The ICJ’s Modified Provisional Measures Order in South Africa v. Israel

Israel has long viewed the United Nations as a hostile forum, while at the same time espousing a commitment to follow international law. The International Court of Justice previously ordered Israel not to violate its obligations under the Genocide Convention, and to “[t]ake immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance” to Palestinians in the Gaza Strip. Even though Israel has professed compliance with the court’s order, the situation on the ground has gotten immeasurably worse. On March 28, the ICJ reaffirmed its prior order and indicated even more specific humanitarian measures. Although the new order does not explicitly call for a cessation of hostilities, complying with the substance of the provisional measures appears to require at least a temporary cessation—as made clear by the news of an Israel Defense Forces (IDF) strike on April 1 that killed World Central Kitchen workers delivering food aid.

Almost six months have passed since Hamas’s Operation Al-Aqsa Flood. Over 100 hostages remain unaccounted for. The humanitarian situation in Gaza is dire. On March 25, the UN Security Council demanded an immediate ceasefire—the first such resolution to pass successfully since Oct. 7—for the month of Ramadan “leading to a lasting and sustainable ceasefire” and the unconditional release of all hostages, as well “the lifting of all barriers to the provision of humanitarian assistance at scale.” (The United States has claimed that the resolution does not create binding legal obligations.) In addition to pursuing its military campaign in Gaza, Israel has been preparing for the possibility of a war with Hezbollah (including by conducting strikes in Syria) and intensifying its occupation of the West Bank. Tens of thousands of demonstrators have rallied against Prime Minister Benjamin Netanyahu’s government and called for a new election to replace it.

The current Israeli government has vowed to destroy Hamas’s military and governing capability in Gaza. A senior Hamas leader said Hamas would repeat the Oct. 7 attacks again and again until Israel is annihilated. The idea of a ceasefire is anathema to many in Israel (and some in diaspora communities) because they view it as a call to abandon efforts to prevent future murderous attacks by Hamas. The 75 percent of the Israeli population who are Jewish—80 percent of whom were born in Israel—view the events of Oct. 7 as evidence of what would happen if they did not maintain a Jewish majority, and of what a fully militarized state of Palestine, backed by Iran, would do. From their perspective, the idea that Israelis who are descendants of immigrants can somehow “go back” to other countries (including neighboring Arab countries) where their families were subjected to persecution and even extermination, and which they have no legal claim to enter, is incomprehensible.

The physical safety and sense of belonging that many Jews have found in Israel has come largely at the expense of Palestinians. This is true both in the occupied Palestinian territories, which include the West Bank (including East Jerusalem) and Gaza, and within Israel’s internationally recognized borders—even more so since the 2018 passage of the “nation-state law” that entrenched the unequal status of Israeli Jews and Arabs. It is compounded by the increasing political power of the extreme right-wing, despite last year’s massive protests against the proposed evisceration of judicial review (which some argue has simply provided legal cover for the occupation). And some hold the view that Israel itself is illegitimate, contributing to an arguably self-destructive siege mentality.  

There is plenty of blame to go around for the intolerable situation that existed on the eve of Oct. 7, including U.S. policy. Recent decades have exacerbated a tendency toward mutual dehumanization and refusal to acknowledge that the other side’s claims have any moral or legal force—a tendency that has only increased since Oct. 7. 

The Role of the ICJ

The International Court of Justice (ICJ) in The Hague was created in 1945 to adjudicate disputes between states and to provide advisory opinions to the United Nations and its organs. South Africa has twice returned to the ICJ since filing a case there against Israel last December. The ICJ has jurisdiction over disputes between South Africa and Israel under the 1948 Genocide Convention. The court has previously held that a state’s obligations under the Genocide Convention are owed to all other states parties, and that each state party has an interest in every other state’s compliance. South Africa alleges that Israel’s ongoing military campaign in Gaza violates Israel’s obligations under the convention. (The state of Palestine deposited an instrument of accession to the Genocide Convention in April 2014, but Israel does not recognize the state of Palestine. This creates a strange situation in which the court’s orders can bind South Africa and Israel, but not any other group or state.) 

