On 29 December 2023, South Africa instituted proceedings before the International Court of Justice (ICJ) against Israel, alleging violations of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) arising from Israel’s conduct in the Gaza Strip.Footnote 1 South Africa contends that both it and Israel, as parties to the Convention, are bound by “obligations erga omnes partes” to act in conformity with the Convention in relation to the Palestinian population, including the duty to take all measures within their power to prevent genocide.Footnote 2 It alleges that Israel has breached, and continues to breach, obligations under Articles I–II (the duty to prevent and prohibit acts of genocide), Articles III–IV (criminalisation and accountability), and Articles V–VI (domestic implementation and jurisdiction).Footnote 3 Its unprecedented 72-page application also contained a request for the indication of provisional measures under Article 41 of the ICJ Statute, a request Israel rejected during the oral hearings.
On 26 January 2024, the Court ordered Israel to take “all measures within its power” to prevent the commission of acts falling under Article II of the Genocide Convention, alongside additional measures.Footnote 4 Subsequent developments prompted the Court to modify these measures on 28 March 2024 and again on 24 May 2024.Footnote 5 The provisional measure of 24 May 2024 ordering Israel to immediately halt its military offensive, and any other action in Rafah governorate, which may constitute a violation of the Genocide Convention, is central to our analysis in this paper.Footnote 6 Notably, while the Court has indicated provisional measures on three occasions in this dispute, it has also declined to do so once.Footnote 7
This sequence of orders foregrounds a critical question in contemporary international adjudication: the effectiveness and enforceability of ICJ provisional measures, now understood to be legally binding following the Court’s decisions in LaGrand,Footnote 8 Avena,Footnote 9 and Armed Activities.Footnote 10 These cases leave no doubt that provisional measures are not hortatory recommendations but obligations whose breach engages state responsibility. This jurisprudential clarity removes any residual uncertainty surrounding their legal status and strengthens the case for robust enforcement mechanisms under the Charter framework. Accordingly, the question is no longer whether provisional measures are binding, but how the Charter’s institutional machinery, particularly Article 94 and the Security Council, can be mobilised to ensure compliance in the face of political resistance. In light of the evolving nature of the South Africa v. Israel proceedings, this Note and Comment approaches the case not to predict its outcome but to use it as a lens to examine whether South Africa could, or could have, sought Security Council action to enforce the ICJ’s provisional measures. The analysis therefore remains relevant regardless of how the underlying dispute progresses, as it addresses broader questions of the Council’s competence and the United Nations (UN) enforcement mechanisms.
This paper examines the options available to the Security Council for enforcing the ICJ’s provisional measures directed at Israel, and argues that the Council could, inter alia, adopt measures imposing obligations arising under the Genocide Convention, which may be termed “Security Council Treaty Action”, to maintain international peace and security in Gaza as well as Rafah. It further contends that South Africa could invoke Article 94(2) of the UN Charter to request Council action in enforcing the Court’s order. The analysis proceeds in three parts. The first situates the relationship between the ICJ and the Security Council within the framework of the UN Charter. The second examines the Security Council’s competence and practice in securing compliance with the ICJ provisional measures, including the use of Security Council Treaty Action. The third turns to Articles 94(1) and 94(2) of the Charter, assessing the feasibility of South Africa seeking enforcement through the Council, before concluding with reflections on the broader implications for the UN’s enforcement architecture. In doing so, it also considers how a Chapter VII framing could dispel the textual ambiguities surrounding Article 94 and strengthen the legal basis for enforcement.
