Assessing the Contents of the ICJ’s Latest Provisional Measures Order in South Africa v. Israel

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In its application instituting proceedings against Israel last December, South Africa requested the International Court of Justice (ICJ) indicate a provisional measure ordering Israel to “immediately suspend its military operations in and against Gaza” (para. 144(1)). Since then, in successive orders and decisions dated 26 January, 16 February, and 28 March, the Court declined to order a cessation of hostilities. In its 28 March order the judges moved closer to a ceasefire measure but ultimately focused on the imminent outbreak of famine in Gaza. But in its latest order, dated 24 May, it seems the judicial tide has turned in favor of more decisive action by the Court in order to protect a besieged population where its previous measures have gone largely unimplemented.

Accordingly, in response to South Africa’s urgent request for fresh provisional measures concerning Israel’s ground offensive in Rafah, it appears the ICJ has, finally, opted to intervene in its most forceful manner yet to prevent the acute intensification of the already catastrophic humanitarian calamity engulfing the Palestinians of Gaza. The Court, in addition to reaffirming its previous measures (para. 15(1)), indicated three new provisional measures, all by a vote of 13-2, with Vice-President Sebutinde and Judge ad hoc Barak dissenting from all paragraphs of the dispositif.

This post does not explore the Court’s reasoning in establishing the factual situation in Gaza or the fulfillment of the requirements for the indication of provisional measures. Instead, it examines the particular obligations imposed by the Court’s additional measures and situates them in relation to the prospect of the Court ordering a full Gaza-wide ceasefire.

The Chapeau of the Dispositif

As a preliminary matter, the specific reference to the Genocide Convention in the chapeau of the order’s dispositif (para. 57(2): “The State of Israel shall, in conformity with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide…”) must not be interpreted as constraining the material applicability of the Court’s provisional measures. In Ukraine v. Russia, the ICJ held that the similar mention of a specific treaty instrument in such a chapeau “refers to the source of the rights which the measure seeks to preserve and does not qualify the measure [or confer] discretion upon the Party addressed to decide whether or not to implement the measure indicated” (para. 391). The above chapeau thus cannot be constructed as a contextual constraint on the applicability of the Court’s additional provisional measures.

First Measure on the Suspension of the Rafah Offensive

Immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part

The Court’s first provisional measure (para. 57(2)) is undeniably its most anticipated as it finally abandons “constructive ambiguity” in light of its failure at eliciting Israel’s compliance thus far, positively ordering Israel to cease a certain offensive in its entirety. However, the confusing wording employed by the Court has generated considerable discussion (e.g., Talmon, Matthews, Heller, Haque, and Dill) as to whether the phrase “which may inflict … in whole or in part” qualifies the requirement for Israel to halt certain military activities, or simply describes the activities referred to.

This phrase functions as a relative clause, a type of dependent clause that serves as an adjective. In the present proceedings, the Court was explicitly tasked with assessing whether Israel’s assault on Rafah entails an urgent risk of irreparable harm to or prejudice against plausible rights under the Genocide Convention. On this question, the Court concluded as follows:

[T]he Court finds that the current situation arising from Israel’s military offensive in Rafah entails a further risk of irreparable prejudice to the plausible rights claimed by South Africa and that there is urgency, in the sense that there exists a real and imminent risk that such prejudice will be caused before the Court gives its final decision (para. 47).

Thus, the Court has already found that the Rafah offensive meets the qualification of the relative clause, rendering its redundant application to the Court’s order on halting this specific offensive problematic. The ICJ indicates provisional under Article 41 of its statute “if it considers that circumstances so require.” If the caveat conditioned the first half of the sentence, it could be rephrased, in essence, as requiring Israel to ‘immediately halt its military offensive if it considers that circumstances so require.’ This measure thus becomes meaningless if it is subject to ex post qualifications the procedure of its indication already determined. Confirming this interpretation, Judge Nolte wrote that “this measure does not concern other actions of Israel which do not give rise to such a risk” (para. 25), implicitly acknowledging that the Court has already found that the Rafah offensive specifically does meet the apparent qualifications of the relative clause.

As others have noted, the convoluted sentence structure employed in this measure muddies its meaning unnecessarily, necessitating analysis of considerable detail. The declarations of Judge Nolte and Judge Aurescu suggest the formulation was likely a consensus-building exercise; but as Juliette McIntyre noted, “a Court does not need consensus as much as it needs clarity.” Regardless of this frustrating vagueness, it cannot be convincingly contended that this first measure did anything short of ordering an immediate cessation of the Israeli military offensive in Rafah.

Second Measure on Humanitarian Aid

Maintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance

While it may appear that Israel’s obligation to facilitate the unimpeded transfer of humanitarian aid to Gaza is dealt with in less substantive detail in this measure (para. 57(2)(b)) than the Court’s 28 March order, the measures instead build on one another. The Court’s present order, in apparent reaction to the non-implementation of its previous measures, tailors these previous measures to the specific context of the closure of the Rafah crossing, whose seizure by Israeli forces has choked off a crucial source of aid for the Palestinian population. 

The ICJ emphasized that this measure must be read in conformity with its 28 March order requiring the “unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance” (para. 51(2)(a)). In the present order, the Court underscores that Israel’s observance of this previously indicated measure “necessitates that the Respondent maintain open land crossing points, and in particular the Rafah crossing” (para. 52). It is thus integral to view the additional measure in conjunction with the other measures already in force regarding humanitarian aid, particularly that imposing the obligation to cooperate with UN agencies in aid delivery (para. 51(2)(a)).