Though a final ruling in the case could take years, the ICJ indicated provisional measures on Jan. 26 in response to a request from South Africa. The order enjoins Israel from violating the Genocide Convention and requires Israel to facilitate the provision of humanitarian aid to Palestinians in the Gaza Strip. The ICJ’s jurisdiction over Israel is limited to that provided by the Genocide Convention; consequently, the ICJ’s authority to issue provisional measures rests on its determination (by a margin of 15-2) that South Africa’s allegations involve “plausible rights” under the convention. The ICJ also called for the “immediate and unconditional release” of hostages held in Gaza by “Hamas and other armed groups,” although its jurisdiction in contentious cases is limited to the parties. The ICJ’s first provisional measures order also required Israel to submit a monthly compliance report. 

On Feb. 12, South Africa requested that the court indicate additional provisional measures under Article 75(1) of the Rules of Court. The request referred to Israel’s announced intention to draw up plans to eliminate four Hamas battalions in Rafah, where an estimated 1.4 million Gazans are currently housed, primarily in makeshift tents. The ICJ indicated concern but declined to issue additional measures in light of Israel’s ongoing legal obligation to comply with the existing provisional measures order. 

Israel submitted its first compliance report to the ICJ on Feb. 26. The following week, on March 6, South Africa filed another request for modified provisional measures, this time under Article 76 of the Rules of Court. Under Article 76, the court can modify a previous order if justified by “some change in the situation,” which the court did, despite Israel’s objections.

The Court’s Modified Order

The ICJ’s March 28 order finds that the exponentially deteriorating humanitarian conditions in Gaza constitute a change in the situation and warrant additional measures. The Jan. 26 order required 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.” Israel cataloged some of these measures in its public response to South Africa’s request. Yet these have clearly been insufficient.  

On March 18, the Integrated Food Security Phase Classification (IPC) released an alert indicating that “[f]amine is imminent in the northern governorates of the Gaza Strip and projected to occur anytime between mid-March and May 2024,” and that “[t]he entire population in the Gaza Strip (2.23 million) is facing high levels of acute food insecurity. This includes half of the population in IPC Phase 5 (Catastrophe), an increase of 530,000 people (92 percent) from the previous analysis.” The situation has been exacerbated by continued obstruction of aid delivery into Gaza, the breakdown of law and order within Gaza, the defunding of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) and blocking of UNRWA food convoys, and continued violence. The court characterized the current situation as “exceptionally grave” and noted that “famine is already setting in.” In its view, the changed situation warranted issuing additional provisional measures.  

The composition of the court has also changed since January. ICJ judges are nominated by their states, but they serve in an independent capacity and are not government representatives. (That said, Uganda felt compelled to distance itself from Judge Julia Sebutinde’s dissent from the court’s decision to grant the first provisional measures order. She was the only judge to vote against all of the measures adopted.) South Africa now has a permanent judge (Judge Dire Tladi), meaning that only Israel is entitled to appoint a judge ad hoc (Judge Aharon Barak). Judge Nawaf Salam from Lebanon assumed the presidency of the court. 

On March 28, the court affirmed its previous provisional measures order (15-2) and emphasized that the order also applies in Rafah. It reiterated its call for the hostages’ “immediate and unconditional release,” although this could not form part of its binding order. Additionally, it ordered Israel to:

a. 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 (unanimous); and

b. 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 (15-1, with Judge ad hoc Barak voting against).

The court also ordered Israel to submit a compliance report within one month. Although Judge Sebutinde voted against reaffirming the previous order, she joined the court’s order for additional provisional measures. The court has authority to issue such measures only if there are “plausible rights” at issue under the Genocide Convention. In other words, the judge who was least receptive to South Africa’s arguments in January has now been persuaded that a comprehensive and detailed order requiring Israel to alleviate civilian suffering in Gaza is justified. 

The more detailed provisional measures were warranted not only by the change in situation but also by the court’s assessment of the root causes of that situation, as described in its opinion. For example, the court found evidence in statements of UN experts that: 

while air and sea routes are helpful under the present circumstances, there is no substitute for land routes and entry points from Israel into Gaza to ensure the effective and efficient delivery of food, water, medical and humanitarian assistance; [and] there is an urgent need to increase the capacity and number of open land crossing points into Gaza and to maintain them open so as to increase the flow of aid delivery. 

Moreover, although the court did not explicitly order a halt to military operations, it took note of statements indicating that “the catastrophic humanitarian situation can only be addressed if the military operations in the Gaza Strip are suspended.”