I. Security Council–ICJ relationship under the UN Charter
The relationship between the Security Council and the ICJ is delineated in the UN Charter, yet its practical application reveals persistent tensions. The examination of relationship between the Council and the Court leads to several controversial issues.Footnote 11 Scholarly debate remains unresolved as to whether the Security Council is empowered to undertake a political review of a decision rendered by the Court. This question typically arises when the Council addresses a matter that has already been adjudicated by the Court. Equally contentious is the issue of whether the legality of the Council’s decisions is amenable to judicial review. In its advisory opinion in the Namibia case, the ICJ expressed the view that it lacks the authority to undertake such a review.Footnote 12 In this study, we are not going to deal with the general problems arising out of the relationship between the Council and the Court. We will only focus on the enforcement of the ICJ decisions by the Security Council under Article 94 and whether provisional measures can be enforced by the Council. This is widely regarded as one of the more delicate areas of public international law, with relatively limited scholarly treatment.Footnote 13
Article 94(2) of the Charter provides that, in the event of non-compliance with an ICJ judgment, the prevailing party may have recourse to the Security Council, which “may, if it deems necessary, make recommendations or decide upon measures” to give effect to the judgment. The discretionary formulation, “may … if it deems necessary”, stands in marked contrast to earlier proposals during the San Francisco Conference, which would have imposed a mandatory obligation on the Council to act upon such a request.Footnote 14 By comparison, the Covenant of the League of Nations envisaged a more automatic link between judicial pronouncements and enforcement measures.Footnote 15 The Charter’s final text, while safeguarding Council discretion, entrenched a structural dependence of the Court on the political organs of the UN for the execution of its decisions. As Tanzi has observed, “it would have been surprising, however desirable in principle, if a Charter provision were to provide an absolute obligation for the Council to act in order to give effect to a Court decision”, given the Council’s central role in matters of enforcement and the inherently political nature of its functions.Footnote 16
A. The possibility of political review of the ICJ decisions by the Security Council
The possibility of a “political review” by the Council raises further complexity. The ICJ, in its Advisory Opinion on Namibia, denied the existence of a judicial review mechanism over Council decisions.Footnote 17 The inverse question, whether the Council may review the validity of an ICJ decision, finds no express support in the Charter. On the contrary, Article 60 of the ICJ Statute stipulates that a judgment “is final and without appeal”, with revision permitted only in the limited circumstances set out in Article 61. Article 94(2) is thus not designed to allow the Council to assess the merits or legality of a Court decision.Footnote 18 Nevertheless, in practice, the political dynamics of Council deliberations under Article 94(2) can lead to outcomes that functionally resemble a review, insofar as enforcement action may be withheld on political grounds.
Some ICJ cases concerning Article 94 illustrate this tension. The Anglo-Iranian Oil Co. case (United Kingdom v. Iran) marked the first instance in which the provision was invoked. The UK requested that the Council call upon Iran to comply with the Court’s order on provisional measures. The ensuing debate in the Council saw Member States revisiting arguments presented before the Court,Footnote 19 and the draft resolution was eventually withdrawn.Footnote 20 A similar pattern emerged in the Military and Paramilitary Activities in and against Nicaragua case, in which Nicaragua sought an emergency Council meeting following the US’ non-compliance with the Court’s 1986 judgment.Footnote 21 A draft resolution calling for immediate compliance was vetoed by the US, the defaulting state.Footnote 22 While several delegations abstained,Footnote 23 they explicitly clarified that this did not amount to questioning the Court’s authority to adjudicate the matter.Footnote 24
Subsequent invocations of Article 94(2) – by Honduras in 2002, El Salvador in related proceedings, and Mexico in the Avena case in 2014 – likewise failed to generate Council enforcement action.Footnote 25 In each case, political considerations prevailed, often compounded by the involvement of a permanent member of the Council as the defaulting state. Notably, the Council has never formally enforced an ICJ judgment, though it played an indirect role in facilitating the implementation of the Court’s 1994 judgment on the Libya–Chad boundary dispute concerning the Aouzou Strip.Footnote 26
The structural obstacle posed by the veto power is particularly acute in cases involving permanent members. As Wood has noted,
if implementation of ICJ judgments is deemed to be a matter of international peace and security, the Council’s wide discretion … allows it to discuss occurrences of non-implementation on its own initiative, and to take action if necessary, including binding action such as sanctions on non-implementing states.Footnote 27
Yet in the current political climate, recourse to such measures against a permanent member, or against a close ally of one, is improbable. While Israel is not itself a permanent member, the likelihood of a US veto renders Council enforcement of provisional measures in South Africa v. Israel highly unlikely. Nonetheless, the Charter framework does not preclude such enforcement in principle, provided that permanent members do not block a resolution.
This apparent deadlock, however, is not the end of the matter. The political predictability of a veto should not obscure the fact that the Charter’s framework contains legal avenues to circumvent such paralysis. One such avenue lies in the classification of Council decisions as “procedural” rather than “substantive”, a distinction that determines whether the veto applies. It is at this point that the discussion shifts from the political constraints of enforcement to the legal possibilities embedded in the Charter itself.
B. Article 94(2), procedural classification, and the limits of the veto
The question of how the Security Council votes on matters arising under Article 94(2) sits at the intersection of law and politics.Footnote 28 The proper characterisation of decisions taken under Article 94(2) turns on the structure and function of that provision within the Charter. While Article 27 of the Charter outlines the Council’s voting procedure, the potential for a permanent member’s veto looms large in politically sensitive enforcement cases. Yet the veto, while politically foreseeable, is legally irrelevant to the Council’s powers if the matter is classified as “procedural” under Article 27(2), in which case an affirmative vote of nine members suffices and no veto applies.
