On 26 January 2024, the International Court of Justice [‘ICJ’] granted six provisional measures to South Africa against Israel. While in theory this was a victory as it acknowledged ‘the right of the Palestinian group in the Gaza strip to be protected from acts of genocide and recognised that the rights are of ‘such a nature that prejudice to them is capable of causing irreparable harm’ (para 66). While the provisional measures recognised the humanitarian crisis and Israel’s contribution to it (para 78), many vested their skepticism in the powers of the ICJ to ensure the enforcement of and compliance with these crucial measures. This skepticism was justified as South Africa has gone back to the Court two times since then (on February 12 and on March 6) arguing that the humanitarian situation has worsened and additional provisional orders were required. The Court accepted the second request and gave additional provisional measures on March 28 2024. South Africa has since approached the Court again on May 10 for additional provisional measures in light of the even worsening humanitarian situation.

Provisional measures, an interim remedy at the ICJ, have the basic and foundational purpose of ensuring that they ‘prevent the further aggravation of the dispute and damage to the status quo’ [174] until the adjudication of the matter at the final/merits hearing at the ICJ. Provisional measures are granted in various types of cases and in many there has been compliance with either half or all of the measures, however conformity to such measures in the few genocide cases brought before the Court has been even lower.

This article outlines the brief procedure that the ICJ follows to grant provisional measures and their purpose. It then focuses on assessing the extent to which states comply with provisional measures in cases specifically brought under the Genocide Convention The article lastly examines the steps the ICJ can take or has taken towards states when there are instances of non-compliance with provisional measures.

Background 

The ICJ derives its foremost powers to grant provisional measures from Article 41 of the Statute of the International Court of Justice [‘Statute’], and then from Article 75 of the Rules of Court [‘Rules’]. It was not until the LaGrand judgment that it was clarified that provisional measures were incumbent upon states to follow [para 128]. Until 2020, there was not a separate mechanism that governed the operations and enforcement of provisional measures. On 21 December 2020, the ICJ adopted a new Article 11 of its Internal Judicial Practice [‘IJP’] that directs the creation of an ad hoc committee, consisting of three judges that are responsible for monitoring provisional measures, assessing information supplied by states and then periodically reporting back to the Court with recommendations for future action, if required. Though Article 11 of the IJP was adopted as part of the ICJ’s ongoing review procedure without putting forward any specific reasoning, Jonas Ter Braak  assessed the gaps in the ICJ’s system that could have necessitated this adoption, such as the need to have  authority over state compliance and ensuring adherence to its provisional measures (Chapter II).

Over the last 20 years, there have been four cases under the Genocide Convention in which the applicant state requested the ICJ to grant provisional measures. The requests were granted partly or entirely but were granted nevertheless. These cases are Bosnia v Serbia, The Gambia v Myanmar, Ukraine v Russia and South Africa v Israel. Earlier this year, Matei Alexianu examined the practice of states’ overall compliance with provisional orders. He concluded that there was no compliance in Ukraine v Russia and The  Gambia v Myanmar. Whereas for  Bosnia v Serbia, in 2007 the ICJ itself held in its merits judgment  that Serbia failed to comply with the Provisional Measures Order of 8 April 1993 [para 456] and then reaffirmed in Provisional Measures Order of 13 September 1993 that the Court was not satisfied “all that might have been done has been done” to prevent the commission of genocide in Bosnia [para 57]. This leaves us with the last case of South Africa v Israel under the Genocide Convention, in which compliance with the provisional measures remains to be assessed.  We look at the order of 26 January 2024 in which the ICJ ordered 6 provisional measures, and the order of 28 March 2024 in which ICJ ordered 3 additional provisional measures. Taking inspiration from the table created by Matei Alexianu in examining compliance of various states, I explore below whether over four months after the ICJ’s order Israel has complied with these provisional measures. Two provisional measures ordered in March mirror the provisional measures ordered in January, therefore they are assessed together.

Overall there has not been notable compliance with ICJ’s provisional measures in South Africa v Israel. Technically Israel complied with measure (6) from the Order of 26 January 2024 by submitting a report to the ICJ but there remains an unaddressed gap. The report whose purpose is to demonstrate Israel’s efforts in complying with the provisional measures loses its significance if the conflict is ongoing with worsening humanitarian crises. This is an issue with the ICJ because there is not a definitive guideline or process which suggests what happens if this report does not hold truth or is not adequately reflecting the actions of a state, nor is it open for public access.

