On Friday, Jan. 26, a panel of 17 judges of the International Court of Justice (ICJ) delivered its ruling on South Africa’s request for the indication of provisional measures submitted in the landmark case: Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). Although this is not the first case involving the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) to come before the ICJ, it is the first time the ICJ has been asked to decide whether Israel is violating it. Strangely, the three parties involved in the case—South Africa, Israel and Palestine—all welcomed the ICJs’ ruling. This begs several questions: What is the ICJ? What did the ICJ decide? Will Israel respect the ICJ’s decision? What happens if Israel ignores the ICJ’s decision?
What is the ICJ?
The ICJ was established by the United Nations (UN) Charter in June 1945 and serves as the UN’s top court. Article 92 of the UN Charter provides that the ICJ “shall be the principal judicial organ of the United Nations” and shall function in accordance with the Statute of the International Court of Justice. The court is based in The Hague (Netherlands) and is composed of 15 judges elected for nine-year terms by the UN General Assembly and the UN Security Council.
Only states may be parties in cases before the court. In terms of its mandate, Article 36(1) states that the jurisdiction of the court comprises “all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” Article 41(1) of the statute empowers the court, in any case before it, “to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.”
What Triggered The Present Legal Action?
At its core, the case is about the nature, scope and extent of Israel’s military operations in Gaza since the heinous October 7, 2023 attack by the terrorist group Hamas. To date, about 28,000 people have died in Gaza and millions have been displaced since Israel launched its counter-offensive. By every account, the humanitarian Situation in Gaza is very dire. The fundamental question before the ICJ is whether Israel’s actions in Gaza amount to violations of its obligations under the Genocide Convention. On December 29, 2023, the Republic of South Africa in accordance with Articles 36 (1) and 40 of the statute of the court and Article 38 of the Rules of Court, instituted proceedings against Israel concerning alleged violations by Israel of its obligations under the Genocide Convention. Although the primary and fundamental question before the ICJ is whether Israel’s actions in Gaza amount to violations of its obligations under the Genocide Convention, in its application instituting proceedings, South Africa specifically requested the court to grant specified provisional measures in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide.”
What Exactly Did the Court Decide?
So, what did the Court decide? First, contrary to Israel’s assertion, the court concluded that it had jurisdiction to hear the case pursuant to Article IX of the Genocide Convention. Second, the court concluded, prima facie, that South Africa had standing to submit the dispute with Israel concerning alleged violations of obligations under the Genocide Convention to it. Third, and most significantly, the court ordered several provisional measures. Among other things, the court ordered Israel,
- By fifteen votes to two, “to take all measures within its power to prevent the commission of all acts within the scope of Article II of the Genocide Convention, in particular: (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;
- By fifteen votes to two, to ensure with immediate effect that its military does not commit any acts within the scope of Article II of the Genocide Convention;
- By sixteen votes to one, to “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;”
- By sixteen votes to one, to “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” and
- By fifteen votes to two, to “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.”
How Significant is the Court’s Order?
The court’s order is very significant. Although the court did not order a ceasefire, if fully implemented, the decision could mean the end or scaling down of Israel’s military operations in Gaza and, as Amnesty International put it, “could help protect the Palestinian people in the occupied Gaza Strip from further suffering and irreparable harm.” By virtue of Article 60 of the Statute, judgments of the ICJ are final, without appeal, and binding. This means that Israel cannot overturn the court’s January 26 order even if it wanted to. Not even the UN Security Council has the power to overturn or veto a decision of the ICJ. Although highly significant, this is only an interim decision. This court is yet to rule on the fundamental question whether nor not Israel violated the Genocide Convention.
How Will the Court’s Order be Monitored?
The ICJ does not have monitoring or enforcement capabilities. However, by fifteen votes to two, the court ordered Israel to submit a report to the court “on all measures taken to give effect to its Order within one month as from the date of the Order.” Whether Israel will submit a report by February 26, 2024, and how thorough any such report will be, remains to be seen. However, there is not much the court can do if Israel either fails to submit the requested report or submits a very scanty report.
Will Israel Respect the ICJ’s Opinion?
The court’s order is a binding legal obligation. Under Article 94(1) of the UN Charter “[e]ach Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.” However, Israel might not respect the January 26 order. Initial reaction from Israeli Prime Minister Benjamin Netanyahu immediately after the ruling was not encouraging. “We will continue to do what is necessary to defend our country and defend our people,” Netanyahu reportedly said immediately after the ruling. To Netanyahu, “[t]he charge of genocide leveled against Israel is not only false, it’s outrageous, and decent people everywhere should reject it.” For its part, the South African Government “hopes that Israel will not act to frustrate the application of this Order, as it has publicly threatened to do, but that it will instead act to comply with it fully, as it is bound to do.”
The pressure is certainly on Israel to respect the court’s ruling. “The Israeli government must comply with the ICJ’s ruling immediately” Amnesty International declared in a January 26 press release. According to Amnesty International, “All states – including those who were critical of or opposed South Africa’s submission of the genocide case – have a clear duty to ensure these measures are implemented.” To Amesty International, world leaders “must signal their respect for the Court’s legally binding decision and do everything in their power to uphold their obligation to prevent genocide.” The European Union (EU), in a press release, “reaffirm[ed] its continuing support” to the ICJ. “Orders of the International Court of Justice are binding on the parties and they must comply with them,” the European Commission said in the statement. “The European Union expects their full, immediate and effective implementation,” it added.
What If Israel Fails to Comply?
Unfortunately, if Israel fails to comply with the order, all roads will inevitably lead back to the Security Council. Article 94(2) of the United Nations (UN) Charter stipulates that “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment” (emphasis). Pursuant to Article 41(2) of the court’s statute, the Security Council will be formally notified of the court’s decision. How the Security Council will respond is anyone’s guess. The problem of course is that because of the veto powers of the Security Council’s five permanent members, it is unlikely that the Security Council will be willing or able to enforce the January 26 Order. Not surprisingly, in a statement released immediately after the ICJ’s decision, South Africa asserted that “[t]he veto power wielded by individual states cannot be permitted to thwart international justice, not least in light of the ever-worsening situation in Gaza.”
Although the ICJ’s decisions are final and are binding, instances of non-compliance exist. For example, Russia is yet to implement the ICJ’s provisional order in the case: Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation). In response to Ukraine’s request for the indication of provisional measures, the court, in its Order of 16 March 2022, ordered the Russian Federation to “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.” The court also ordered Russia to “ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control or direction, take no steps in furtherance of the military operations” commenced on 24 February 2022 in the territory of Ukraine.
So, What Next?
What next for the Palestinians caught up in the ongoing war? What next for the hostages abducted during the attack in Israel on October 7? What next for international law and the international legal order? Too many questions and very few answers, unfortunately.
Professor Uche Ewelukwa Ofodile (SJD, Harvard) is a Senior Fellow of the Mossavar-Rahmani Center for Business and Government at the Kennedy School of Government at Harvard University and a member of the Council on Foreign Relations. She holds the E.J. Ball Endowed Chair at the University of Arkansas School of Law where she has taught a broad range of courses including Public International Law.