ICJ Indicates Provisional Measures in South Africa v. Israel

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Earlier today the International Court of Justice handed down its order on provisional measures in the genocide case brought by South Africa against Israel regarding Israel’s military operations in Gaza. The outcome was much as expected (I’ll refer readers in that regard to the discussion on the last episode of EJIL: The Podcast). Briefly, the Court found that the legal conditions for the indication for provisional measures were met, in particular that it was plausible that genocide was being committed in Gaza. However, the Court did not indicate the most important measures asked for by South Africa, i.e. it did not order Israel to stop its military operations altogether, unlike in the case brought by Ukraine against Russia. It did indicate provisional measures, which are in most respects similar to its Gambia v. Myanmar order on provisional measures, with some important additions. This post will provide a bottom line analysis of the order, but we’ll have more detailed coverage in the days to come. In sum, reputationally this is a significant blow to Israel, especially in light of the near-unanimity of the Court, and the order will also have bearing on states cooperating with Israel. But Israel avoided an order that would have mandated a ceasefire, instead being ordered to undertake measures that it is saying that it is largely doing anyway.

Today’s order was, in my view, largely a foregone conclusion. The conditions for the indication of provisional measures laid down in the Court’s jurisprudence can easily be met in a situation as harrowing as the one in Gaza. All, that is, but one – the plausibility of the rights (or violations) alleged by the parties.

Recall that the Court’s jurisdiction in this case is based solely on the compromissory clause in Article IX of the Genocide Convention, which means that the existence of any other international crime – war crimes, crimes against humanity – is outside the Court’s jurisdiction. This, in turn, entails that the plausibility of South Africa’s claims hinges entirely on the question of genocidal intent. Did the Israeli officials directing the military operations in Gaza plausibly do so with the intention of destroying the Palestinian people, in whole or in part, rather than (for example) with callous indifference as to the suffering of Palestinian civilians, while the hostilities with Hamas were ongoing? The issue of intent wholly determines both the Court’s decision on provisional measures and its ultimate judgment on the merits in the years to come (when the evidentiary bar will be much higher). If such intent was found to plausibly exist, all of the other conditions for the indication of provisional measures would simply fall into place.

This is precisely what happened. The two most interesting parts of the order are the Court’s findings as to plausibility, and its decision on what measures to indicate (or not). (I leave aside entirely formal issues like standing or the existence of a dispute between the parties, on which the Court has a complex and controversial jurisprudence – the Court was rightly unwilling to avoid deciding this case on the basis that supposedly no dispute existed, a route which, in the present circumstances, would have been reputationally suicidal for the Court).

On plausibility, the conduct comprising the actus reus of genocide was, as a general matter, easy to establish because of the widespread destruction in Gaza. The key question, again, was one of intent. And here, crucially, the Court relied on statements of Israeli officials that could plausibly be read as implying such intent, much as we predicted in our analysis on the podcast (para. 52). However, there is no detailed analysis of these statements in the order, of the kind one would expect in a judgment on the merits. Rather, the Court performs a holistic assessment. It’s also important to note what statements the Court did not include in its analysis as plausibly evidencing genocidal intent – here perhaps the most infamous is Prime Minister Netanyahu’s Amalek speech, which the Court apparently thought was more ambiguous than many have thought. Again it is important to underscore that Israel has its own officials to blame for making the kind of statements that they made.

On other conditions, particularly the existence of urgency and irreparable harm, it is striking that the Court noted statements by various UN Special Rapporteurs and the CERD Committee voicing their alarm at the situation in Gaza and its potentially genocidal and discriminatory aspects – this is particularly striking because, unlike UN fact-finding missions, these special rapporteurs have no greater sight of the key facts in this case than other external observers. Similarly, throughout the order there is also extensive quotation from, and deference by the Court to, important factual assessments by UN (Secretariat) officials. The Court also found that some remedial actions taken by Israel, including warnings of possible prosecutions by the Attorney General, are to be encouraged, but do not suffice to remove the risk of irreparable prejudice (para. 73). Again, this was only to be expected.

