1. Introduction
On 29 December 2023, South Africa filed a claim against Israel before the International Court of Justice (ICJ) based on the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).Footnote 1 It claims that the Israeli military intervention in Gaza is a manifest violation of the Genocide Convention,Footnote 2 as Israel has failed to prevent genocide, is committing genocide, and is failing to prevent the direct and public incitement by senior Israeli officials and others.Footnote 3 In addition, South Africa requested interim measures with the core demand that Israel immediately suspend its military operations in and around Gaza.Footnote 4
In the first half of 2024, the ICJ issued three interim orders (and rejected one request for additional provisional measures).Footnote 5 Even though the ICJ, thus far, has not granted the initial request that Israel be ordered to suspend its military operations in and against Gaza immediately, the Court has, since its first order of 26 January 2024, set out increasingly detailed provisional measures. The strongest (but also the most ambiguous) measure was adopted by a vote of 13 to 2 in the order of 24 May 2024. Here, the ICJ ordered:Footnote 6
The State of Israel shall … [i]mmediately 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.
As a result of its vagueness, legal commentators debate whether this measure is an order to implement an immediate unilateral ceasefire in Rafah,Footnote 7 or simply to halt the military operation in so far as this inflicts conditions of life that could bring about the destruction of the Palestinian group in Gaza.Footnote 8
However, the core legal issue in relation to the three interim orders is whether the ICJ acted within its judicial competence, as contemplated in Article IX of the Genocide Convention and the ICJ Statute,Footnote 9 in adopting the three orders against Israel. This is because they are founded on a vague and ambiguous, albeit progressive, understanding of the Genocide Convention, combined with a broad and novel application of Article 41 of the ICJ Statute, which allowed the Court to indicate detailed and specific interim measures. This article attempts to resolve this conundrum (Section 4) after briefly explaining the legal background and the core elements of the orders (Section 2) and analysing their most significant legal flaws (Section 3).
2. The three interim orders and their background
Article 41 of the ICJ Statute allows the ICJ to indicate any provisional measures ‘which ought to be taken to preserve the respective rights of either party’ if the Court ‘considers that circumstances so require’. Following the landmark ruling in the LaGrand case, interim measures are considered binding.Footnote 10 The core requirement for an interim measure is that the rights claimed are plausible, in addition to prima facie jurisdiction,Footnote 11 a link between the rights sought to offer protection and the provisional measures requested,Footnote 12 and urgency.Footnote 13 The ICJ regularly applies the formula that its power ‘to indicate provisional measures should be exercised only if the Court is satisfied that the rights asserted by a party are at least plausible’.Footnote 14 As the Judges have never further defined what ‘plausibility’ means, the standard is quite vague.Footnote 15 Generally, it means that the ICJ is not required to establish definitively the existence of the rights claimed,Footnote 16 but that there must be some degree of probability regarding their factual basisFootnote 17 and that the claimed interpretation of a given treaty is relevant, generally possible and not (completely) absurd.Footnote 18 However, in the absence of a clear indication as to the degree of probability required, the Court has given itself broad discretion within the ambit of Article 41 of the ICJ Statute, and uncertainty remains. Generally, the jurisprudence indicates that the plausibility threshold implies that the rights claimed are not (completely) absurd. Therefore, it suggests quite a low threshold.Footnote 19
2.1. The order of 26 January 2024
Against this background, the ICJ adopted the first order on 26 January 2024 against the votesFootnote 20 of Vice President SebutindeFootnote 21 and Judge ad hoc Barak.Footnote 22 The order sets out, in the most detailed manner, the requirements for the provisional measures against Israel and serves as a basis for the later decisions.Footnote 23 The Court ruled that (i) it had prima facie jurisdiction based on Article IX of the Genocide Convention,Footnote 24 (ii) South Africa had legal standing based on the erga omnes natureFootnote 25 of the obligations invoked,Footnote 26 and (iii) the further requirements for provisional measures founded on Article 41 of the ICJ Statute had been met.
