The International Court of Justice has issued a significant decision in a case brought by South Africa against Israel, focusing on allegations of genocide against Palestinians in Gaza.

In late 2023, South Africa had initiated an application instituting proceedings against Israel for violations of the 1948 Genocide Convention during the conflict in Gaza.

The 1948 Genocide Convention, adopted following the widespread killings of Jews during the Nazi Holocaust, categorises genocide as any actions carried out with the deliberate intention to annihilate, entirely or partially, a group based on nationality, ethnicity, race or religion. This includes murdering members of the group, inflicting severe physical or psychological harm upon group members and purposefully creating living conditions designed to eradicate the group either completely or to a significant extent.

In its 84-page application South Africa placed Israel as engaging in actions and inactions that are “genocidal in nature, as they are executed with the specific intent... to annihilate Palestinians in Gaza as part of the larger Palestinian national, racial, and ethnic group.”

The International Court of Justice, the United Nations’ chief judicial entity, does not deal with personal criminal accountability. Instead, its mandate is to resolve legal disputes between states that are submitted to it, in line with international law. This includes disputes over interpreting, applying or fulfilling the Genocide Convention and a state’s responsibility for acts of genocide.

According to Article 94 of the UN Charter, the judgments of the ICJ are obligatory for the disputing parties. Should these judgments not be executed, the matter may be referred to the UN Security Council. The Council then has the authority to recommend or mandate actions to enforce the court’s decision.

The ICJ, on January 26, handed down its order on the request for the indication of provisional measures by South Africa. It ordered Israel to take various provisional measures aimed at preventing genocide, as defined under the 1948 Genocide Convention.

The key points from the ICJ’s decision included requiring Israel to prevent and punish any public incitements to commit genocide against Palestinians in Gaza and to preserve evidence related to any allegations of genocide there. Israel was also ordered to take measures to improve the humanitarian situation for Palestinian civilians in Gaza and asked to submit a report to the court within one month detailing the steps it has taken to comply with the order. This decision was supported by 15 out of 17 judges.

However, the decision on provisional measures is just a preliminary step in a process that could take years to fully resolve the merits of the case.

Provisional measures, in the context of the ICJ, are temporary orders given by the court to protect the rights of the parties in a dispute, pending the court’s final decision. These measures are comparable to injunctions in domestic legal systems.

Provisional measures are authorised by Article 41 of the Statute of the International Court of Justice. It provides the ICJ with the power to indicate provisional measures when it considers that circumstances so require to preserve the respective rights of either party.

“…the court’s decision on provisional measures is just a preliminary step in a process that could take years to fully resolve the merits of the case.”

The primary purpose of provisional measures is to prevent irreparable harm to the rights which are in dispute in a case before the court. They aim to safeguard these rights and interests until the ICJ can make a final judgment on the matter.

While provisional measures are temporary, they are binding on the parties involved. The ICJ’s indication of such measures is not merely a recommendation; states are obligated to comply with them. The court’s decisions regarding provisional measures have binding effect.

While ICJ did order Israel to take measures to prevent genocide, it did not even briefly touch upon a possible ceasefire.

In Paragraph 6 of its application, South Africa had made precise requests for a ceasefire urging for a prompt hearing on its motion for temporary relief measures, citing the exceptional urgency of the situation.

Furthermore, referencing Article 74(4) of ICJ’s Rules, South Africa had petitioned the court’s president to safeguard the Palestinian population in Gaza. It had called for an immediate cessation of Israeli military operations that may breach the Genocide Convention, pending the hearing. This request was aimed at ensuring the effectiveness of any provisional measures the Court might impose. Specifically, the ICJ was asked to direct Israel to stop actions resulting in the death or severe mental and physical harm to Palestinians in Gaza, to halt the imposition of living conditions intended to cause their group’s destruction, to take measures against direct and public encouragement of genocide and to revoke related policies and practices which include restrictions on aid and evacuation orders.

The reasoning behind a sheer refusal to indicate any ruling on this matter may be two-fold. Initially, the ICJ, while exercising its functions, considers several factors when deciding whether to indicate provisional measures, including the urgency of the situation, meaning the risk of irreparable harm and the plausibility of the rights being claimed by the requesting party. The court must be convinced that there is a real and imminent risk that irreparable harm will be caused to the rights in dispute before its final decision. Subsequently, any enforcement of provisional measures relies on the good faith of states, as the ICJ does not have direct enforcement powers. However, non-compliance can be addressed by the UNSC, under Article 94 of the UN Charter, which allows the council to take measures to give effect to the court’s decision if a state fails to perform its obligations.

Therefore, ICJ’s primary focus in this ruling was on the prevention of acts that could constitute genocide as defined under the Genocide Convention. The court’s orders were directly related to ensuring the protection of civilians and preventing incitement and acts of genocide. A ceasefire, while potentially beneficial for protecting civilians, goes beyond the court’s immediate concern with preventing genocide. The decision to not order a ceasefire may reflect the court’s adherence to its mandate of addressing specific legal violations rather than broader political or military interventions.

Moreover, ordering a ceasefire could also have had significant political implications, potentially affected the court’s perceived neutrality or exceeding its judicial remit. By focusing on measures related to preventing genocide, the court aimed to address the immediate humanitarian and legal concerns without delving into the broader political resolution of the conflict, which typically falls under the purview of diplomatic and political bodies like the UNSC.

The writer is an advocate of the high court, a founding partner at Lex Mercatoria and visiting teacher at Bahria University’s Law Department. She can be reached at minahil.ali12@yahoo.com