The most important question then became what measures to indicate. The Court did not order the most impactful measures sought by South Africa, including those demanding of Israel to stop its military operation altogether or to desist from the destruction of Palestinian life in Gaza. The Court did not, in short, indicate the ceasefire measure that it had previously ordered only in Ukraine v. Russia (a case which is legally substantially different from this one, again as noted in our previous analysis on the EJIL Podcast). That said, the Court (as is its practice) does not explain why it doesn’t consider that a ceasefire order would not be appropriate, but is just exercising its discretion (paras. 75 et seq).

Rather, the Court indicated the same measures – directly tied to the language of the Genocide Convention – that it had previously indicated in Gambia v. Myanmar. But there are some important additions. First, there is a very explicit request to Israel to take all measures to prevent and punish direct and public incitement to genocide, which is more explicit than the one in GvM. Second, there is a very explicit request to Israel to implement immediate and effective measures on humanitarian assistance. Third, like in GvM, the Court asked for a report from Israel on compliance, but here the time-limit for that report is much shorter, just one month.

It was also notable how, in essence as dicta, the Court concluded its analysis by reiterating that all parties to the conflict, including Hamas, remain bound by international humanitarian law, while calling for the release of the hostages still being held in Gaza (para. 85).

Finally, the majorities with which the Court rendered this ruling are very important, especially in terms of public messaging. The Court was near-unanimous in its order. Most of the provisional measures are indicated by 15 votes to 2 (Judge Sebutinde and Judge ad hoc Barak dissenting) – these are the GvM-style measures. The two new additions on direct and public incitement and humanitarian assistance were delivered by 16 votes to 1 (Judge Sebutinde dissenting) – that is, even Judge ad hoc Barak (appointed by Israel) voted for them. This underscores the degree of consensus within the Court.  Judge Barak’s endorsement of the two measures – completely justified in light of the facts on the ground – will not endear him to those segments of the Israeli public that already revile him.

It is also important to note that the US Judge and the Court’s outgoing President, Judge Donaghue, was in the majority on all points of the order. This should, I think, also be an important signal to the Israeli public in particular that the Court’s order is not the result of some anti-Israeli UN conspiracy (not that I am holding my breath on this account). At the time I am finalizing this post the separate opinions are not yet available, and so I will update it later today – in particular, Judge Sebutinde’s dissent will surely be an interesting one, as will the opinion of Judge ad hoc Barak.

UPDATE: I have now had the time to digest the separate opinions, but I won’t be commenting on them in any detail. Judge Sebutinde essentially finds that allegations of genocidal intent are implausible, even while taking into account the relevant statements of Israeli officials. Judge ad hoc Barak does the same. The opinion of Judge Nolte I think should be read carefully; it is quite interesting how he finds that the only plausible possible violation was that of the duty to prevent and punish direct and public incitement to genocide. This should be read in light of the Court’s carefully ambiguous finding in para. 54 of the order that ‘the facts and circumstances mentioned above are sufficient to concludethat 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 fromacts 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. ‘At least some of the rights’ is a somewhat caveated formulation that does not appear in the GvM PM order (para. 56). All of this supports the prediction that, absent extraordinary factual developments, on the evidence as it exists today it will be highly unlikely for a majority of the Court to infer genocidal intent on the merits of this case.

(Many thanks also to Brian in the comments for summarizing some of the separate opinions).

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Alan Nissel says

January 26, 2024

Perhaps the most important outcome in today's preliminary ruling is the Court's (newfound?) willingness to oversee a war.

Brian L. Cox says

January 26, 2024

Thank you for this insightful and timely summary of the provisional measures order, Marko. Like you, I found the alignment of the various judges voting in favor of and against specific provisional measures to be particularly interesting.

After the above article was posted, the separate/dissenting opinions and/or declarations of the 5 judges electing to write individually have now been published.

Judge Barak's separate opinion is particularly perplexing given that he finds it is *not* plausible to conclude that Israel is committing genocide and he *nonetheless* voted in favor of two provisional measures (regarding incitement and humanitarian aid to Gaza). Procedurally, it would seem that the plausibility of the commission of genocide should be (maybe, is?) a threshold requirement for a finding in favor of *any* provisional measures -- even the two J. Barak individually endorses.

