What to expect from ICJ’s interim order in Israel genocide case

On December 29 last year, the International Court of Justice (ICJ) announced that South Africa had instituted proceedings against Israel, accusing the Zionist state of violating its obligations under the Genocide Convention because of the crimes committed against Palestinian people in the besieged enclave of Gaza.

Besides determining Israeli violations, South Africa also requested ICJ to pronounce provisional measures to immediately stop the humanitarian catastrophe caused by the military aggression that has killed more than 25,000 people, most of them children and women.

ICJ President Joan E. Donoghue will announce the provisional verdict on January 26, though it will not be the final judgment. It will not tell us if Israel committed genocide in Gaza – that could probably take years.

The provisional verdict will basically be the ICJ’s opinion on whether there is an urgent humanitarian catastrophe in Gaza and whether Israel needs to end its military offensive on Palestinian civilians.

What are provisional measures?

Provisional measures refer to temporary decisions within the purview of the ICJ in situations of urgent and irreversible nature.

Such measures are called upon only when there is a risk of irreparable harm to a party’s rights protected under the convention and if the situation is urgent – which means irreparable harm may occur anytime if the measures are not implemented immediately.

Given the growing number of civilian deaths and the fact that there is no safe place in Gaza, there is hardly any need for the court to discuss the “irreparable harm” and “urgency” since they are the elephant in the room.

Among other pleas, South Africa requested the court to call on Israel to suspend its military operations, refrain from committing genocidal acts, punish the perpetrators and incitement of genocide, ensure adequate access to essentials like food, clean water, medical supplies, hygiene and sanitation, fuel, medical assistance, electricity and stop the displacement of people.

The significance of provisional measures lies in their inherent characteristics.

Firstly, there's a crucial element of timeliness. Given the urgent nature of the situation, the ICJ prioritises provisional measures over all other cases as articulated in Article 74 of the court's rules and deals with it as a matter of urgency.

Secondly, due to the urgency of the case, the court is not obligated to conduct an exhaustive examination of its jurisdiction.

If there's sufficient information indicating prima facie jurisdiction, the court can issue provisional measures, even if it later determines otherwise during the examination of the case's merits. These interim measures remain in force until such time and serve their purpose of preventing irreparable harm.

Thirdly, there's the legal impact of provisional measures. Article 42 of the ICJ statute stipulates that the court shall notify the parties and the UN Security Council when ordering provisional measures.

How potent is the ICJ?

If the court directs provisional measures against Israel, is it binding on the UNSC to follow up too? Does the ICJ have the power to stop Israel while UNSC could not?

As widely reported, the UN Security Council previously voted on a ceasefire in Gaza, which was vetoed by the US.

Following this vote, the UNSC was unable to insist on a ceasefire by Israel.

But an ICJ order on provisional measures is binding on parties, and Israel will become legally obligated to cease its aggression, even in the absence of a UNSC decision mandating such action.

However, it is another matter that the beleaguered Israeli Prime Minister Benjamin Netanyahu has already declared that Israel will not abide by an ICJ order.

A significant number of UN member states have voiced support for South Africa's claims. Israel has a few but politically influential states by its side – such as the US, UK and Germany.

In light of past cases and available data, ICJ is expected to seek provisional measures of restraint from Israel.

Francis O’Boyle, the first lawyer to ever win a case under the Genocide Convention at the ICJ, also expressed confidence that South Africa will win an order against Israel to cease and desist from committing all acts of genocide against the Palestinians.

An ICJ order on provisional measures will be re-stating known facts, but Israel’s refusal to accept the same would be another instance of unlawful conduct in a global forum.

On the other hand, if the court decides otherwise, “it would be a complete departure from the long and established line of jurisprudence that this court has firmly established and recently reconfirmed,” said Blinne Ni Ghralaigh of South Africa’s legal team, during the hearings.

She quoted the court’s ruling in the Qatar v. UAE case, underlining the fact that its reasoning for provisional measures include the harm associated with students being prevented from taking their exams. “If provisional measures were justified there, how could they not be in Gaza?”

Even if Israel refuses to abide by the court’s ruling, the decision can still save civilian lives as politically influential states may not be inclined to perpetually support a genocide, especially in light of an adverse ICJ ruling.

But if the court chooses not to order provisional measures, lingering legal and moral questions will persist without clear answers.