Desperate Times, Desperate (Provisional) Measures

On 12 February 2024, South Africa requested the International Court of Justice (ICJ) to consider exercising its power under Article 75(1) of the Rules of Court to indicate provisional measures proprio motu against Israel in Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel). This is an extraordinary request by South Africa, coming less than three weeks after the Court indicated provisional measures against Israel on 26 January 2023. It is also very rare for the Court to act proprio motu, whether prompted by a state’s request or otherwise.

South Africa’s latest request is a response to Israeli Prime Minister Benjamin Netanyahu’s statement on 9 February that Israel is preparing a ground invasion of Rafah in the south of Gaza. Following that announcement, Israeli forces carried out an initial assault on Rafah that served as cover for an operation that rescued two of the hostages held by Hamas. As many as 67 Palestinians were reportedly killed during the operation.

According to South Africa, approximately 1.4 million people—half of them children—are currently sheltering in Rafah following their displacement from elsewhere in Gaza. Although Israel has declared its intention to evacuate civilians, the modalities remain unclear. As EU High Representative for Foreign Affairs Josep Borrell put it:  ‘They are going to evacuate. Where? To the moon?’ UN officials, world leaders, and NGOs operating in Gaza have asserted that a large-scale military assault in Rafah would be devastating. UN Secretary-General Antonio Guterres wrote that an invasion of Rafah ‘would exponentially increase what is already a humanitarian nightmare with untold regional consequences’.

How will the ICJ respond to South Africa’s request? In this regard, the method by which South Africa seeks the Court’s intervention merits attention.

Pursuant to Article 75(3) of the Rules of Court, South Africa could have submitted a fresh request for the indication of provisional measures—including measures that the Court previously rejected, such as a suspension of all military operations in Gaza—based on new facts. This would have required a hearing. In the meantime, South Africa could have called upon the President of the Court to exercise his power under Article 74(4) of the Rules to ‘call upon the parties to act in such a way as will enable any order the Court may make . . . to have its appropriate effects’. Perhaps concerned with delay, South Africa did not pursue this route.

Alternatively, South Africa could have requested the Court to modify the existing provisional measures based on a ‘change in the situation’ (Article 76(1) of the Rules). This would not have required a hearing as the rules require only that the Court ‘afford the parties an opportunity of presenting their observations on the subject’ (Article 76(3)). Again, South Africa demurred.

Instead, South Africa selected the option that potentially offers the ICJ the fastest means to take legally-binding action. Under Article 75(1) of the Rules of Court, the Court ‘may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties.’ As South Africa points out, the Court may exceptionally dispense with hearings or party submissions in a scenario of extreme urgency and imminent risk of harm.

The Court has only used this power on one occasion—in LaGrand (Germany v United States), a case about the alleged violation of the consular rights of a German national on death row in the United States. In that instance, the Court acted proprio motu (albeit prompted by a request from Germany) to indicate provisional measures directing the United States not to carry out Walter LaGrand’s scheduled execution while the ICJ proceedings were pending. Despite the ICJ order, LaGrand was executed that same day. The Court has never indicated provisional measures proprio motu in the absence of a party asking it do so for reasons of urgency.

In its communication to the Court, South Africa makes the powerful point that the Court acted proprio motu in LaGrand ‘in a situation of extreme urgency affecting one individual’ while Rafah presents a  situation of extreme urgency ‘affecting an estimated 1.4 million vulnerable Palestinians’. But in requesting that the Court act of its own accord, South Africa has not proposed any specific measures. It may be implicit that South Africa seeks to resurrect its request for a suspension of all military operations in Gaza—or, at least, a suspension of any military activities in the area of Rafah. But South Africa has left the means of addressing the situation to the ICJ.  In the face of an increasingly desperate situation, many will view South Africa’s request as a noble and necessary effort to keep the pressure on Israel. The scenes and stories from Rafah and rest of Gaza are horrific and heart-breaking, and it remains difficult to see what concrete steps Israel has taken to implement the provisional measures already in place. In these circumstances, South Africa’s action may seem obviously morally and legally correct.

However, these developments also underscore the challenges of strategic litigation, which can create expectations that are neither fair nor realistic. South Africa’s latest request thrusts the Court into a role it was never designed to play—and that the Court remains ill-equipped to fulfil. Notwithstanding recent reforms to its internal practices, the ICJ is not, practically speaking, in the business of enforcing its own decisions. These responsibilities fall to other actors—namely, other UN organs and individual states. We have already seen the Court’s provisional measures order from January having some effect in prompting other states to recalibrate their relationships with Israel. Even US President Joe Biden has come to describe the Israeli military operation in Gaza as ‘over the top’, and US officials appear focused—perhaps more than at any time since 7 October—on pushing for an extended ceasefire. In a world of decentralized enforcement, the impact of an ICJ decision is often its capacity to mobilize other actors in the political arena. This is already happening, even if the desired results—a ceasefire, an end to the humanitarian crisis, the release of the hostages, a reboot of the two-state solution—remain unrealized.