Regarding the plausibility analysis presented in the order, personally I remain rather unconvinced (fwiw). On that note, I commend the dissenting opinion published by Judge Sebutinde. To summarize her main point, the scale of the calamity that undeniably exists in Gaza as a result of the ongoing armed conflict is not alone sufficient to even plausibly establish the requisite intent to destroy a group in whole or in part on the basis of the four protected categories (national, ethnical, race, religion). Judge Nolte makes a similar point, but he arrives at a different conclusion regarding the plausibility determination. The extraordinarily low "plausibility" burden of proof at the provisional measures stage of course will not apply on the merits - and several judges have emphasized this distinction in separate writings. It seems reasonable to expect, then, a far different outcome when the merits decision is eventually published (probably long after the current phase of hostilities has concluded).

Regarding the substantive content of the provisional measures, the Court essentially reiterated existing obligations pursuant to the Genocide Convention (measures 1, 2, 3, & 5) pursuant to UNSCR 2720 (2023) regarding humanitarian assistance to Gaza (measure 4). I haven't seen Israel's official response to the Court order, but my sense is that it will be something along the lines of, "We already have obligations to do everything the Court has ordered us to do [except submitting the report required by measure 6], we were complying with these obligations before the Court issued its opinion, and we will continue to do so." If that assessment regarding reinforcing existing obligations is accurate, and given the extraordinarily low standard of proof required at the provisional measures stage, I tend not to agree with your (Marko) characterization that this order is reputationally a significant blow to Israel.

One last point to make regarding the substance of the procedural measures before concluding this rather lengthy comment - because this is a point that has gone largely overlooked so far in early commentary related to the ICJ order. Note that measure # 1 calls on Israel to take all necessary steps to prevent the commission of genocide *in general*, while measure # 2 reiterates that requirement *specifically* in relation its own military. If Israel concludes that military operations by Hamas (including continuing to detain civilian hostages) are carried out with genocidal intent, as has been widely suggested in public discourse, then continuing *Israel's* military campaign can be argued to be in support of measure # 1, namely taking "all measures within its power to prevent the commission of all acts" of genocide committed by Hamas. Just an interesting point to keep sight of as Israel (presumably) begins to implement (arguably, in parallel continues to perform existing obligations) the order published by the Court today.

Thanks again for this insightful initial summary of the order, Marko - definitely looking forward to continuing coverage here on EJT!!

Tamás Hoffmann says

January 26, 2024

"It’s also important to note what statements the Court did not include in its analysis as plausibly evidencing genocidal intent – here perhaps the most infamous is Prime Minister Netanyahu’s Amalek speech, which the Court apparently thought was more ambiguous than many have thought."

I think this is hardly surprising as in the second part of the speech Netanyahu explicitly denies that he has genocidal intent.

He stated that "Whoever dares to accuse our soldiers of war crimes are hypocritical liars who lack so much as one drop of morality. The IDF is the most moral army in the world. The IDF does everything to avoid harming non-combatants. I again call on the civilian population to evacuate to a safe area in the southern Gaza Strip."

https://www.gov.il/en/departments/news/statement-by-pm-netanyahu-28-oct-2023

It seems to me that by omitting this part, South Africa was involved in some serious selective quotation, which seems to raise ethical issues...

Nicolas Boeglin says

January 26, 2024

Dear Professor Milanovic

Many thaks for this extremely interesting post.

I have a question with regard to the point 7 of South Africa requesting the Court to indicate to Israel it has to accept the presence of international fact finding missions:

"(7) The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide; to that end, the State of Israel shall not act to deny or otherwise restrict access by fact-finding missions, international mandates and other bodies to Gaza to
assist in ensuring the preservation and retention of said evidence".

The ICJ answers to thta specific request is:

"(5) The State of Israel shall 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 Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip".

In your view, does it really make sense to ask to Israel itself to provide and preserve evidence that it is committing acts falling within the scope of Art. II and III? It seems to me a little bit strange answer by ICJ, but I´would be happy to have your view on this very particular point.

Yours sincerely

Nicolas Boeglin

Nicolas Boeglin says

January 26, 2024

Nicolas Boeglin says

January 26, 2024

Dear Professor Milanovic

Many thaks for this extremely interesting post.

I have a question with regard to the point 7 of South Africa requesting the Court to indicate to Israel it has to accept the presence of international fact finding missions:

"(7) The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide; to that end, the State of Israel shall not act to deny or otherwise restrict access by fact-finding missions, international mandates and other bodies to Gaza to assist in ensuring the preservation and retention of said evidence".

