On March 28, 2024, the International Court of Justice ordered new provisional measures in the case brought by South Africa against Israel alleging violations of the Genocide Convention in the Gaza Strip. The Court ordered Israel to ensure the unhindered provision of humanitarian assistance, in full cooperation with the United Nations, including by opening new land crossing points. The Court also ordered Israel to ensure that its armed forces do not violate the Genocide Convention by preventing the delivery of humanitarian assistance. Finally, the Court ordered Israel to report to the Court within one month on any steps it takes to comply with the Court’s orders.
The Court did not directly order Israel to suspend its military operations in Gaza. However, seven judges wrote separately that it is practically impossible for Israel to comply with the Court’s orders while carrying out major military operations in Rafah or elsewhere.
The Order
The Court first established that the situation in Gaza has sufficiently changed since its original order of January 26 to justify indicating new provisional measures. As a reminder, on February 16 the Court demanded “immediate and effective implementation” of its original orders but did not issue new orders. The new orders reflect the Court’s finding that the situation in Gaza has changed so much in the last six weeks that new measures are warranted.
The Court observed “with regret” that, since its original order, “the catastrophic living conditions of the Palestinians in the Gaza Strip have deteriorated further, in particular in view of the prolonged and widespread deprivation of food and other basic necessities to which the Palestinians in the Gaza Strip have been subjected.”
The Court observed that “Palestinians in Gaza are no longer facing only a risk of famine, … but that famine is setting in, with at least 31 people, including 27 children, having already died of malnutrition and dehydration.”
The Court noted “the unprecedented levels of food insecurity experienced by Palestinians in the Gaza Strip over recent weeks, as well as the increasing risks of epidemics.”
The Court considered that these developments, which are “exceptionally grave, constitute a change in the situation” and entail “a further risk of irreparable prejudice to the plausible rights claimed by South Africa,” “namely the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts.”
Arguably, the Court’s factual findings are the most important part of the order. They demand immediate action from the international community including from the UN Security Council.
The Measures
To prevent “a real and imminent risk” of irreparable prejudice to Palestinian rights under the Genocide Convention, resulting in irreparable consequences, the Court indicated three new provisional measures:
The State of Israel shall, in conformity with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in view of the worsening conditions of life faced by Palestinians in Gaza, in particular the spread of famine and starvation:
…
[1] Take all necessary and effective measures to ensure, without delay, in full co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements, as well as medical supplies and medical care to Palestinians throughout Gaza, including by increasing the capacity and number of land crossing points and maintaining them open for as long as necessary;
…
[2] Ensure with immediate effect that its military does not commit acts which constitute a violation of any of the rights of the Palestinians in Gaza as a protected group under the Convention on the Prevention and Punishment of the Crime of Genocide, including by preventing, through any action, the delivery of urgently needed humanitarian assistance;
…
[3] … the State of Israel shall 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 first provisional measure was adopted unanimously. The second and third provisional measures were adopted by a vote of fifteen to one, with Judge ad hoc Barak (appointed by Israel for this case alone) casting the lone vote against them.
The first new provisional measure modifies the fourth original provisional measure, which requires Israel 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.” The new order uses the term “ensure” rather than “enable” and lists specific forms of humanitarian assistance that must be delivered to those in need. The new order requires full cooperation with the United Nations. This requirement presumably includes the United Nations Relief and Works Agency (UNRWA) which Israel recently refused to allow into North Gaza and seeks to exclude from relief efforts. The requirement to open new land crossings from Israel reflects a longstanding demand from humanitarian groups and the UN Security Council.
The second new provisional measure modifies the second original provisional measure, which requires Israel to “ensure with immediate effect that its military does not commit any acts” which violate the Genocide Convention. The new order makes clear that any action which prevents the delivery of urgently needed humanitarian assistance can potentially violate the Genocide Convention.
The third new provisional measure mirrors the sixth original provisional measure. The requirement that Israel report back to the Court, and share its report with South Africa, facilitates ongoing transparency and accountability.