Against this backdrop, South Africa’s request puts the ICJ in a bind. If the ICJ feels compelled to act on South Africa’s new request – on a very limited evidentiary record – what can it do? With the Court having already rejected the previous request for a suspension of military operations in the face of a ‘catastrophic humanitarian situation’ (para 72 of the 26 January order), it is hard to see how the new facts presented by South Africa—the imminent risk of an all-out assault on Rafah—change that equation. The Court’s previous order reflected a view that the 1948 Convention on the Prevention and Punishment of the Crime of Genocide—the basis for the Court’s jurisdiction over the dispute—limits its scope of action. It has already directed Israel to take all measures within its power to prevent the commission of genocidal acts. The Court’s own power to address the situation in Rafah cannot necessarily go any further than what the Court has already said (at least not without over-stepping its jurisdiction). A ‘reminder’ to Israel and an instruction that the 27 January order be ‘immediately and effectively implemented’ (along the lines of the Court’s second provisional measures order in Bosnian Genocide (para 61)) is possible. But in that scenario, or if the Court were to go further, there are risks.

First, there is reason to be sceptical that a new order indicating new provisional measures would be more effective than the initial order in terms of constraining Israel’s military actions. If whatever international pressure the previous order helped to galvanize has not been sufficient to persuade Israel to exercise greater restraint, it is difficult to see how a new ICJ order would do so. The weight of world opinion—including in the United States and the United Kingdom, states that have strongly backed Israel’s response to Hamas—is already lined up against the planned action in Rafah.

Secondly, by the Court acting proprio motu and not holding a hearing, a key benefit of the proceedings is left untapped: the opportunity to hold Israel to account by requiring its representatives to stand before the judges—and the world— to justify their actions in the language of law. However, an order that directs Israel to stand down in Rafah might have another impact: It could lead Israel to abandon its participation in the ICJ case. This would be a bad outcome – for South Africa, for Gaza, and for the Court.

Conversely, if the Court declines South Africa’s invitation, the Court will also take a hit. It will be portrayed as turning a blind eye to the unfolding crisis in Rafah. It will be made to look – unfairly, in my view – hapless and ineffectual, if not cruel. Those assessments will be the product of justifiable frustration. But they will also reflect a misapprehension of the Court’s role—which is not one of enforcement. And this is what South Africa’s request is really about. It is an effort to enforce the Court’s earlier provisional measures decision in the face of Israel’s apparent non-compliance (or, at least, manifestly insufficient compliance), including in Rafah.

In this sense, South Africa’s request presents the Court with a lose-lose proposition. The Court may perceive the limits of its jurisdiction in this case as precluding the more targeted form of interim relief that South Africa presumably seeks; if the ICJ were to grant such relief anyway, it may fail to contribute anything useful to the broader political process while also triggering Israel’s exit from the case.

In sum, the ICJ has already done its job—last month. It has directed Israel to take a range of measures that should be interpreted to require far greater restraint in the conduct of hostilities (lest such actions later be found to constitute acts of genocide). It has required Israel to take ‘immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance’ in Gaza. It has also given those within Israel who seek a different approach—or a new government—something to seize upon, and creates the conditions for what Itamar Mann describes as ‘counter-genocidal governance’ or what Chimène Keitner calls ‘an opportunity—and an imperative—for democratic renewal’.  But enforcing the Court’s order must fall to others. This can mean applying diplomatic pressure, imposing sanctions, or offering inducements. It can mean using domestic litigation to challenge existing lines of support, as we have seen in the Netherlands this week. And when it comes to Rafah, the key international actor may not be the ICJ but that other judicial body in The Hague: the International Criminal Court. Indeed, the Prosecutor has already expressed his deep concern over the potential ground operation in Rafah and alluded to the criminal consequences that could follow.

None of this is to say that states involved in litigation before the ICJ should never seek additional or modified provisional measures. There are situations where this may be appropriate and useful. This may even prove to be the case in the future in South Africa v Israel. But at this particular juncture, returning to the Court—when it has already set forth a marker about how far it is able or willing to go in terms of provisional measures—may be a false hope. Otherwise put, South Africa may be entering into a world of diminishing returns at the ICJ.