Furthermore, the ICJ did conclude in the Order of 28 March 2024 that ‘the catastrophic situation in the Gaza Strip confirms the need for immediate and effective implementation of the measures indicated in its Order of 26 January 2024’ (para 46). The ICJ’s reaffirmation of the situation in Gaza was indicative that partial compliance is not the solution to prevent genocide.

Inadequacy of the ICJ’s provisional measures enforcement mechanisms

Reporting requirements

Article 78 of the Rules provides some monitoring powers to the ICJ whereby it ‘may request information from the parties on any matter connected with the implementation of any provisional measures it has indicated’. In the further request for provisional measures in Bosnia v Serbia, on 27 July 1993, this monitoring measure was requested but not granted. For the first time in cases brought under the Genocide Convention, it was granted on 23 January 2020 in The Gambia v Myanmar with a requirement to submit a report bi-annually [para 86]. This was an order of significant importance whose compliance can be easily measured. There are two things to note here, firstly, the ICJ’s omission in imposing a public reporting was a missed opportunity. Secondly, this was an ongoing reporting duty, which still applies.

On paper, Myanmar has submitted its reports bi-annually until 23 May 2022, however, as has often happened with provisional measures in genocide cases, even an ongoing reporting requirement did not make any difference to the dire situation of Rohingyas in Mynmmar. In South Africa v Israel, the ICJ did not impose an ongoing reporting requirement like South Africa had requested, in provisional measure (6), the ICJ only ordered Israel to submit a report within one month of the order to illustrate how Israel is complying with the Court’s orders [para 86]. Israel did submit the report in time, but this report is confidential and therefore not open to public scrutiny, like the reports submitted by Myanmar. Israel was due to submit another report in compliance with the  Order of 28 March 2024, when and if it does, it should be made public especially given that the situation in Gaza has only become more catastrophic.

Past actions in The Gambia v Myanmar indicate that even imposing an ongoing reporting requirement alongside other provisional measures produces little results when the state is not cooperating. In  South Africa v Israel, the ICJ did not only put a one time reporting requirement, but it did miss an opportunity again to provide partial or full access of Israel’s report to the public. Though it is common practice for these reports to be confidential, there is a good reason to publicise these reports. Returning back to Israel’s compliance, even after Israel’s report, Israel was, has and continues to have blatant disregard of the ICJ’s measures as demonstrated in the table above. This suggests the core issues lie in different aspects of reporting and the challenges they bring.

• The ICJ has a discretion to report. In addressing this issue a change could be seen in amending the Rules of the Court to remove the discretion in Article 78 of the Rules, amending from the Court ‘May request information from the parties’ to ‘Must’. Though such a change would not only take a long time but it will not be applicable in retrospect to the grave cases of Myanmar and Israel, nevertheless it can improve things for cases in the future in which the ICJ decides to order a reporting requirement.
• Moving further, if the ICJ orders an ongoing reporting requirement, it needs a procedure, an authoritative mechanism that deals with the non-compliance with provisional measures that is reported to the ICJ. Without acting on the non-compliance, the ongoing reporting would not serve a purpose. Whilst the costs involved with setting this up is not in the scope of this blog, one of the ways the Court can deal with consequences of non-compliance is by singling out states and mentioning them in their annual report. This is what the African Court on Human and Peoples Rights [‘CtHR’] does, Article 31 of the Protocol establishing the African CtHR states that the annual report submitted to the AU Assembly ‘shall specify, in particular, the cases in which the states have not complied with the Court’s judgments’. Whilst our concern in the article is regarding compliance in the interim with provisional measures, this approach can put pressure on some states who heavily rely on diplomacy to fund and support their military and political actions, such as Israel.
• Reports to be publicly accessible. Perhaps, the ICJ should have put an ongoing reporting duty on Israel, or at the very least, duly considered making the current report open to the public for the scrutiny of the world. When every hearing, action and evidence is globally accessible then there is no plausible reason as to why the state’s efforts should be kept private. Whilst confidentiality is of concern, redactions can be maintained without the report for the Court’s use and public’s access. Abbott Kingley in his article rightfully points out that ‘whether or not the reports should be made public is not necessarily a question that the preferences of the parties—as opposed to the requirements of the judicial function—should control’.