Thus, the first aspect is that the Court applied Article 41 of the ICJ Statute not in the classical sense, where the applicant’s own rights are concerned,Footnote 27 but rather in an erga omnes situation in which the rights of a third party (here, the Palestinians in Gaza) were claimed. However, the application of Article 41 of the ICJ Statute in such a scenario is not a novelty of the present order: the ICJ used Article 41 in an erga omnes situation in its order of 23 January 2020 in The Gambia v Myanmar.Footnote 28
Hence, the most important reasoning is that the Court affirmed that at least some rights, which the applicant claimed and in respect of which it was also seeking protection, were plausible, stating:Footnote 29
This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention.
This conclusion was based on three core arguments. First, the Palestinians in Gaza are considered to form a significant part of a distinct ‘national, ethnical, racial or religious group’Footnote 30 within the meaning of Article II of the Genocide Convention. The second argument concerned the scope of civilian casualties and destruction in Gaza.Footnote 31 The most important evidence was information provided by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), even though the Court acknowledged that these figures could not be independently verified.Footnote 32 The third and final argument consisted of statements by senior Israeli officials.Footnote 33 In particular, the Court relied on four specific statements, which included two assertions made by Yoav Gallant, Defence Minister of Israel at the time. The Court referred to an announcement on 9 October 2023 that ‘he had ordered a “complete siege” of Gaza City and that there would be “no electricity, no food, no fuel” and that “everything [was] closed”’.Footnote 34 It also considered an extract from a speech to Israeli troops on 10 October 2023:Footnote 35
I have released all restraints … You saw what we are fighting against. We are fighting human animals. This is the ISIS of Gaza. This is what we are fighting against … . Gaza won’t return to what it was before. There will be no Hamas. We will eliminate everything. If it doesn’t take one day, it will take a week, it will take weeks or even months, we will reach all places.
Furthermore, the Court cited a statement made by Isaac Herzog, President of Israel, on 12 October 2023:Footnote 36
We are working, operating militarily according to rules of international law. Unequivocally. It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not aware, not involved. It is absolutely not true. They could have risen up. They could have fought against that evil regime which took over Gaza in a coup d’état. But we are at war. We are at war. We are at war. We are defending our homes. We are protecting our homes. That’s the truth. And when a nation protects its home, it fights. And we will fight until we’ll break their backbone.
Finally, the ICJ pointed to a message written by the Minister of Energy and Infrastructure at the time, Israel Katz:Footnote 37
We will fight the terrorist organization Hamas and destroy it. 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.
As the next step, the Court determined, based on a generic statement, that a link existed between the rights claimed by the applicants and at least some of the provisional measures requested, which the Court found plausible.Footnote 38
Finally, it concluded that there was a risk of irreparable prejudice and urgency.Footnote 39 The Judges relied on the fundamental values protected by the Genocide Convention,Footnote 40 which confirmed ‘the most elementary principles of morality’Footnote 41 and ‘that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment’.Footnote 42
Regarding the provisional measures laid down, it is the most reluctant order as the first three measures merely reiterated Israel’s general obligations under the Genocide Convention. The Court ordered, against the votes of Judges Barak and Sebutinde:Footnote 43
[(i)] The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention … [and (ii)] The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above.
In addition, it adopted by 16 votes to 1 (Judge Sebutinde) the notion that ‘[t]he State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip’.Footnote 44 In addition, the ICJ indicated a specific measure relating to the improvement of the situation in Gaza – namely, that Israel ‘shall 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 the Gaza Strip’.Footnote 45 Further measures were ordered to take effective steps to prevent the destruction of, and ensure the preservation of, evidence in relation to acts within the scope of Articles II and III of the Genocide Convention,Footnote 46 and for Israel to submit a report to the Court within a month on the measures taken to comply with the order.Footnote 47
2.2. The order of 28 March 2024
The second order was adopted after a request from South Africa to modify and tighten the first order.Footnote 48 This request was partly successful as the Court, after confirming the initial order by a vote of 14 to 2 (Judges Sebutinde and Barak dissenting),Footnote 49 adopted further, more specific measures. They were based on the assumption that the situation in Gaza, as regards the risk of famine, had further deteriorated and had therefore changed.Footnote 50 It ordered unanimously that Israel ‘take all necessary and effective measures to ensure, without delay, in full co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance’Footnote 51 and, by 15 votes to 1,Footnote 52 that Israel ensure that:Footnote 53
its military does not commit acts which constitute a violation of any of the rights of the Palestinians in Gaza as a protected group under the Convention on the Prevention and Punishment of the Crime of Genocide, including by preventing, through any action, the delivery of urgently needed humanitarian assistance.
