By Katherine Tomaszewski

The Hague, Netherlands – On Jan. 26, 2024, the International Court of Justice (ICJ) issued an order containing provisional measures directing Israel to prevent acts of genocide under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). This order stems from a landmark case in which the Republic of South Africa accused Israel of violating the Genocide Convention for its actions against the people of Palestine in response to the Oct. 7 attacks by Hamas. 

South Africa argued that Israel has the “specific intent….to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnic group.” The case also outlined that Israel failed to prevent genocide and failed to prosecute officials who have publicly incited genocide.

Understanding the Genocide Convention

The Genocide Convention defines genocide as specific acts “committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.” Those acts include:

  • killing members of the group;
  • causing members of the group serious bodily or mental harm; 
  • destroying their living conditions so as to bring about their destruction;
  • preventing them from giving birth; and
  • forcibly transferring their children to other groups. 

The Genocide Convention has been ratified by 153 countries, including Israel. Genocide is a crime of individual responsibility, but States can be held responsible as well. States have an obligation to prevent and punish genocide under Article 1 of the Genocide Convention. 

The ICJ’s Ruling on Israel

Cases brought to the ICJ could take years to reach a final judgment on the merits. For this reason, parties may request provisional measures to seek relief prior to the ICJ issuing its final ruling. South Africa asked the ICJ to order nine provisional measures in this case, including a cessation of military operations. On Jan. 26, the ICJ issued its own six provisional measures, none of which called for a ceasefire. 

What is the ICJ?

Founded in 1945, the ICJ, also known as the “World Court,” is based in the Hague, Netherlands, and is the United Nations’ (UN) principal judiciary mechanism. It is different from the International Criminal Court (ICC), which prosecutes individuals for war crimes. The ICJ has jurisdiction to rule on disputes between UN Member States and give advisory opinions on international treaties and laws.

The UN General Assembly and Security Council vote 15 judges to the ICJ. Each judge is nominated by a group of international law experts who are appointed by the judge’s respective government. This process is intended to create a nomination mechanism that is independent, to a certain degree, of States’ governments. The judges each serve nine-year terms. When there are no judges of the nationality of one of the parties to a case at the ICJ, the parties may nominate their own additional judge ad hoc, as South Africa and Israel have done for the present case.

The rulings of the ICJ are final –  there are no means of appeal. Notably, the ICJ holds no enforcement power; it is up to the individual States to comply with the ICJ’s rulings. If a State chooses not to comply, the only recourse is a resolution by the UN Security Council. 

However, the order itself was historic in that it was a step forward in an international call for accountability for Israel’s military operations in Gaza since Oct. 2023, by which according to the ICJ’s ruling: “25,700 Palestinians have been killed, over 63,000 injuries have been reported, over 360,000 housing units have been destroyed or partially damaged, and approximately 1.7 million persons have been internally displaced.” 

In summary, the ICJ ordered Israel:

  1. “take all measures within its power to prevent the commission of all acts” prohibited by the Genocide Convention, particularly killing, causing serious bodily or mental harm, deliberately inflicting on Palestinians in Gaza conditions of life calculated to bring about their physical destruction in whole or in part, and imposing measures intended to prevent births;
  2. ensure that its military does not commit any acts described in point 1 above;
  3. “take all measures within its power to prevent and punish the direct and public incitement to commit genocide”; 
  4. “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life in the Gaza Strip”;
  5. “take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts” prohibited by the Genocide Convention in relation to Palestinians in Gaza; and
  6. within one month, submit a report on all measures taken to implement the ICJ’s order.

Orders 1, 2, 5, and 6 passed by a vote of 15-2 among the judges. The two judges who opposed those orders were Judge Sebutinde of Uganda and Judge ad hoc Barak of Israel. Orders 3 and 4 were voted for by all judges except Judge Sebutinde, who opposed. These provisions and their overwhelming support by the judges on the ICJ represent the broader international backing for the protection of human rights in Palestine.  

The ICJ’s ruling was notable not only because of these provisional measures but also because of the language and content of the order with which the Court supported the provisional measures. In its order, the ICJ mentioned that “[t]he court is acutely aware of the extent of the human tragedy that is unfolding in the region and is deeply concerned about the continuing loss of life and human suffering.” 

The ICJ cited several statements by UN agencies detailing the extent of the devastation in Gaza as the humanitarian situation in the area continues to deteriorate. “The civilian population in the Gaza Strip remains extremely vulnerable,” the ICJ noted, highlighting that Israel’s military operations have resulted “in tens of thousands of deaths and injuries and the destruction of homes, schools, medical facilities and other vital infrastructure, as well as displacement on a massive scale.” 

Based on those facts, the Court stated that “there is a real and imminent risk that irreparable prejudice” will be caused to the protected rights of Palestinians in Gaza under the Genocide Convention. The ICJ concluded “that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment,” therefore demonstrating the need for immediate implementation of the ICJ’s provisional measures. 

The ICJ also supported its decision to invoke provisional measures by including facts specifically regarding incitement to genocide and measures intended to prevent births. The Court directly quoted and named Israeli officials who made degrading and dehumanizing statements about Palestinians in Gaza, of which the ICJ took note in relation to the claims of incitement to genocide. The order also references the direct way in which the crisis is impacting women giving birth in the Gaza Strip, noting that “maternal and newborn death rates are expected to increase due to the lack of access to medical care.” The inclusion of these facts, statistics, and specific quotes by Israeli officials indicate that the ICJ does indeed have its eyes on Israel and its actions, and is publicly taking note of Israel’s military operations and the dire atrocities that have taken place in Gaza since Oct. 7. 

While the Court has not yet ruled on whether Israel has violated the Genocide Convention, it did hold that South Africa has standing to bring the case. “[A]t least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the [Genocide] Convention,” the ruling stated. The Court also ruled that “the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.” These statements and the ICJ’s recognition of the “plausibility” of claims of violations under the Genocide Convention, though not seemingly forceful or condemnatory, are significant. The ICJ’s ruling allows this case to proceed to be considered on the merits by the ICJ and orders the preservation of evidence that can build a record that may be used by other courts, such as the ICC. 

These implications signal potential future liability or prosecution under the Genocide Convention for not only Israel but also other States, such as the U.S., as “Israel is the largest cumulative recipient of U.S. military assistance since the Second World War.” The U.S. continues to arm and financially support Israel despite Israel’s clear violations of international humanitarian and human rights law in Gaza. This means that the ICJ could conceivably find that the U.S. is violating the Genocide Convention. Reportedly, South Africa is already preparing a complaint against the U.S. for “complicity in the commission of genocide.” A case was already domestically brought against the Biden administration by the Center for Constitutional Rights for aiding and abetting genocide, in which a federal judge, though dismissing the case on jurisdictional grounds, held that “Israel is plausibly engaging in genocide of the Palestinian people in Gaza” and therefore “implore[d] [the U.S.] to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.” 

The ICJ ordered Israel to submit a report to the Court on its compliance with the ICJ’s provisional measures within one month. If Israel chooses not to comply with any of the Court’s six provisional measures, South Africa could request the Court take further action and issue additional provisional measures or alternatively, the ICJ could turn to the UN Security Council (UNSC) to request that the Council take punitive action via a UN Security Council Resolution (UNSCR) directed at Israel. 

The Charity & Security Network (C&SN) applauds South Africa for taking steps to support humanitarian aid for, and a ceasefire in, Gaza, and will continue to monitor and provide updates on this case.