The International Court of Justice's Interim Measures to Prevent Genocide in Gaza

“The catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further,” said Joan Donoghue, president of the International Court of Justice (ICJ), reading out the court’s order in South Africa v. Israel. “In view of the fundamental values sought to be protected by the Genocide Convention, the Court considers that the plausible rights in question in these proceedings, namely the right of Palestinians in the Gaza Strip to be protected from acts of genocide and related prohibited acts [under the] Convention … are of such a nature that prejudice to them is capable of causing irreparable harm.”

The interim order by the ICJ in the case brought by South Africa requires Israel to take provisional measures to prevent acts of genocide and ensure humanitarian access to the population of Gaza but refrained from ordering a suspension of military operations. It contained a few surprises for habitual watchers of the court but in the main followed the precedent established in other cases, including The Gambia v Myanmar. 

To recap: At this stage in South Africa v. Israel, the ICJ was not to rule on whether Israel was responsible for genocide, or even to confirm jurisdiction, but to award any provisional measures deemed necessary to prevent irreparable harm to the interests of the parties before judgment is laid down. The ICJ found that the conditions for indicating such measures had been met, including the urgency of the situation and the plausibility of the rights that South Africa claimed were being violated, but it emphasized that its order in no way prejudged its eventual findings both on jurisdiction and on the merits of the case. As South Africa had been able to bring Israel to court only under the compromissory clause of the Genocide Convention, the court could consider only rights under that convention and not other alleged violations, including those under international humanitarian law.

A detailed look at what measures the ICJ did and did not include follows below, together with an early assessment of their possible effect. But perhaps the greatest impact of the ICJ’s order will be registered in the symbolic realm: On what is arguably law’s greatest stage, we heard an American presiding judge read out the ruling of the World Court that Israel must ensure that its military forces do not commit acts of genocide. 

What the ICJ Ordered

The ICJ ordered a total of six provisional measures. There was a high degree of consensus among the judges, with all measures attracting only one or two dissents (including those from the ad hoc judge appointed by Israel). 

First, the court required Israel to take all measures within its power to prevent the commission of all acts constituting the physical elements of genocide; that is, killing members of the group, causing serious bodily or mental harm to members of the group, deliberating inflicting conditions of life on the group calculated to bring about its physical destruction, and imposing measures intended to prevent births within the group, in relation to Palestinians in Gaza. Considerable space earlier in the ruling was given to itemizing effects on the Gazan population that broadly correlated with these elements. 

The Court notes that the military operation being conducted by Israel following the attack of 7 October 2023 has resulted in a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure. While figures relating to the Gaza Strip cannot be independently verified, recent information indicates that 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.

Quoting extensively from UN officials, the court outlined the public health disaster unfolding, including an expected rise in maternal and newborn death rates due to the lack of access to medical care.

Second, the court ordered Israel to ensure with immediate effect that its military does not commit any of the genocidal acts listed in the first measure, underscoring the responsibility of the state for all acts of the Israel Defense Forces.   

Third, Israel should prevent and punish direct and public incitement to commit genocide. The court specifically drew attention to statements by Defense Minister Yoav Gallant (including his speech to IDF troops on the Gaza border, in which he said, “I have released all restraints”), by the Israeli president, and by then-Minister of Energy Israel Katz, who said, “All the civilian population in [G]aza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.” (The latter probably constitutes the first time the ICJ has ever quoted a tweet.) The ICJ did not quote Prime Minister Benjamin Netanyahu’s references to the biblical slaughter of the Amalek by the Israelites, which Israel had suggested in the oral pleadings had been misinterpreted. (Israel’s counsel did not explain how, but an exploration of that argument can be found here.)

However, the contested significance of such statements for proving genocidal intent will only really be tested at the merits stage, which is due to take place some three years hence, when the current military operation will be long over. It is one thing to argue, as Israel did, that inflammatory statements by senior officials were driven by emotion and not reflective of official policy when the outcome of operations, while devastating, is still uncertain; it is quite another thing to try and make that argument when some of the conduct urged, such as the mass expulsion of Palestinians from Gaza, may have come to pass. It is notable that this measure on preventing incitement was also supported by the ad hoc judge appointed by Israel, former Israeli Supreme Court President Aharon Barak.    

Barak also supported the ICJ’s fourth provisional measure, which is that Israel 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 Gaza. This provision goes beyond the measures indicated in The Gambia v Myanmar. In placing an absolute duty on Israel to enable humanitarian assistance irrespective of the absence of a deliberate calculation to bring about group destruction, it also goes beyond the strict framework of the Genocide Convention. It sweeps aside, too, the efforts of Israel’s Coordinator of Government Activities in the Territories to lay the blame for failures in ensuring humanitarian access on UN agencies. 

The ICJ reverted to the Myanmar case formula for its fifth provisional measure, preventing the destruction and ensuring the preservation of evidence relating to allegations of genocidal acts, and also its sixth provisional measure, requiring Israel to report back to the court on all measures taken to give effect to the order. Here, however, the court laid down a deadline of one month (for Myanmar it was four), reflecting both the urgency of the situation and the court’s determination that its order should have an immediate effect. 