Israel was again required to submit a report to the Court on the fulfilment of these measures.Footnote 54
The decision was based on Article 76(1) of the Rules of Court,Footnote 55 which allows the ICJ to ‘revoke or modify any decision concerning provisional measures if, in its opinion, some change in the situation justifies such revocation or modification’.Footnote 56 The Judges asserted that a new situation within the meaning of Article 76 of the Rules of Court had arisen,Footnote 57 as the ‘catastrophic living conditions’ of the Palestinians had further deteriorated,Footnote 58 in that famine was no longer a mere risk, as was decided in the first order, but was ‘setting in’.Footnote 59 Second, the order affirmed that the conditions in Article 41 of the ICJ Statute had been met based on the conclusions drawn in the first order.Footnote 60 Finally, the ICJ decided that the ‘new’ grave humanitarian situation in Gaza entailed a risk of irreparable prejudice and that there was urgency.Footnote 61
The order was accompanied by a declarationFootnote 62 by Judges Xue, Brant, Gómez Robledo and TladiFootnote 63 and an individual declaration by Judge Charlesworth,Footnote 64 which stated that it was regrettable that the Court had not explicitly ordered Israel to suspend its military operations based on the grave humanitarian situation in Gaza.
2.3. The order of 24 May 2024
The latest modification of 24 May 2024 was adopted by a vote of 13 to 2 (the dissenting voices were, again, Judges Sebutinde and Barak).Footnote 65 The Court affirmed the provisional measures indicated in its two previous ordersFootnote 66 and adopted four additional specific measures, including the ambiguously framed measure to halt the military offensive in the Rafah Governorate.Footnote 67 Further measures were the obligation to ‘[m]aintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance’Footnote 68 and to ‘[t]ake effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission, or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide’,Footnote 69 as well as to submit a further report on the measures taken in order to give effect to this order.Footnote 70
The order was again based on Article 76 of the Rules of Court.Footnote 71 The ICJ concluded briefly that there was a new situation arising from the military invasion of RafahFootnote 72 as the humanitarian situation was ‘now to be characterized as disastrous’.Footnote 73 It affirmed that the new situation also met the requirements of Article 41 of the ICJ Statute,Footnote 74 again based on the findings of the first order.Footnote 75 Finally, the ICJ justified in more detail that the new situation entailed irreparable prejudice to plausible rights and that a situation of urgency existed.Footnote 76 Reiterating that, on 7 May 2024, the Rafah military offensive began and that 800,000 Palestinians had been displaced,Footnote 77 the Court employed the following key arguments. First, the Court cited UN officials who had warned of the immense risk to the civilian population associated with a military offensive in Rafah.Footnote 78 Second, it reasoned that ‘United Nation sources’ indicated that these risks had started to materialise and would intensify even further.Footnote 79 Third, it concluded that, on the basis of the information available to the Court, it was not convinced that the steps that Israel had taken so far (in particular, the efforts to evacuate the civilian population and to provide food and shelter in the Al-Mawasi area) were sufficient to alleviate the immense risk to the Palestinian population.Footnote 80 The ICJ supported this conclusion with a statement by the Commissioner-General of the UNRWA, Philippe Lazarini, on 18 May 2024 regarding the poor conditions in Al-Mawasi and stated, without further explanation, that Israel had provided insufficient information concerning the safety of the population during the evacuation process and the availability of sufficient supplies in the Al-Mawasi area.Footnote 81
3. The core legal issues
The first problematic issue in reading the orders is that, from the outset, they give the impression of a rather one-sided view, even if all contain an obiter dictum calling for the release of the hostages taken by Hamas on 7 October 2023.Footnote 82 The reason is the introduction to the first order, in which the conflict is framed in general. The Hamas attack is described without naming the atrocities committed. The Court states ‘only’ that ‘on 7 October 2023, Hamas and other armed groups present in the Gaza Strip carried out an attack in Israel, killing more than 1,200 persons, injuring thousands and abducting some 240 people, many of whom continue to be held hostage’.Footnote 83
However, the effects of the military operation in Gaza are described in the following strong wording:Footnote 84 ‘Israel launched a large-scale military operation in Gaza, by land, air and sea, which is causing massive civilian casualties, extensive destruction of civilian infrastructure and the displacement of the overwhelming majority of the population in Gaza’.
