Giving Covenants Swords

The classical Hobbesian critique of international law famously asserts that “covenants, without the sword, are but words.” Accordingly, given Israel’s persistent non-compliance with the ICJ’s provisional measures in South Africa v. Israel, on 29 May 2024, South Africa implored the UN Security Council to act as such a sword. It requested “the Security Council to give effect to the Court’s judgments” (p. 23) under Article 41 of the ICJ Statute, submitting a 120-page dossier detailing Israel’s non-compliance with the Court’s provisional measures. This post shows why the discussions on whether the Council lacks the statutory authority to supervise and enforce the Court’s provisional measures under the ICJ Statute overlook the broader point. Namely, the Order on provisional measures is the perfect legal evidence for the Council to trigger its powers under Chapter VII and thus end the humanitarian calamity in Gaza.

The settled question: binding nature of provisional measures

While the matter of how provisional measures indicated under Article 41 of the ICJ Statute may be enforced is certainly far from a definitive conclusion, whether such provisional measures impose binding obligations on States has long since been settled. The Court seminally affirmed in LaGrand that “orders on provisional measures under Article 41 have binding effect” (para. 109). The statutory basis for the Court’s conclusion lies in Article 94(1) of the UN Charter, which provides that “[e]ach Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.” The ICJ found the term “decision” under this paragraph to encompass provisional measures.

The Court has since recalled the binding nature of provisional measures in every order on provisional measures it has issued since LaGrand, including in all three orders in South Africa v. Israel thus far. The existence of binding obligations under provisional measures for parties to a contentious dispute – as a normative matter – is thus beyond reproach. The question, in turn, becomes: if the Court’s provisional measures are legally binding on paper, how can States’ compliance with them be enforced?

The unsettled question: “decision” vs. “judgment”

While South Africa’s dossier implies that the Security Council’s competence to enforce compliance with the ICJ’s provisional measures is uncontroversial (para. 36), it remains a matter of significant doctrinal disagreement whether the Council’s enforcement authority is confined to final “judgments” of the Court or if it also extends to orders on provisional measures. Pursuant to Article 94(2), the UN Charter envisions the Council as the primary enforcer of the ICJ’s judicial pronouncements:

If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

This provision must be distinguished from the preceding paragraph of the same Article for its use of the word “judgment,” the official term for the Court’s pronouncements on preliminary objections and the merits of a given case, as opposed to “decision” as used in paragraph 1, which the ICJ found refers “not merely to the Court’s judgments but to any decision rendered by it” (LaGrand, para. 108). It is from this differing terminology, whereby “decisions” are considering binding while “judgments” are enforceable by the Security Council, that the interpretational debate regarding the Council’s competence to enforce provisional measures originates from. Regrettably, neither the ICJ nor the Security Council have opined on the matter. In the Lockerbie cases, the Council declined to act under Article 94(2) in connection with judgments of the ICJ on preliminary objections in light of their purely procedural and jurisdictional character. This precedent cannot, however, be applied to orders on provisional measures, which are not procedural orders but rather create substantive obligations that “bind the parties independently of the factual or legal situation which the provisional measure in question aims to preserve” (Ukraine v. Russia, para. 391).

The relevant entries in the leading commentaries on the UN Charter (mn. 20) and the ICJ Statute (mn. 52), both authored by Karin Oellers-Frahm, interpret the term “judgment” in Article 94(2) as applying only to formal final judgments, not orders on provisional measures. Other scholars such as Robert Kolb, on the other hand, have argued that the provision must be interpreted in light of the progressive jurisprudence of the Court, with “judgments” encompassing all decisions of the Court of a binding character, including provisional measures (p. 656). In a different vein, Judge Philip Jessup argued from the bench that “[t]here is no clear distinction between ‘decision’ and ‘judgment’ – the terms can be used interchangeably” (p. 332). Alternately, Shabtai Rosenne has contended that the term “decision,” as opposed to “judgment,” “refers to the operative provision of the judgment,” distinguishing the terms of the dispositif of a mandatory pronouncement of the Court from its reasoning in a given document (p. 1571). But whatever the case, it does not appear that the Council would need to assume any position on this debate to take action to enforce the ICJ’s provisional measures in South Africa v. Israel.

Asking the wrong question: Article 94 and Chapter VII

It is implicit in the recent resolutions of the Security Council that the situation in Gaza constitutes a threat to international peace and security within the meaning of Article 39 of the UN Charter. This empowers the Council to act under Chapter VII of the Charter to “decide what measures shall be taken … to maintain or restore international peace and security.” While decisions undertaken by the Council under Chapter VI may have binding effect, those taken under Chapter VII are automatically binding on all States by virtue of Article 48 of the Charter. The Council’s authority under Chapter VII is necessarily broad and can be exercised appropriately to enforce provisional measures indicated by the ICJ regardless of whether the term “judgments” under Article 94(2) of the Charter encompasses orders on provisional measures.