Article 94(2) operates as an autonomous enforcement mechanism. Its sole trigger is a party’s failure to perform a binding ICJ judgment, and it contains no reference to the jurisdictional predicates of Chapters VI or VII.Footnote 29 Its location outside those chapters, and its independence from any requirement of a “threat to the peace”, indicates that the Council’s function in this context is post-adjudicative.Footnote 30 The Council is not authorised to revise, reinterpret, or reopen the judgment.Footnote 31 Articles 59–61 of the Statute of the Court reserve such matters to the Court alone. This institutional division strongly suggests that Article 94(2) action is procedural in character, concerned with the modalities of execution rather than the substance of the underlying dispute.Footnote 32 Treating such decisions as substantive within the meaning of Article 27(3) would collapse this carefully drawn distinction and permit a party, particularly a permanent member, to frustrate the enforcement of obligations already definitively adjudicated.
The General Assembly’s Resolution 267(III) included an annex identifying decisions it considered to be procedural. Among them was the “decision to remind Members of their obligation under the Charter”.Footnote 33 That formulation aligns closely with the function of Article 94(2), which concerns the Council’s competence to ensure compliance with pre-existing obligations, not to establish new ones. As Tanzi observes,
as it appears from the preparatory works of the said General Assembly resolution, its rationale was precisely to stress the need that the Permanent Members of the Council should not defeat the purpose of the Charter and its obligations through the exercise of the veto.Footnote 34
This objective of preventing permanent members from defeating the Charter’s enforcement scheme through the veto would be rendered meaningless if Article 94(2) resolutions were treated as substantive matters subject to Article 27(3). The systematic connection between Articles 94(1) and 94(2) reinforces the same conclusion: the latter exists to give institutional effect to the former’s legal obligation, and its purpose would be nullified if the addressee of the obligation could unilaterally block its implementation.
Even if the predominant view of legal commentators is that the voting procedure is governed by Article 27(3),Footnote 35 subsequent practice within the UN provides an important limiting principle: the doctrine of voluntary abstention. The ICJ has supported the validity of voluntary abstentions. In its 1971 Namibia Advisory Opinion, South Africa contended that the Security Council resolution requesting the opinion was invalid because two permanent members had abstained, and thus, in its view, the conditions of Article 27(3) were not satisfied. The Court dismissed this claim and held that:
the proceedings of the Security Council extending over a long period of time supply abundant evidence that presidential rulings and the positions taken by members of the Council, in particular its permanent members, have consistently and uniformly interpreted the practice of voluntary abstention by a permanent member as not constituting a bar to the adoption of resolutions … This procedure followed by the Security Council, which has continued unchanged after the amendment in 1965 of Article 27 of the Charter, has been generally accepted by Members of the United Nations and evidences a general practice of that Organization.Footnote 36
It demonstrates that voluntary abstention is accepted within the Council’s voting practice. A procedural characterisation also accords with the principle “Nemo Judex in Causa Sua”. Allowing a defiant permanent member to veto an Article 94(2) resolution would produce the untenable situation in which the judgment debtor exercises decisive control over whether the Council may act at all. In conclusion, reading Article 94(2) as subject to the voting rules in Article 27(2) is the more persuasive interpretation, as it preserves the autonomy of the provision and protects rights already determined by the Court. As Simma points out, the systematic link between the two paragraphs of Article 94, the character of an ICJ judgment as the final determination of another principal organ, and the nature of the decision as an exercise of judicial function, all weigh against applying the veto.Footnote 37 Any alternative reading would undermine the object and purpose of Article 94(2).
