Provisional Measures of the International Court of Justice on Israel — A Point of View

One may argue that this is “judicial evasion” and claim that failing to address a problem can transform it into a looming crisis.

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Legal Counselor of the Ministry of Foreign Affairs of Israel Tal Becker (C) looks on at the International Court of Justice (ICJ) in The Hague on January 12, 2024, prior to the hearing of the genocide case against Israel, brought by South Africa. REMKO DE WAAL / AFP

You can’t escape the responsibility of tomorrow by evading it today. – Abraham Lincoln

Provisional Measures

On 26 January 2024 the International Court of Justice issued provisional measures with regard to the application of South Africa against Israel where  South Africa  put forth its arguments on  January 11 2024 before the ICJ following its late December filing of a case against Israel, alleging Israel’s engagement in “genocidal acts” against Palestinians in Gaza.

The majority of at least 15 out of 17 judges supported implementing the provisional measures, which were endorsed by the court’s president, Joan Donoghue from the United States. Regarding the allegations made by South Africa against Israel concerning acts in Gaza potentially violating the Genocide Convention, the judges stated that some of these acts and omissions could indeed fall within the Convention’s provisions. The ruling mandated Israel to prevent and penalize any public encouragements for genocide against Palestinians in Gaza, along with preserving evidence related to such allegations. Additionally, Israel was instructed to take actions to enhance the humanitarian conditions for Palestinian civilians in the enclave.

Despite this, the court did not call for an immediate ceasefire in Gaza, a decision supported by Israel’s concern that it could provide an opportunity for Hamas militants to reassemble and initiate further assaults. The court also expressed deep concern about the situation of hostages in Gaza, urging Hamas and other armed groups to release them unconditionally.

Judge Julia Sebutinde of Uganda dissented, voting against all six measures adopted by the court, while Israel’s ad hoc judge, Aharon Barak, opposed four measures. Barak, in his explanation, mentioned voting in favor of an order to compel Israel to punish incitement to genocide with the aim of reducing tensions and discouraging harmful rhetoric.

Israel is now obligated to furnish a report to the court within one month detailing the measures it has taken to adhere to the orders. Subsequently, the court will scrutinize the case’s merits meticulously, a process anticipated to extend over several years.

It can be recalled that South Africa petitioned the court for an urgent directive to compel Israel to agree to a cessation of hostilities in Gaza. However, the court did not issue such an order. Instead, it instructed Israel to take measures to prevent the killing and injuring of civilians in Gaza, including abstaining from targeting specific groups and refraining from imposing restrictions that could hinder childbirth. Furthermore, Israel was mandated to prohibit and penalize public statements inciting genocide.

Although the ruling lacks enforcement power, it holds significance beyond symbolism. Even if the ICJ had demanded Israel cease its military operations, the court lacks a formal mechanism to enforce this directive. Israel has affirmed its intention to cease hostilities only upon the defeat of Hamas and the release of all hostages. Israeli Prime Minister Benjamin Netanyahu emphasized, “We will continue to take all necessary measures to protect our nation and our people,” following the court’s decision.

Conversely, Palestinian legislator Mustafa Barghouti contends that due to the extensive destruction and ongoing conflict in Gaza, “Israel cannot adhere to ICJ rulings without an immediate and permanent ceasefire.”  The two parties are seemingly talking past one another, making a compromise or agreement, however temporary, an impossibility. 

Some Points to Consider

Provisional measures of the ICJ are temporary actions the Court orders to safeguard the rights of the parties engaged in a case until a final verdict is reached. These measures serve to prevent irreversible damage and guarantee the practical execution of the court’s decision upon its conclusion. Such measures may entail directives to halt specific actions, safeguard evidence, shield individuals or assets, or abstain from particular behaviors until the case reaches resolution. They carry legal weight for all parties involved.

The ICJ  lacks an autonomous means of enforcing provisional measures and instead depends on the cooperation of the parties concerned to observe these directives. Nevertheless, the United Nations Security Council possesses the potential to enforce provisional measures through its authority delineated in Chapter VII of the UN Charter, provided it deems a situation to constitute a threat to international peace and security.

Previous instances where the ICJ has issued provisional measures may shed some clarity on the current provisional measures and their enforcement potential.

In the LaGrand Case (Germany v. United States) of 1999, Germany sought provisional measures against the United States regarding the imminent execution of two German nationals, Karl and Walter LaGrand, who faced death sentences in Arizona. Although the ICJ issued provisional measures, Walter LaGrand was executed despite this. Nonetheless, the United States subsequently agreed to halt Karl LaGrand’s execution pending the court’s final judgment.

In the later case of Avena and Other Mexican Nationals (Mexico v. United States) of 2003, Mexico lodged a complaint against the United States concerning breaches of the Vienna Convention on Consular Relations linked to the arrests, trials, and convictions of Mexican nationals on death row in the U.S. The ICJ issued provisional measures, urging the U.S. to reassess and reconsider the convictions and sentences of these individuals. The U.S. Supreme Court later affirmed the binding nature of the ICJ’s judgments, prompting reviews of the cases of affected Mexican nationals.

These are merely a couple of examples, but the ICJ has issued provisional measures in numerous other cases. However, the enforcement of these measures ultimately hinges on the willingness of the parties involved to comply and, in specific instances, on actions taken by the UN Security Council.

In a sense, one could argue that South Africa does not have much to rejoice since it clearly stated in its application to the ICJ that Israel  was engaging in “genocidal acts” against Palestinians in Gaza. The ICJ did not directly address this claim which it was eminently capable of doing, coming to a conclusion  one way or another with the facts at hand. Instead, the Court requested Israel to take all measures to “prevent” a genocide” which clearly carries the message that a genocide may happen in the future.

The above notwithstanding, it must be mentioned that the court’s role is not to determine whether Israel is committing genocide. Instead, its role is to evaluate the strength of South Africa’s case to decide whether provisional measures should be implemented. These measures aim to “protect against further, severe, and irreparable harm” to Palestinians and ensure Israel’s compliance with its obligations under the Genocide Convention of 1948—specifically, the prevention and punishment of genocide.   However, the role of the ICJ is seemingly obfuscated by the fact that the judges stated that some of these acts and omissions could indeed fall within the Convention’s provisions and the allegations made by South Africa against Israel concerning acts in Gaza potentially violate the Genocide Convention.

One may argue that this is “judicial evasion” and claim that failing to address a problem can transform it into a looming crisis. Evading problems hinders any potential progress. Solutions aren’t found by turning a blind eye; instead, the underlying issues must be addressed head-on. Neglecting problems doesn’t erase them; it exacerbates them. Delaying the resolution merely prolongs the issue. Postponing problems today only amplifies tomorrow’s responsibilities. Ignoring problems doesn’t make them vanish; it merely defers their resolution. Confronting issues directly is the most effective approach. The longer one avoids a problem, the more formidable it becomes. Denying a problem’s existence doesn’t diminish it; it only allows it to burgeon.

The Court neither ordered a ceasefire nor ordered a cessation of attacks that are destroying the people of Gaza.  This could, one may argue, make the statement of the ICJ – that some actions of Israel may violate provisions of the Genocide Convention – lead to confusion.

Ruwantissa Abeyratne

Dr. Abeyratne teaches aerospace law at McGill University. Among the numerous books he has published are Air Navigation Law (2012) and Aviation Safety Law and Regulation (to be published in 2023). He is a former Senior Legal Counsel at the International Civil Aviation Organization.

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