Lack of different forms of punishment

There is currently no form of punishment either monetary or non-monetary should a state defy the orders of the Court. Article 260(2) of the Treaty the Functioning of the European Union imposes a pecuniary penalty and states ‘If the Court finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it’. Though this is also a discretionary power, it at least permits the Court of Justice of the European Union to impose such a penalty. While many may say it will be immensely challenging to quantify the breach, it is certainly easier to quantify it than let certain circumstances unfold which cannot be remedied later, such as losing innocent lives.

Do provisional measures make any difference?

At the outset, it is worth mentioning that the provisional measures in South Africa v Israel have had some impact on Israeli policy. On the eve of the provisional measures hearings, Israel’s Attorney General issued a statement warning that calls for intentional harms to civilians ‘may constitute criminal offenses’. And a few days before the order, Israel declassified documents purporting to show that its leadership has sought to protect civilian lives during its Gaza campaign. Technically these instances do not fall in the ambit of compliance with provisional measures as they pre-date ICJ’s January 2024 Order but it is evident that the Israeli government is taking this case seriously, or it did before the ICJ passed its Order. We are yet to see the extent to which the ICJ’s order would raise reputational concerns for Israel.

The impact of ICJ’s order can be seen in domestic settings as well. For example, in the Netherlands, some human rights groups have sued to block the Netherlands government from supporting Israel by supplying airplane parts to them. The provisional measures order also supports their appeal as ICJ’s acknowledgement that there could be a potential genocide permits them to argue that the Dutch Government is breaching the Genocide Convention by for example failing to uphold ‘its negative obligation not to assist in the commission of war crimes’.

The order also illustrated the strength of the common language of law. It brought Israel to justify its actions on various global platforms and feel that it is answerable to the world.

Hopeful future?

Change within the Court

Judge Oda in his declaration to the provisional measures order of 1 July 2000 in Democratic Republic of Congo v Uganda had warned that ‘the repeated disregard of the judgments or orders of the Court by the parties will inevitably impair the dignity of the Court and raise doubt as to the judicial role to be played by the Court in the international community’. While many are optimistic and do see the benefits of provisional measures such as the symbolic value attached to recognising an international wrong, the Court has a higher value than a merely symbolic one. Given the ongoing state of conflicts such as in Gaza, that are only worsening day by day, they do raise serious questions about judicial functions of the Court and whether in the grave instances of genocide will the Court’s Orders ever bring substantive and tangible change.

The ICJ can observe like it did in Bosnia v Serbia [Para 456] that Serbia had not complied with its provisional measures, but that does not impact the finding on the merits nor does it aggravate the merits findings, it only constitutes an autonomous wrongful conduct. Given the lack of enforcement powers it is challenging at the ICJ to rule on non-compliance. But when these cases reach the merits stage after years of anticipation, like The Gambia v Myanmar would, the ICJ should have a procedure to punish parties for their wrongful conduct or use it as a factor that aggravates the merit’s judgment. Merely a paragraph in a judgment towards the end, acknowledging that the provisional orders were not complied with does not set a strong precedent and this is proof because of the alleged instances of genocide and the non-complaince with provisional measures in the similar cases that have followed since Bosnia v Serbia.

Change dependent on other organs of the UN

• The United Nations Security Council [‘UNSC’]

The UNSC is a supposedly integral part of the international community, failing to but still responsible for preserving world peace. The discretionary power of the UNSC to take action, pertinent to the enforcement of provisional measures, is derived from Article 94(2) of the UN Charter. At the same time, Article 94(1) of the UN Charter imposes an obligation on a state to ‘comply with the decision of the ICJ to which it is a party’. This can be seen as an additional obligation to that of provisional measure, whilst the provisional measures direct compliance with specific actions, Article 94(1) imposes an overall duty on states party to a case to follow the Court’s orders as a whole. However, in reading Article 94(2) of the UN Charter, if this obligation under Article 94(1) is breached, there are no given or guaranteed means of accountability and the unfortunate veto power to states has often halted progress.

The UNSC has previously used the text of ICJ’s orders, and leaned on it for support to pass resolutions. For example in United States v Iran [Hostages Case], when Iran failed to comply with its international obligations, the UNSC passed a second resolution 461 [1979] citing that Iran had failed to comply with the first resolution and ICJ’s order by its continued detention of hostages. When Iran still did not comply, the US proposed another resolution, this time a US delegate citing that ICJ’s provisional measures are ‘authoritatively expressing the will of the ‘world community’’. This decades old example illustrates two things that remain unchanged. Firstly, that till the time there is a veto power in the UNSC, the interests of each state will supersede the significance of upholding international law. Secondly it illustrates that even though states within the UNSC have the power and duty to ensure the ICJ’s orders are complied with, they will use the same orders to their own benefit and defy it to their own benefit.

