Dear Readers,
This brief edition explains the International Court of Justice (“ICJ”) order issuing provisional measures in South Africa v. Israel this past Friday, January 25, 2024.
If you have not had a chance to do so, I break down the case in a prior edition, including an explanation of provisional measures.
A quick note: I am writing this much more quickly than usual in order to be timely. I am also writing this after doing a lot of legal writing all day. Please forgive any typos or less than graceful phrasing.
The ICJ Decision
At 7AM Eastern time on January 25th, the ICJ went live with ICJ President Joan Donoghue reading out the order. I listened to the full reading of the opinion that morning.1
I listened with some trepidation as the ICJ began its overview of the case with the attacks of October 7, 2023,2 in contrast to South Africa’s meticulous historical outlay in its 84-page application to the ICJ placing Israel’s current assault on Gaza into a settler colonial, apartheid context. (Again, please look at my previous post for more on this3). When the Court started here, I thought for sure that the ICJ would find against South Africa’s claim of genocide and refuse to issue provisional measures.
But, in sum, the Court did find that South Africa’s application and presentation demonstrated that there is a plausible case of genocide being perpetrated by Israel against the Palestinians in Gaza. As a result, the Court issued legally binding provisional measures to which Israel must adhere while the ICJ adjudicates South Africa’s case against Israel — likely to take years.
Here is how the ICJ explained its decision.
The Legal Hurdles of Jurisdiction and Standing (don’t worry, I explain)
The Court outlined that it had jurisdiction over (or the authority to hear) the case, because South Africa submitted sufficient evidence to show an active dispute between South Africa and Israel as is required for the ICJ to entertain the case.
The ICJ also determined that South Africa had standing to bring the case — meaning that South Africa has the legal authority or legal permission to bring this case against Israel. The Court explained, at paragraph 33, this is because South Africa is a signatory of the Genocide Convention, stating:
any State party to the Genocide Convention may invoke the responsibility of another State party, including through the institution of proceedings before the Court, with a view to determining the alleged failure to comply with its obligations erga omnes partes under the Convention and to bring that failure to an end.
The court could then move on to the meat of South Africa’s application for provisional measures.4
What did the ICJ find as to the question of genocide?
The ICJ summarized South Africa’s case, including its arguments as to Israel’s intent to commit genocide, along with additional statements made UN officials since the presentations were made on January 11 and 12 in paragraphs 45 through 53.
The Court found the following:
In the Court’s view, 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. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention.
In other words, the ICJ found it plausible that Israel’s actions in Gaza constitute a genocide or that there is a a risk of genocide against Palestinians in Gaza according to the evidence presented by South Africa and the Court’s own review of later statements by United Nations officials and others.
The ICJ ultimately decided that there was enough evidence presented to show that there is a plausible risk that Israel is perpetrating a genocide.
I have seen some media coverage, and frankly members of the US government, saying the ICJ has not found Israel “guilty” of genocide. That is technically true. The Court has yet to fully consider the merits of this case, hear witnesses, etc. as will happen next, and therefore, the Court has not determined guilt.
The Court has, however, indicated that while it considers the merits of the case, there is enough evidence to show that the case can move forward to the merits phase because South Africa has shown that Israel’s perpetration of a genocide is plausible, and as a result, the Court is intervening now with provisional measures until it decides on the merits.
What is in the ICJ order?
First, the ICJ then needed to determine “the condition of the link between the plausible rights claimed by South Africa and the provisional measures requested.” This means that the Court needed to decide whether the measures South Africa requested had a nexus or relationship with the plausible risk of genocide, as found by the Court.
The Court stated
that, by their very nature, at least some of the provisional measures sought by South Africa are aimed at preserving the plausible rights it asserts on the basis of the Genocide Convention in the present case, namely the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts mentioned in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention. Therefore, a link exists between the rights claimed by South Africa that the Court has found to be plausible, and at least some of the provisional measures requested.
Yes, the Court found that “at least some” of the provisional measures have a sufficient link to protecting “the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts” perpetrated by Israel.
Further, the Court determined the rights of the Palestinians in Gaza “are of such a nature that prejudice to them is capable of causing irreparable harm.” In essence, if the ICJ opted not to issue an order while the case progressed to the merits stage, there would be a “real and imminent risk” of irreparable harm and irreparable consequences.5
The Provisional Measures
The Court issued the following provisional measures (they are direct quotes from the Summary of the Order), with my explanation beneath each measure:
“Israel must, in accordance with its obligations under the Genocide Convention, 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 [the Genocide] Convention.”
Here, the Court ordered Israel to take “all measures” to prevent the commission of a genocide. This means that Israel must prevent the following acts according to the Genocide Convention:
(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 the intent to destroy in whole or in part a group.
“Israel must ensure with immediate effect that its military forces do not commit any of the above-described acts.”