This, while the ICJ seems to ignore the fact that some of the destruction and suffering in Gaza might also have been caused by Hamas and its war tactics, such as fighting within populated areas, using civilians as human shields, and embedding fighters and military infrastructure (such as weapons and tunnels) within civilian areas.Footnote 85 In addition, the treatment of evidence,Footnote 86 as well as setting the date for the hearing before the third order (which gave Israel insufficient time to prepare its submission),Footnote 87 also raise the question of whether Israel was treated fairly.
However, the core legal issues are that the orders indicate a rather vague, but nevertheless progressive, handling of the Genocide Convention (Section 3.1) combined with new and creative application of Article 41 of the ICJ Statute (Section 3.2).
3.1. Application of the Genocide Convention
According to Article I of the Genocide Convention, a state has the duty to punish and prevent genocide which, according to ICJ jurisprudence, includes the obligation not to commit genocide.Footnote 88 In previous orders indicating interim measures regarding the Genocide Convention, the Court was generally clear as to which obligations under Article I are relevant. The Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia v Montenegro)) implies that the ICJ limited its findings to the duty to ‘prevent’.Footnote 89 In its order in The Gambia v Myanmar, the Court expressly referred to all possible forms of perpetration and stated that it was plausible that the applicant can ‘seek compliance by Myanmar with its obligations not to commit, and to prevent and punish genocide’.Footnote 90 However, the current orders are opaque regarding the relevant obligations. The Judges used a very vague formulation – namely, that ‘the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention’Footnote 91 was plausible. Thus, the ICJ left it open (very likely because of disagreement among the JudgesFootnote 92) as to whether the orders were concerned with all three possible forms of perpetration, including the duty ‘not to commit a genocide’, or only with the duty ‘to prevent’ or with the obligations ‘to prevent and punish genocide’.Footnote 93
Instead, the ICJ took a different approach. In the first order, the Court based the affirmation of the plausibility of the rights (apart from the determination that the Palestinians in Gaza constituted a protected group)Footnote 94 on two arguments – namely, the scope of the destruction in Gaza and statements by Israeli officials – without, however, specifying for which requirements in Articles I, II, or III of the Genocide Convention they had been cited.Footnote 95 Even though this finding was affirmed in the abstract by the following two orders,Footnote 96 the Court seems to have followed an even more limited approach there. It did not elaborate at all on the extent to which, in the alleged new situations, the rights asserted under the Genocide Convention were plausible. Rather, it implied that the very serious humanitarian crisis was sufficient in itself.Footnote 97
3.1.1. The missing elaboration on genocidal intent
Thus, the ICJ’s plausibility analysis does not consider the question of genocidal intent,Footnote 98 and therefore remains completely silent on the question of whether the Israel Defense Forces could plausibly be said to have been acting with genocidal intent in Gaza. This is striking, as genocidal intent is the core characteristic of the crime of genocide.Footnote 99 It is the existence of genocidal intent that distinguishes genocide from other international crimes, such as war crimes or crimes against humanity.Footnote 100
The only order that mentions genocidal intent at all is the first; the others are completely silent on this issue. However, the first order contains only one explicit reference, and nothing else. The ICJ cited only paragraph 198 of its previous Genocide Judgment of 2007,Footnote 101 citing it and stating that ‘[t]he Court recalls that, in order for acts to fall within the scope of Article II of the Convention, “the intent must be to destroy at least a substantial part of the particular group. That is demanded by the very nature of the crime of genocide: since the object and purpose of the Convention as a whole is to prevent the intentional destruction of groups, the part targeted must be significant enough to have an impact on the group as a whole”’Footnote 102 This clearly distinguishes the present decisions from the recent interim order in The Gambia v Myanmar, in which the Court referred in its plausibility examination to the findings of a fact-finding mission, which had concluded ‘that on reasonable grounds … the factors allowing the inference of genocidal intent [were] present’.Footnote 103
Moreover, the orders cannot be interpreted as having established implicitly the plausibility of genocidal intent in the Israeli military intervention. The scope of destruction in Gaza (that even the Court admits could not be based on verifiable information)Footnote 104 does not imply anything about intent.Footnote 105