If the permanent members of the security council are unable to indefinitely let go of their veto power then there can be some situations that act as exceptions for suspending veto power, such as in crisis or conflicts. What constitutes a crisis and demands a suspension of the veto can be determined by ICJ’s preliminary determinations of a circumstance.

• General Assembly [‘GA’]

Article 24 of the UN Charter gives the primary responsibility to the UNSC to ‘maintain international peace and security’, but it was clarified in the  Wall Advisory Opinion [para 26], that primary responsibility does not mean ‘exclusive competence’ and that ‘the General Assembly does have the power, inter alia, under Article 14 of the Charter, to “recommend measures for the peaceful adjustment” of various situations’. While this is optimistic, the GA resolutions are still recommendations and are not legally binding, throwing back the primary and efficacious power back to the UNSC.

It is prudent to mention the Uniting for Peace General Assembly Resolution 377 (V) [1950] which permits GA to make recommendations to member states if the SC ‘fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression’ (Section A). Though the focus should not shift from the word ‘recommendations’ and their non-binding nature which also insinuates that the GA can condemn Israel’s actions, call on Israel to comply with its legal obligations but does not possess the authority to pass a resolution that orders compliance with provisional measures, at least this has not been witnessed before.

During the Russia and Ukraine war in 2022, the GA used its powers to call an emergency session under the Uniting for Peace Resolution and passed Resolution ES-11/1 that condemned Russia’s violations of international humanitarian law and demanded it to ‘cease its use of force against Ukraine’. Despite the shift in power that Uniting for Peace Resolution provides, there is nothing in law that suggests that the shift in power from UNSC to GA to maintain international peace also shifts the nature of GA’s recommendations and deems them binding. Though logically they should become binding, without a precedent or legal text, this will not be a strong presumption.

Even though the crux of the article is on assessing and ensuring compliance with provisional measures, the GA in using its powers under the Uniting for Peace Resolution has produced diplomatic benefits, for example in providing a legal justification to states that have imposed various economic sanctions on Russia and validated their measures against Russia.

New Organs?

Since the current organs of the UN aren’t proving effective, a possibility of a new UN organ specifically intended to ensure compliance with the court’s orders can be considered. Judge Ajibola presented the idea of a new organ of the UN,  and called it the UN Judgment Enforcement Council (UNJEC). The UNJEC would be composed of between 25 and 30 members, including all permanent members of the Security Council, none of which would possess veto power, and would decide by simple majority. However, Judge Ajibola’s proposal only concerns judgments, and does not consider orders on provisional measures. While ultimately the success of any organ or any international law principle depends on the willingness of states to act in accordance with it, a new UN organ could operate independently of the UNSC. Its capacity to take actions without bearing the burden of a veto power and its niche focus on observing compliance with provisional measures would permit it to take more prompt and effective decisions in the interim and fulfill the purpose of provisional measures.

Conclusion

On 6 March 2024 South Africa returned to the ICJ to request the ICJ for further provisional measures given the worsening situation in Palestine and Israel’s intervention in Rafah. Paragraph 34 of South Africa’s request should be an alarming reminder for the world community to act and prevent history from repeating itself again and again

‘In the Bosnian Genocide case, the Court declined to order the additional provisional measures requested on 27 July 1993. Within two years, approximately 7,336 Bosnians in the so-called ‘safe area’ of Srebrenica had been slaughtered, in what this Court retrospectively determined to have been a genocide. Here, South Africa respectfully calls on this Court to act again now — before it is too late — to do what is within its power to save Palestinians in Gaza from genocidal starvation’

In genocide cases, that can take a decade to reach their final stage, the enforcement of provisional measures is tremendously important because of the undeniably high risk of irreparable harm to the people and this might not be the nature of other cases at the ICJ.

An article by W.M.Reisman, published in 1969 and titled ‘The Enforcement of International Judgements’ ends by the excerpt ‘An international law system which deems itself so incapable of effective decision that it must retreat from the most critical cases cannot meet the requirements of a world community increasingly in need of legal order’. From 1969 to 2024, the concern remains the same, which should raise many questions, most importantly why has nothing changed?