The ICJ ´s answer to that specific request is:

"(5) The State of Israel shall 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 Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip".

In your view, does it really make sense to ask to Israel itself to provide and preserve evidence that it is committing acts falling within the scope of Art. II and III? It seems to me a little bit strange, but I´would be happy to have your view on this very particular point.

Is it the very first time in ICJ jurisprudence that a State plausibly committing acts falling within the scope of UN Genocide Convention is asked to preserve all evidence? Or is there any precedent case?

Yours sincerely

Nicolas Boeglin

Marko Milanovic says

January 26, 2024

Dear Nicolas,

Thank you for your question. This PM is an almost word-for-word copy of the same PM indicated in Gambia v. Myanmar, with the addition of the reference to Article III of the Convention and the specific description of the protected group. And it's what South Africa asked for. What South Africa didn't get is an order to allow independent fact-finders into Gaza, which the Court didn't order in Gambia/Myanmar either.

Marko

Jonas Pfister says

January 27, 2024

Dear Professor Milanovic and commentors

As a layman I've come to ask myself the question if “insufficient” can still be “effective”.

The Court states in para. 73 of the order that Israel “has taken certain steps to address and alleviate the conditions faced by the population in the Gaza Strip. […] they are insufficient to remove the risk that irreparable prejudice will be caused”. In provisional measures the Court says Israel has to take “effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life”. Can Israel claim, as Mr Cox in his comment suggests, “We already where obligated to do all that, and we did and are doing so” and thereby possibly imply that the measures are, even tough the Court calls them insufficient, still effective or are those ideas mutually exclusive (or not related at all)?

For me it would make little sense for the insufficient steps to be effective, as the steps are insufficient to remove risk of prejudice, hence why PMs are indicated. Therefore, for a measure to be effective (in this case in “enabl[ing] the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life”), it would need to remove (reduce?) the risk of prejudice, which the steps of paras. 64 / 73 are not.

I hope my question and my thoughts on it are somewhat coherent.

Sincerely,
Jonas Pfister

Nicolas Boeglin says

January 27, 2024

Dear Professor Milanovic

Many thanks for your very kind answer to my question and the reference to Gambia/Myanmar case.

Yours sincerely

Nicolas Boeglin

Note: may I refer you to a modest note analysing briefly the content and scope of ICJ order and the call to action made by ICJ that can be interpreted by some details observed yesterday at Peace Palace (in Spanish sorry) available at:

https://derechointernacionalcr.blogspot.com/2024/01/gaza-israel-ordenanza-de-la-corte.html

Yuval Kaplinsky says

January 27, 2024

Thank you for an enlightening post, as well as a great podcast.
Are you in any way surprised that none of the judges, not even the ad-hoc judge from South Africa, did not write a seperate opinion suggesting to add the order to cease the war as asked for by South Africa?

Brian L. Cox says

January 28, 2024

Jonas,

This is a really great point, and something I have also reflected on extensively as well (and I think your thoughts are completely coherent, btw).

There's no question that the reasoning in paras. 64/73 of the ICJ PM order suggests that current humanitarian assistance measures are inadequate. This reasoning is presented in Section V. Risk of Irreperable Prejudice and Urgency, so it's purpose is to explain the justification for issuing PMs...but it doesn't constitute an actual provisional measure.

Skip to the para. 86 where the actual PMs are expressed, the text of the humanitarian assistance PM reads (#4): "The State of Israel shall 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 PM is consistent with relevant text of UNSCR 2720 (2023), particularly para. 2, where the Security Council demands that the parties to the conflict "allow, facilitate and enable the immediate, safe and unhindered delivery of humanitarian assistance at scale directly to the Palestinian civilian population throughout the Gaza Strip."

Even though the reasoning in Part. V of the PM decision indicates current efforts by Israel aren't adequate, then, the direction in the actual PM is no more prescriptive (and actually is *less* detailed) than the text of the UNSCR that is already in effect.