II. Security Council competence and practice in enforcing ICJ provisional measures
Article 41(2) of the ICJ Statute provides that “pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council”. The provision’s mandatory language underscores that, as the primary organ responsible for maintaining international peace and security, the Council must be informed of the provisional measures indicated by the Court. This is not a merely procedural formality: the drafters intended the Council to be able to respond where non-compliance with such measures threatens peace and security.Footnote 38 Security Council practice confirms that it has, on several occasions, acknowledged or discussed provisional measures indicated by the Court. In 1979, the Council deplored Iran’s continued detention of US nationals “contrary to the provisional measures indicated by the Court” in United States Diplomatic and Consular Staff in Tehran.Footnote 39 In 1993, it recalled the Court’s order to the Federal Republic of Yugoslavia to take all measures to prevent genocide in Bosnia.Footnote 40 More recently, in 2020, the Council held informal consultations on the provisional measures indicated to Myanmar in The Gambia v. Myanmar, aimed at preventing harm to the Rohingya and preserving evidence in a genocide allegation.Footnote 41
There is also precedent for Council measures intersecting with pending ICJ proceedings in ways that indirectly reinforce compliance. In the Lockerbie cases (Libya v. United Kingdom and Libya v. United States), the Council adopted Resolutions 748 (1992) and 883 (1993) under Chapter VII, imposing sanctions on Libya in relation to the same facts before the ICJ.Footnote 42 Although these resolutions did not explicitly reference the Court’s provisional measures, they effectively achieved the same functional outcome by ensuring Libya’s compliance with international obligations arising from the alleged acts of terrorism and by precluding the continuation of the proceedings under the Montreal Convention. Similarly, in the Bosnia v. Serbia proceedings, provisional measures were issued in 1993,Footnote 43 and during that period, the Council adopted Resolutions 819 (1993), 824 (1993), and 836 (1993) under Chapter VII, which aligned with the Court’s protective aims.
This practice demonstrates that the Council is not barred, legally or institutionally, from adopting measures that reinforce compliance with ICJ provisional measures, whether directly or indirectly. In the present case, South Africa has alleged violations of multiple provisions of the Genocide Convention and has secured three provisional measures orders against Israel. Exercising its primary responsibility under the Charter, the Council could adopt binding measures incorporating obligations drawn from the Genocide Convention without purporting to apply the Convention itself, a form of “Security Council treaty action” that Sir Michael Wood has argued is compatible with the Charter and not an encroachment on treaty law.Footnote 44 Article 103 of the Charter, which gives priority to Charter obligations, is often discussed in terms of Council action overriding treaty commitments, but the reverse is also possible: Council measures may legitimately impose obligations parallel to those in treaties where necessary to maintain peace and security.Footnote 45
The case for Council engagement is reinforced by the binding nature of ICJ provisional measures, confirmed in LaGrand, Avena, and Armed Activities on the Territory of the Congo. In the current proceedings, the Court has found that “at least some of the rights claimed by South Africa and for which it is seeking protection are plausible”,Footnote 46 which could serve as an additional, if not exclusive, legal basis for the Council to act to protect those rights. While political realities, particularly the likelihood of a US veto, cannot be ignored, such a prospect does not detract from the Council’s legal competence to act. As discussed in the previous section, classifying enforcement measures as “procedural” under Article 27(2) of the Charter would remove the veto from play, offering a lawful and practical pathway for Council engagement even in politically charged circumstances.
III. Security Council enforcement of ICJ provisional measures under Article 94
A key question is whether South Africa could approach the Security Council directly to enforce the ICJ’s provisional measures order against Israel under Article 94(2) of the UN Charter. This provision authorises the Council to “make recommendations or decide upon measures to be taken to give effect to the judgment” if a party so requests. The textual reference to “judgment” has led some to contend that provisional measures fall outside its scope. While commenting upon the UK’s proposals to the Security Council to take action against failure of the Iranian government with respect to the provisional measures in the Anglo-Iranian Oil Company case, the representative of Ecuador endorsed this restrictive view, suggesting that Article 94(2) was confined to final judgments.Footnote 47 However, he also noted that the Council could seek an advisory opinion from the Court on whether recommendations under Article 94(2) could extend to non-compliance with provisional measures.Footnote 48 The question was never posed to the Court, leaving the matter unresolved.
The textual divergence between “decision” in Article 94(1) and “judgment” in Article 94(2) has often been invoked to sustain this narrow reading. Yet the travaux préparatoires of the San Francisco Conference indicate that early drafts made no such distinction and employed mandatory language, signalling that the later differentiation was a political compromise to preserve Council discretion rather than to exclude provisional measures.Footnote 49 In LaGrand,Footnote 50 the Court considered whether the term “decision” in Article 94(1) of the UN Charter referred only to judgments or extended to any decision rendered by the Court, including orders indicating provisional measures. It noted that the broader interpretation would confirm the binding nature of such measures, while even the narrower interpretation would not preclude their binding force under Article 41 of the Statute. The Court accordingly concluded that orders on provisional measures have a binding effect. On the broader interpretation endorsed in LaGrand, Article 94(1) requires Israel to comply with the ICJ’s provisional measures order, while Article 94(2) provides South Africa with a procedural avenue to request Security Council action in the event of non-compliance.