The Court declined to grant South Africa’s first request, that the Court order that “All participants in the conflict must ensure that all fighting and hostilities come to an immediate halt, and that all hostages and detainees are released immediately.” The Court explained that it lacks the legal power to indicate provisional measures toward an entity like Hamas that is not a party to the case.
In my view, the Court can bring about a ceasefire despite its jurisdictional limitations (see here). In any event, the United Nations Security Council does not share the Court’s jurisdictional limitations. The Council has the legal power to order Hamas and Israel to observe an immediate humanitarian ceasefire. The Court took note of resolution 2728, which “[d]emand[ed] an immediate ceasefire for the month of Ramadan respected by all parties leading to a lasting sustainable ceasefire.” Unfortunately, the United States has undermined that resolution by declaring it “non-binding” while Israel has simply ignored it. For more on that resolution, see here.
The Opinions
Nine judges appended declarations or separate opinions.
Strikingly, seven judges wrote that Israel’s military operations and aid restrictions threaten the very existence of the Palestinians of Gaza, and that the only way to protect their right to exist as a group is for Israel to suspend its military operations. These judges also argued that it is practically impossible for Israel to comply with the Court’s orders without suspending its military operations, though for different reasons.
Judge Charlesworth (writing individually) as well as Judges Xue, Brant, Gómez Robledo, and Tladi (writing jointly) indicated that Israel must suspend military operations in order to comply with the first new provisional measure. In plain terms, Israel cannot ensure the delivery of humanitarian assistance while preventing its delivery through ongoing military operations. These five judges expressed frustration that the Court did not “make that point explicitly” and directly order Israel to suspend military operations in Gaza. In my view, these judges are fundamentally correct.
In contrast, President Salam and Judge Yusuf indicated that Israel must suspend military operations to in order to comply with the second new provisional measure. In plain terms, Israel cannot ensure that its military does not violate Palestinian rights under the Genocide Convention by preventing delivery of humanitarian assistance without suspending military operations that prevent delivery of humanitarian assistance.
Judge Nolte wrote separately that he “take[s] very seriously recently voiced concerns that Israel is using hunger as a ‘weapon of war’ and the provision of humanitarian aid as a ‘bargaining chip’.” Strange as it may sound, Judge Nolte hesitated to vote in favor of the Court’s new order only because “this terrible situation would most probably not exist if the [Court’s original] Order of 26 January 2024 had been fully implemented.” This suggests that Judge Nolte thinks Israel ‘most probably’ violated the Court’s original order, for which Israel could be held responsible when the case enters the merits stage. In conclusion, Judge Nolte wrote that the changed circumstances since the original order “also reflect a plausible risk of a violation of relevant rights under the Genocide Convention.”
Interestingly, Judge Sebutinde voted in favor of all three provisional measures after voting against the Court’s original order. Judge Sebutinde did not write separately to explain her change of mind, but presumably the devastation of the last two months convinced her that Israel’s military campaign poses a real and imminent risk to Palestinian rights under the Genocide Convention.
Finally, Judge ad hoc Barak wrote a separate opinion expressing his (mostly) dissenting views. The first paragraph calls South Africa’s successful effort to obtain additional provisional measures an “unbecoming” failure. Given the Court’s damning factual findings, alarming risk assessment, and detailed orders, this paragraph contains more ‘spin’ than substance. Without irony, Judge Barak criticizes the other fifteen judges for following international humanitarian law and moral considerations rather than the strict terms of the Genocide Convention, only to announce that he voted in favor of the first provisional measure because it reflects international humanitarian law and moral considerations. In closing, Barak calls the war in Gaza “Israel’s second war of independence” and claims that “Israel’s very existence was imperil[]ed on 7 October 2023.” Standing in contrast with the Court’s stark findings, this passage is quite revealing. It suggests that one way to rationalize a military campaign that threatens the very existence of another human group is to imagine an existential threat to one’s own.
As for the other fifteen judges, those who support the order in full and voted in favor of all the provisional measures, their view is likely closer to that expressed by Judge Yusuf:
“The alarm has now been sounded by the Court. All the indicators of genocidal activities are flashing red in Gaza.”