Rhetorical reactions aside, Israel will have to decide quickly to what extent it will continue to engage with the proceedings before the ICJ. In a process characterized by Itamar Mann as “counter-genocidal governance,” Israel’s determination to avoid the charge of genocide from sticking may itself motivate stronger controls both over the public statements of officials and over the destructive effect of military operations on the Gazan population. 

But the question of compliance is not just one for Israel. Laying down specific obligations for the prevention of genocide in Gaza, the court has also effectively laid down a challenge to states—the U.S. and U.K. principal among them—whose supply of arms and material support to Israel’s military operations could engage their own liability for aiding and assisting genocide or the separate offense of complicity in genocide. Pressure is already building in Congress about why arms transfers to Israel have not been subject to Leahy law controls, which condition security aid to foreign militaries in cases of gross human rights violations.  

What the Court Did Not Order

Unlike in Ukraine v Russia, the ICJ declined to order an immediate suspension of military operations. South Africa’s counsel had argued that the rapidly deteriorating humanitarian situation in Gaza was such that only such a suspension of operations could halt the slide to mass deaths from hunger and disease. However, as I pointed out previously on Lawfare, such a measure was always improbable given the asymmetric nature of the current proceedings, with the court having jurisdiction over only one party to an ongoing armed conflict. Although it could not be part of the operative part of the order, the court found it necessary “to emphasize that all parties to the conflict in the Gaza Strip are bound by international humanitarian law” and said that it was gravely concerned about the fate of the hostages, calling for their immediate and unconditional release. 

Neither did the court order Israel to grant access to fact-finding missions and independent mandates as requested by South Africa. In this it missed an opportunity to link its order with the separate investigation ongoing at the International Criminal Court, which covers not just alleged crimes committed by the IDF and Palestinian armed groups in the territory of Gaza and the West Bank but also alleged crimes committed by Palestinian nationals in Israel. 

More generally, the ICJ avoided prejudging the case on the merits by eschewing any commentary on key issues, including on Israel’s right to defend itself, and on which constellation of genocidal statements by officials and patterns of conduct on the ground could meet the burden of proof for genocidal intent. 

What Happens Now?

The discourse on Israel’s military operation in Gaza has become so divided that the ICJ’s order—attempting to remain fair even before a final determination on the facts is possible—was always going to disappoint both sides. It may, for all that, stand a greater chance of implementation.

Netanyahu had already said after the two days of pleadings that an order from the court would not stop Israel fighting the war. But the decision of the Israeli government to field a strong legal team in The Hague to defend the allegation of genocide directly and its readiness to supply the court with classified cabinet documents indicate the seriousness with which it has treated the process to date. 

While there is no appeal as such from the order, either party can use facts on the ground to justify coming back to the court. Under the ICJ statute, South Africa could refresh its request for provisional measures (this requires “new facts”) while either party could seek to revoke or modify the order (this requires a “change in the situation”). In Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), both parties made further requests for provisional measures three months after the court’s first order, only to have the court reaffirm its earlier decision. 

But as the order leaves the judicial sphere and enters that of geopolitics, its voyage becomes harder to map. Any enforcement action at the international level would mean going back to the UN Security Council, where the U.S. has shown it is prepared to use its veto if Israel’s interests are threatened. Other Security Council members could well try, however. They might find the most effective draft resolution would be the simplest: “The Security Council demands that all parties to the conflict fully comply with the provisional measures ordered by the International Court of Justice.” 

Given the habitual references to upholding the rule of law in U.S. foreign policy statements, and demands by the U.S., U.K., European Union, and others for compliance with ICJ provisional measures in comparable cases, not to support such a resolution would be awkward, to say the least. For the U.K., the U.S.’s main ally at the council, it might well be impossible, given that the U.K. (unlike the U.S.) has accepted the compulsory jurisdiction of the court. But the U.S., too, should think very carefully before undermining the ICJ order. In specifying limits on IDF operations, including the prohibition on imposing destructive conditions of life on the Gazan population, the ICJ has ordered what the U.S. has in effect been pushing for all along. 

Quiet diplomacy has failed. To date, Israel has resisted all external pressure, its leaders focused on their domestic constituency. But things may be about to change. Hostages’ families are now urgently calling for the Israeli government to consider a cease-fire deal in the current round of negotiations mediated by Qatar. This week, the death toll among IDF personnel operating in Gaza approached the original number of hostages taken by Hamas, leading to Israeli commentators speaking for the first time of a “tipping point.”

And the U.S. interest? South Africa’s application to the ICJ has served to crystallize world opinion on the conflict, leaving the U.S. and a handful of Western states looking heavily isolated. Coming just a year after the U.S. worked hard to muster global opposition to Russian operations in Ukraine, accusations of double standards are intensifying. To an extent the U.S. has always been insulated from such criticism, but in European capitals the complaints are heard loud and clear. 

More concretely, at the start of IDF operations, the United States’ priority was to prevent escalation into a wider, regional war. Three and a half months in, hostilities have escalated on a second front with Hezbollah in Lebanon (with Israel making preparations for an invasion), a third front has opened with Ansar Allah (Houthis) in Yemen, and dozens of American personnel have been injured in renewed attacks on U.S. bases in Iraq and Syria. The U.S. administration needs a way out. The ICJ may just have thrown it a lifeline.