Several judges also wrote separate opinions or declarations to express their additional views. Four judges (Xue, Brant, Gómez Robledo, and Tladi) expressed their disappointment that the court’s order “does not directly and explicitly order Israel to suspend its military operations for the purpose of addressing the current catastrophic humanitarian situation in Gaza.” That said, given the current situation on the ground, there is good reason to think that complying with the court’s order to take “all necessary and effective measures” to ensure the “unhindered provision at scale” of aid to Palestinians “throughout Gaza” will require cessation of virtually all military operations so that aid agencies can operate without fear of being targeted. 

Judge Abdulqawi Yusuf wrote separately to clarify his view that the court’s first provisional measures order was also “tantamount, in terms of the application and fulfillment of the [Genocide] Convention, to an injunction to bring to an end any military operations which may contribute to the commission of such acts.” The court’s orders create “an obligation of result,” namely “an end to the destruction and death in Gaza.” Similarly, Judge Hilary Charlesworth highlighted in a separate declaration that the UN documents referenced in the court’s opinion “make clear that the only way to prevent further destruction of the Palestinian population in the Gaza Strip is to bring military operations to an end.” In her view, the impediment to the court’s ability to order a ceasefire is the fact that “the conflicting parties are not all before it.” Moreover, she would have ordered South Africa to take “all reasonable measures within [its] power to achieve an immediate and sustained humanitarian ceasefire.” (Judge Georg Nolte wrote separately to go on the record about the operation of Article 76(1) of the Rules of Court, and Judge Barak—who had joined in part of the original provisional order—wrote a separate opinion explaining that he voted in favor of the first additional measure “for moral reasons” notwithstanding his disagreement with the court’s reasoning and emphasizing that “Hamas started this war and Hamas can end it.”)

Israel will be in violation of the ICJ’s modified order unless and until it opens additional land crossing points, the volume of goods entering Gaza increases substantially, and distribution can occur safely, without threat of IDF fire. Although it does not have its own enforcement powers, the ICJ can refer noncompliance to the UN Security Council. There is little hope that Netanyahu will pay attention to the ruling of an international court. But the United States and other countries can and should use the decision as additional leverage in persuading Israel to change course. Similarly, actors within and outside the Israeli government should invoke the court’s unanimous order to ensure the “unhindered provision at scale” of humanitarian aid “throughout Gaza” by means of land crossings, understanding that distribution logistics and dangers make this a daunting task. Moreover, if Israel switches the focus of its operation to humanitarian assistance (understanding that this could also help members of Hamas), some of the international pressure could perhaps be redirected toward compelling the release of the remaining hostages, and to creating a viable governance framework for the state of Palestine (which is here to stay, regardless of current U.S. nonrecognition). 

Legal vs. Political Strategies

Litigation at the ICJ has indisputably become another forum in which to shape public opinion and exert political pressure, and not only on the countries directly party to a given conflict. In another development, Nicaragua filed a suit against Germany arguing that Germany’s support for Israel violates Germany’s obligations under the Genocide Convention. Oral arguments on Nicaragua’s request for provisional measures against Germany are scheduled for April 8 and 9. These contentious cases are separate from the UN General Assembly’s 2022 request for an advisory opinion on the legal consequences of Israel’s continued occupation of the West Bank, the Gaza Strip, and East Jerusalem, on which the court held hearings in February. These international proceedings, combined with domestic litigation and political mobilization, are having an impact on some countries’ behavior. On March 19, Canada announced that it would not issue new arms export permits to Israel (although it will honor existing permits). 

Whether these ICJ cases will impact Israeli policy remains to be seen. Israel’s response to the first provisional measures order seems to have been to reaffirm its position that it was already complying with all applicable international laws. By adopting a defensive position—no matter how instinctive this response in the context of adversarial litigation—Israeli officials not only risk violating international law; they are forfeiting the opportunity to salvage some part of Israel’s moral legitimacy among its allies and stem its descent into pariah state status. The United States would also be well advised to recognize the limits of rational argument in the circumstances and to rethink its role in promoting an end to the violence, both immediate and structural. As Pollyannaish as it may seem, the end goal must remain a lasting solution that ensures the safety and dignity of two peoples with claims to the same territory.