military action which may amount to genocide. To the extent that the ongoing Israeli military efforts in Gaza amount to genocidal actions, such efforts must therefore stop, according to the Court’s provisional measures order.

Third, the United States’ judge, Joan Donoghue, voted in favor of all five provisional measures; such a strong vote from an American judge signals further disapproval of the ongoing Israeli military action in Gaza from Israel’s strongest ally. It will be interesting to follow subsequent U.S. policy vis-à-vis Israel, and whether the present provisional measures opinion curtails future U.S. political and military support for Israel.

Fourth, as noted above, fifteen out of seventeen ICJ judges agreed on the issuance of all provisional measures. Although it is doubtful that the majority of ICJ judges will actually find that Israel has committed genocide in Gaza, at the merits stage, it is significant that tremendous judicial agreement seems to exist regarding the appropriateness of issuing provisional measures in order to halt the plausible allegations of genocidal conduct. The present provisional measures holding, squarely in line with the Court’s prior provisional measures holdings in the Gambia v. Myanmar and Ukraine v. Russia cases, thus further underscores the Court’s stance on its own role in the prevention of genocide.

In conclusion, the ICJ’s holding in the South Africa v. Israel is mostly unsurprising, legally and politically significant, and represents a victory for South Africa at the provisional measures stage. Although any concrete enforcement of this ICJ order remains unlikely in light of the United States’ veto power on the Security Council, the order itself amounts to an international legal obligation for Israel to prevent the commission of genocidal acts in Gaza.