Even if one were to adopt the restrictive interpretation of Article 94(2), the Security Council’s enforcement competence need not be constrained. Once it determines that non-compliance with provisional measures constitutes a threat to international peace and security, a threshold historically interpreted with considerable latitude in Council practice, it may invoke its Chapter VII powers independently of Article 94. In such cases, the authority to adopt binding measures would derive from Articles 39–42 of the Charter, as affirmed in the Certain Expenses of the United Nations case,Footnote 51 thereby sidestepping the “judgment” versus “decision” limitation entirely.
The case for enforcement is strengthened by the binding nature of provisional measures, established in LaGrand, reaffirmed in Avena, and confirmed in Armed Activities on the Territory of the Congo. This line of authority leaves no doubt that provisional measures generate legal obligations for the parties concerned, and their breach can legitimately trigger Security Council action. Historical precedent reinforces this view: in the Lockerbie proceedings, the Council’s adoption of Resolutions 748 (1992) and 883 (1993) under Chapter VII, although not expressly tied to the Court’s orders, generated binding enforcement obligations that effectively compelled compliance in relation to the same facts before the Court.Footnote 52 Similarly, during the Bosnia v. Serbia genocide case, the Council adopted Resolutions 819 (1993), 824 (1993), and 836 (1993) under Chapter VII, whose protective aims aligned closely with the Court’s provisional measures.Footnote 53
Applied to the present case, the ICJ has ordered Israel to “immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part”.Footnote 54 Israel appears to justify its continued operations on the basis that they do not conflict with its obligations under the Genocide Convention. Yet the Court’s finding that “at least some of the rights claimed by South Africa and for which it is seeking protection are plausible” is sufficient at this stage to conclude that such operations risk infringing those rights. On this reading, the Court’s order effectively requires Israel to halt all military operations in Rafah that could inflict conditions of life calculated to bring about the destruction, in whole or in part, of the Palestinian group in Gaza.
Given the catastrophic humanitarian situation, the repeated issuance of provisional measures within a span of months, and the Council’s established competence to act either under Article 94(2) or Chapter VII, South Africa has a credible basis to request Council intervention. The legal competence of the Council is unaffected by the likelihood of a veto; indeed, if the matter were treated as procedural under Article 27(2) of the Charter, the veto would not apply. Strategically, this reinforces the view that South Africa should not forgo the opportunity to seize the Council, pending the Court’s final judgment, in order to secure compliance with the ICJ’s binding provisional measures order.
IV. Concluding remarks
The South Africa v. Israel proceedings underscore both the normative strength and the institutional fragility of the ICJ’s provisional measures regime. Jurisprudence since LaGrand, Avena, and Armed Activities has settled the question of their binding force, shifting the debate from legal status to the modalities of enforcement. Within the UN Charter framework, the Security Council remains the only organ with the authority and capacity to compel compliance in situations where non-compliance threatens international peace and security. This Note and Comment has used the South Africa v. Israel case to examine the legal avenues available to a state seeking Council enforcement of provisional measures, particularly under Article 94(2) of the Charter. The Council’s historical reluctance to enforce ICJ orders reflects the political dynamics of Article 94(2), particularly the structural influence of the veto. Yet, as this paper has shown, those dynamics do not equate to legal incapacity. Procedural classification under Article 27(2), recourse to Chapter VII, and the concept of Security Council treaty action all offer lawful pathways for decisive engagement, even in politically fraught contexts.
Whether South Africa pursues these avenues will test not only the resilience of the ICJ’s authority but also the credibility of the Council’s role in the UN’s enforcement architecture. Failure to act in the face of binding judicial orders risks entrenching a perception of selective compliance and undermining the Charter’s integrated system of peace and justice. Conversely, decisive Council action, whether under Article 94(2) or Chapter VII, would reaffirm the UN’s capacity to respond collectively to grave violations of international law and would strengthen the normative link between judicial pronouncements and collective security. The choice, ultimately, is not between law and politics, but whether the Council will use the legal tools already at its disposal to uphold both.
Acknowledgements
I am grateful to the editors and two anonymous reviewers for their careful reading of the manuscript and for their insightful comments and suggestions, which substantially improved this article. Any remaining errors are my own.
Funding statement
None.
Competing interests
None.
Syed Ali AKHTAR is an Assistant Professor at the School of Law, BML Munjal University, Gurugram, Haryana, India.
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