AND, the Court ordered Israel to make sure that its military does not commit the acts outlined in the section above. Ultimately, the Court stated that the Israeli military must stop committing the above acts.
“Israel must take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip.”
I think this speaks for itself. Public officials, leaders, members of the military, and others cannot be making statements or taking actions intended to spur others into action,6 specifically to commit genocidal acts — meaning the acts specifically outlined above — and in fact, Israel has an obligation to prevent such incitement. If people do incite genocidal acts, Israel has an obligation to punish them.
“Israel must 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.”
This one also speaks for itself. Israel has to allow aid into Gaza.
“Israel must also take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Genocide Convention against members of the Palestinian group in the Gaza Strip.”
Here, the Court is cautioning Israel that it has been ordered not to cover up, destroy, or otherwise disappear evidence of genocide. The point here is that Israel is now on notice that the Court has found South Africa’s accusations of genocide plausible and thus the case will proceed. Therefore, Israel now has a legal obligation not to obstruct the process by destroying evidence.
“Israel must submit a report to the Court on all measures taken to give effect to this Order within one month, as from the date of this Order. The report so provided shall then be communicated to South Africa, which shall be given the opportunity to submit to the Court its comments thereon.”
Israel has been ordered to put into effect the above provisional measures and inform both the Court and South Africa as to the efforts it has made to comply with the Court’s orders. Israel’s report is due in one month. If South Africa does not think that Israel has complied with the Order, or that it has not taken sufficient action to stop genocidal acts in Gaza, South Africa can submit a reply to Israel’s report and let the Court know it disapproves and why.
Finally, separate from the legally binding Order, but still within its pages, the Court
deem[ed] it necessary to emphasize that all parties to the conflict in the Gaza Strip are bound by international humanitarian law. It is gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release.
How come there is no mention of a ceasefire?
In an effort to be brief, the answer is — I do not know. I am reading and learning myself about the inner workings of the ICJ and what an Order like this ultimately means.
It is important to reiterate, however, that the Court unequivocally ordered Israel to take specific actions to cease, prevent, and punish genocidal acts and incitement of genocide.
Now what?
Though the ICJ does not have any ability to enforce its rulings, much like the US Supreme Court, it’s decisions are legally binding on the parties. This means that Israel has a legal responsibility to comply with the Court’s provisional measures.
In all likelihood, however, it will fall on countries from around the world, the United Nations, the UN Security Council, and broader public pressure to ensure that Israel complies. So far, the Western nations that hold veto power on the Security Council, specifically the US, do not appear to agree with the ICJ’s Order or inclined to enforce that Order.
At the moment, despite the Court’s order, Israel has not abated its genocidal and violent ethnic cleansing of Palestinians in Gaza. Nor has aid been allowed in, and when it has, people trying to access the aid have been shot at and shelled.
For many Palestinians who I read, follow, and listen to, along with the Palestinians in my life, the ICJ ruling created mixed feelings. On the one hand, it was a relief that the ICJ recognized the Palestinian people as human beings, who have the right to be protected by the Genocide Convention, and who are currently experiencing at least a plausible genocide perpetrated against them by Israel.
On the other hand, many note that the likelihood of any countries enforcing the ICJ Opinion is very slim, based both on historical precedent and current actions. They do not think that this Order will change what Israel is doing in Gaza, or the impunity with which it carries out that violence and devastation.
As a result, the provisional measures appear to be a very minor victory in name only.
In an upcoming edition, I will discuss another case that was brought in the US — Defense for Children International — Palestine v. Biden. A group of Palestinian-American individuals and organizations sued Joe Biden, Antony Blinken, and Lloyd James for failure to prevent genocide and complicity in genocide.
Respectfully submitted,
Amy
You can read a summary of its opinion here.
As I hope is clear from my previous posts, and the associated resources, the issues we are watching unfold now, including genocide, began long before October 7, 2023. That is not meant in any way to distract from the loss that many people experienced on that day, that is simply to say that the ethnic cleansing of Palestinians has been ongoing since the early part of the 20th century.
As I explained in the last edition, the ICJ will likely not hold full hearings and decide on the full merits of South Africa’s case — meaning whether or not Israel failed to prevent and actively committed genocide against the Palestinians of Gaza — for another few years, based on the trajectory of other genocide cases the court has heard.
In its Summary of the Order, the Court found
that the civilian population in the Gaza Strip remains extremely vulnerable. It recalls that the military operation conducted by Israel since 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. 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. The World Health Organization has estimated that 15 per cent of the women giving birth in the Gaza Strip are likely to experience complications, and indicates that maternal and newborn death rates are expected to increase due to the lack of access to medical care. In these circumstances, the Court considers that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment.
This is an admittedly simplified definition of a rather interesting and somewhat complicated legal term.