There's a broader discussion to be had about the legitimacy of the Court and the pressure to publish *some* sort of provisional measures. The long and short of that discussion, though, is that if you're a Court that feels you have to say something but you don't want to actually say anything, the safe option is to reiterate obligations that Israel already has in your own PM order. That's my interpretation of what happened with the order, and that's why I think Israel's response should be (and, as it turns out, largely is) to say (paraphrasing, of course), "We already recognize these obligations and we're already abibiding by them." If the Court wanted to be more prescriptive in PM #4 than the existing UNSCR, it could have. It didn't, and instead it just reinforced existing obligations.

Again - really great point about what (I think, anyway) is one of the more important legal aspects of the ICJ PM order.

Ona Benhur says

January 28, 2024

- I read the opinion of Judge Barak [1], in which he refers to 1,200 civilian casualties during the 7th October attacks. "Overall, more than 1,200 innocent civilians" (page 4, paragraph 18).

- On the other hand, Israeli numbers seem to indicate 766 civilian casualties out of approximately 1,200 total deaths [2][3].
766/1200 = 63.8%

- This is very close to the ratio achieved by Israel's own forces during the Gaza offensive. (66%, if we take numbers from Israeli officials [4]).

- In a very similar setting (few kms apart), the actions of Hamas, carried out with blatant disregard for international law, resulted in this ratio. How can, then, the careful application of international law result in almost identical ratios?

- I think because of the factual error in his opinion, Judge Barak couldn't have been aware of this.

[1] - https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-05-en.pdf
[2] -https://en.wikipedia.org/wiki/2023_Hamas-led_attack_on_Israel
[3] -https://web.archive.org/web/20231217222630/https://www.france24.com/en/live-news/20231215-israel-social-security-data-reveals-true-picture-of-oct-7-deaths
[4] -https://edition.cnn.com/middleeast/live-news/israel-hamas-war-12-4-2023/h_858bcd26ff192f7efffffe8866b68907

Michael Webster says

January 30, 2024

I mostly agree with your assessment. However, I disagree with your claim that the actus reus of genocide was “easy to establish because of the widespread destruction in Gaza”. The destruction is evidence only of war. It requires the combination with the mens rea of genocidal intent to convert that destruction into something else. I certainly agree that “Israel has its own officials to blame for making the kinds of statements that they made”. It seems that some of Netanyahu’s ministers are too stupid to understand the legal implications of some of their belligerent rhetoric and inflammatory political language. Nevertheless, I agree with your conclusion that “absent extraordinary factual developments, on the evidence as it exists today it will be highly unlikely for a majority of the Court to infer genocidal intent on the merits of this case”.

I will draw out two points to highlight some of the evidential and inferential difficulties for the Court, as well as the practical difficulties for South Africa, with the actus and mens of the offence in this case. War is destructive by its nature. And this is a hard-fought war mostly in urban and subterranean areas. Every Israeli air- and missile-strike, and every deliberate military action by the Israeli Defense Force, will be based on intelligence, planned, reviewed by military lawyers, and approved by commanders. Most of this information will be highly classified and Israel will only release it selectively. But it will have to be shown that those strike and other military actions, even in aggregate, were not taken to achieve military objectives or for reasons of military necessity.

Further, while military authority is subordinate to civil authority in a democratic state, subordinate commanders and soldiers act on military orders alone. As I understand it, Israel’s Prime Minister and the Defence Minister cannot give orders to military commanders. They give directions to the Chief of the General Staff, who in turn issues orders to subordinate commanders. Each of those military commanders is acutely aware that they bear command responsibility for their actions and orders. So it will have to be shown that the political statements claimed to be of a genocidal character were converted into military orders which were conveyed downward to military execution, or that field commanders and soldiers received those statements as signals to act with genocidal intent in their conduct of military operations.

It seems to me that South Africa will require something akin to the collaborative investigative efforts and financial support of the Nuremberg trials to prove that the Israeli Defense Force is committing acts of genocide in Gaza. Given Israel’s fraught history with the United Nations, and that most of South Africa’s evidence was from Special Rapporteurs etc, Israel will likely be less cooperative and more guarded in its public statements in future. And the accuracy and impartiality of some of those Special Rapporteurs will likely be closely scrutinised at the merits stage of the case. For my part, I do not believe for one moment that the Israeli Defense Force is doing more than conducting military operations in Gaza, lawfully but in an uncompromising manner. In any event, absent those extraordinary factual developments, I do not believe that it could be shown otherwise.