While this latter question is important insofar as its answer would contribute to a clearer understanding of the Charter’s provisions, it is by no means dispositive of the Security Council’s authority to take binding action to enforce the already binding orders of the ICJ. A case in point comes in the Council action with respect to the ICJ’s 8 April 1993 Order on provisional measures in the Bosnia v. Serbia case under the Genocide Convention. Faced with continued hostilities, eight days following the Court’s Order, Bosnia, invoking Article 94(2), requested the Security Council “take immediate measures under Chapter VII of the Charter to stop the assault and enforce the Order of the International Court of Justice.” The Council did act, but not explicitly under Article 94(2). In response to Bosnia’s request, the Council enacted Resolution 819 (1993), in which it took note of the ICJ’s provisional measures Order (preambular para. 2) but did not explicitly invoke Article 94(2) or the terms of the Court’s Order. Instead, it reaffirmed Resolution 713 (1991), where it previously determined the situation constituted a threat to international peace and security, and issued a set of binding demands directed to Bosnian Serb forces and other parties to the conflict – including a ceasefire – specifically invoking Chapter VII as the basis for its decisions.

Availing itself of its Chapter VII authority in the face of Serbia’s non-compliance with the ICJ’s order, but without acting specifically under Article 94(2), the Security Council was able not only to take enforcement action, but also take measures outside the strict purview of the Court’s provisional measures to prevent the same humanitarian calamity the Court sought to fight off but was powerless to in certain respects. For instance, the Court could not issue an order binding Bosnian Serb paramilitaries – non-State armed groups – instead directing an order to Serbia to exercise its influence over such groups to prevent genocide. The Council, however, acting under its broad Chapter VII authority, was able to make decisions binding on such groups through Resolution 819 (1993), which ultimately sought to contribute to preventing the same brand of irreparable harm or prejudice the Court sought to but could not do due to the strictly inter-State nature of its contentious jurisdiction. The Council notably could not have taken such measures if it confined itself simply to “give effect” to the provisional measures of the ICJ.

While the clarification of the scope of Article 94(2) – either by the ICJ or the Security Council – would be long overdue, with the severity of the humanitarian crisis facing the people of Gaza, the interests of expediency and urgency overshadow those of statutory clarity and resolving interpretive ambiguity. Security Council action under Chapter VII thus represents the most promising form of de facto enforcement of the ICJ’s South Africa v. Israel provisional measures without unnecessarily demanding the resolution of debates on the scope of Article 94(2) that could hamper swift and decisive action. This alternate form of Security Council oversight of provisional measures is even noted by scholars who deny that Article 94(2) directly empowers the Council to give effect to provisional measures (e.g., Lando, p. 31).

It should be noted that this interchangeability is not the case in every contentious ICJ proceeding. Take, for example, the Anglo-Iranian Oil case, where in 1951, the Security Council shelved discussion of the UK’s request for the enforcement of provisional measures pending the decision of the Court on preliminary objections (in which the Court later dismissed the case for lack of jurisdiction). That case did not concern a threat to international peace and security, potentially explaining why the Council did not take independent Chapter VII action as it did in Bosnia v. Serbia, where the Court had also not yet opined on preliminary objections.

But this does not render the Court’s provisional measures irrelevant to Chapter VII action by the Council. It is necessary to view the ICJ’s exercise of its authority to indicate provisional measures (particularly during armed conflict), as Judge Charlesworth recently argued, “as a means to contribute to the purpose of maintaining international peace and security, which is entrusted to the United Nations and to the Court as its principal judicial organ” (para. 36; see also references cited therein). The Court’s assessments of the situation in Gaza throughout its Orders must be seen in this light. In its first Order, the Court noted that Israel’s offensive had already 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” (para. 46). In its third Order, the Court observed “that the catastrophic humanitarian situation in the Gaza Strip which, as stated in its [first Order], was at serious risk of deteriorating, has deteriorated, and has done so even further since the Court adopted its [second Order]” (para. 28).

While the ICJ cannot be expected to explicitly spell out that the conditions for Chapter VII action by the Security Council have been fulfilled given its narrow subject matter jurisdiction, the content of its provisional measures in South Africa v. Israel, alongside the necessity for the indication of fresh (and progressively more forceful) measures on three occasions, clearly evidences the existence of a threat to international peace and security within the meaning of Article 39 of the Charter. The Court’s measures thus certainly – even if indirectly – establish the conditions for Chapter VII action by the Security Council.

Conclusion: unsheathing the Security Council’s sword

As the above has demonstrated, the covenants in question are very much equipped with swords – they merely remain sheathed as of the present, due primarily to the United States-imposed paralysis of the Security Council in all issues relating to Israel. But this is not to say that the U.S. position is entirely insurmountable as, for example, the Russian veto on issues relating to Ukraine is. For instance, the U.S. abstained from voting on Resolutions 2712 (2023), 2720 (2023), and 2728 (2024) on Gaza, essentially allowing their passage, and in fact, introduced the draft text that was adopted as Resolution 2735 (2024). While American diplomacy in the Security Council has been in markedly bad faith, it nevertheless is not impervious to the growing chorus of international outcry over the humanitarian calamity befalling Gaza.

As Judge Tladi highlighted in the context of the ICJ’s most recent provisional measures Order in South Africa v. Israel, despite the Court’s multiple binding decisions across three sperate Orders, “the Court is only a court!” (para. 19). To fulfill its place within the UN system, the Security Council must act unambiguously under Chapter VII to give the Court’s measures the teeth they desperately need. As South Africa lobbies the Council for such action, it remains to be seen if Hans Kelsen’s famous assertion that “the idea of law, in spite of everything, seems still to be stronger than any ideology of power” will continue to ring true as Israel inches closer and closer to true international pariah.