Third Measure on Access of UN Investigative Bodies

Take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide

While overshadowed in immediate significance by the first measure on halting the Rafah offensive, the Court’s third measure (para. 57(2)(c)) is particularly interesting as it is truly a first of its kind. In previous inter-State cases involving the alleged commission of international crimes, the Court has indicated measures requiring the preservation of evidence (e.g., Gambia v. Myanmar, para. 86(3); Canada and the Netherlands v. Syria, para. 83(2)), including in its first South Africa v. Israel order (para. 86(5)). Like in these past orders, the Court’s third measure emphasizes avenues of accountability beyond the inter-State paradigm of its own proceedings.

In requiring Israel to ensure access to Gaza of any UN body mandated to investigate genocide, the ICJ, with reference to its 26 January order, found that this additional measure was necessary “in order to preserve evidence related to allegations of acts falling within the scope of Article II and Article III of the Genocide Convention” (para. 51). This measure is a further indictment of the inefficacy of Israeli domestic investigations of isolated incidents, which some have (erroneously) pointed to in an attempt to argue the inadmissibility of charges leveled against Prime Minister Netanyahu and Defense Minister Gallant by the Prosecutor of the International Criminal Court (ICC).

The body most obviously covered by this measure is the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory and Israel. Under Human Rights Council Resolution S-30/1, the Commission is mandated to “[e]stablish the facts and circumstances that may amount to … crimes” (para. 2(a)). As an international crime. genocide is undoubtedly included within the Commission’s investigative mandate, particularly given that no other crimes are specifically mentioned as to suggest by omission the exclusion of genocide. While less explicitly, genocide also falls under the mandate of the UN Special Rapporteur on the Occupied Palestinian Territories as its prohibition is a ‘principle and basis of international law’ within the meaning of their mandate (Commission on Human Rights Resolution 1993/2, para. 4(a)).

Yet the body that regrettably falls conspicuously outside the third measure is host to the only international investigation presently capable of resulting in the criminal prosecution of Israeli officials for the crime of genocide: the ICC. States are only required, under Article VI of the Genocide Convention, to cooperate with an international criminal tribunal investigating genocide if they have accepted its jurisdiction, either through a treaty they are party to (like the Rome Statute) or by virtue of a Security Council resolution invoking Chapter VII of the UN Charter (Bosnia v. Serbia, para. 445). The obligations incumbent on States under Article VI with respect to the ICC have generated much scholarship in the context of the Al Bashir case (e.g., Akande, Sluiter, Gillett), but is too complex of an issue to be dealt with here. 

A Total Ceasefire in Gaza?

Regrettably, the Court did not go as far as it did in Ukraine v. Russia, where it ordered that “[t]he Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine” (para. 86(1)). By contrast, these latest measures address military activities only within a specific geographic context—Rafah. But it equally bears recalling that many of the judges on the bench have expressed their belief that a total suspension of Israeli offensive military action in Gaza is already implicitly required in order for Israel to fully comply with the measures previously indicated by the Court (see President Salam, para. 11; Judge Yusuf, para. 10; Judges Xue, Brant, Gómez Robledo, and Tladi, para. 8; Judge Charlesworth, para. 7; Judge Tladi, para. 19).

In the context of the Court’s most recent order, Judge Notle wrote that the record before the Court left him “with strong doubts as to whether Israel is able and willing to simultaneously conduct its current military offensive in Rafah and ensure the most basic conditions for the survival of Palestinians” who have or will arrive in designated humanitarian zones (para. 20). The factual record of the devastation across Gaza leaves no reason why this logic cannot be generalized to Gaza as a whole, not only Rafah—if one were simply to replace the word “Rafah” with “Gaza” and perhaps add “continue too” before the word “conduct,” the above passage from Judge Nolte’s declaration would remain true to the factual circumstances. If both the facts on the ground and the approach of the ICJ continue to trend as they have—respectively towards intensifying devastation and increasing judicial scrutiny—an additional provisional measure mandating a total ceasefire is, rather than possible, quite probable.

Conclusion

Both in the context of the 28 March order (Judge Yusuf, para. 8; Judge Nolte, para. 4) and the present one (see Judge Nolte, paras 16, 20–24; Judge Aurescu, para. 5; Judge Tladi, para. 19), the judges have lamented the blatant non-implementation of the Court’s binding orders. Both these orders have been indicated, each with successively greater specificity, in response to Israel’s persistent non-compliance with the Court’s previously indicated broadly framed measures. The Court’s growing concern regarding Israel’s non-compliance is also reflected in its decision to order the government to report to the Court within a month on measures taken to give effect to its additional measures (para. 57(3)), as it previously did in its first order (para. 86(6)) and has done in other cases involving precarious humanitarian situations (e.g., Gambia v. Myanmar, para. 86(4); Armenia v. Azerbaijan, para. 74(3)).

While Israel has complained that South Africa is asking the ICJ to “micromanage” an armed conflict (p. 13, para. 31), it is Israel, in its persistent failure to comply with provisional measures, that has prompted the Court’s departure from its “Solomonic” tradition in ensuring the protection of rights and the implementation of its orders. Israel’s conduct since the ICJ’s order gives one little hope that this set of provisional measures will mark a departure from its track record of non-compliance. Perhaps the time when this refusal to comply will elicit truly decisive action from the Court—a total ceasefire order—is close. For the sake of the humanitarian catastrophe engulfing the Palestinian population of Gaza, all of humanity should hope it is.

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