Even the statements by Israeli officials cited are not conclusive as regards the plausibility of genocidal intent.Footnote 106 The former Energy Minister had no control over the army.Footnote 107 Moreover, declarations by the Israeli President and the Defence Minister at the time do not expressly indicate that the Palestinian people should be destroyed. Rather, they are in principle directed against Hamas, and the statements relating to the Palestinians are highly ambiguous. The first statement by the Defence Minister shows only that he ordered a complete siege of Gaza City.Footnote 108 The second, even though it contains the highly objectionable formulation ‘human animals’, is not related to the Palestinian civilians, but to Hamas, as the minister states expressly that there will be ‘no Hamas’.Footnote 109 The Israeli President argues that the civilians in Gaza are also responsible in that they could have revolted against the evil regime, that Israel is at war and that it will fight until ‘they break their backbone’.Footnote 110 The interpretation that he was referring to the civilians in Gaza and not only to Hamas seems somewhat unconvincing, as he also states that Israel is operating militarily according to the rules of international law.Footnote 111
In addition, the isolated consideration of these statements is insufficient as it ignores all other clearly available evidence that makes genocidal intent implausible. This evidence includes the fact that the war was started by Hamas,Footnote 112 that the Israeli military was and is using various measures to minimise civilian harm,Footnote 113 such as issuing evacuation orders for civilians or early warnings of bombardments and the provision of humanitarian aid (which the ICJ itself mentions – even though it might not be seen as sufficient),Footnote 114 and that Israel’s official war policy was directed against Hamas.Footnote 115 Moreover, the Judges also ignore the fact that the suffering of the civilian population might also have been caused by Hamas and its war tactics, which put its civilians at risk.Footnote 116
Finally, basing plausibility on only these four isolated, ambiguous statements, and the scope of destruction or the humanitarian crisis, raises questions regarding the standard of proof. Because of the severity of the crime, a high standard of proof of genocidal intent is required at the merits stage.Footnote 117 As a result of the vagueness of the plausibility standard, ICJ jurisprudence is unclear regarding the required standard of proof for interim measures. The ICJ, even for cases alleging genocide, has not developed abstract criteria for a minimum standard of proof and the case law remains unclear as to the degree of possibility that is needed to show genocidal intent plausibly. However, it can be established from earlier decisions that, while full proof of genocidal intent is not necessary,Footnote 118 at least some factual basis is required for the allegation of such intent. In the case concerning the Legality of the Use of Force (Yugoslavia v Belgium), the ICJ implied that, as genocide requires genocidal intent, bombardments and the recurrence of the use of force are in themselves insufficient for a plausible claim based on the Genocide Convention.Footnote 119 It referred for this reasoning to the second order on interim measures in the Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia v Montenegro)). Here, the Court had argued that ‘partition and dismemberment’ or annexation of a sovereign state, or its incorporation into another state, do not in themselves constitute acts of genocide.Footnote 120 In the interim order in The Gambia v Myanmar decision, adopted on 23 January 2020,Footnote 121 which also concerned an erga omnes situation, the Court even applied quite a high standard of proof. The plausibility of genocidal intent was justified by a report from the Independent Fact-Finding Mission on Myanmar, which the Human Rights Council had set up and which had collected and verified evidence over a two-year period.Footnote 122
Moreover, as previously mentioned, the plausibility analyses regarding the new humanitarian situation were even more tenuous in the last two orders, where the Court only referred to the new situation without addressing the plausibility of genocidal intent at all.Footnote 123
Therefore, it can be concluded that, even though the orders were in principle concerned only with the effects of Israel’s military intervention in Gaza, they did not establish with any level of plausibility that the military measures were conducted with genocidal intent. This either suggests that the ICJ was concerned primarily with the duty to prevent genocide, which generally does not require genocidal intent to be established at this stage of the proceedings,Footnote 124 or with a very broad understanding of the duty not to commit genocide. Such an understanding is implied by the irrelevance of the plausibility of genocidal intent. If it is unnecessary to show plausibility, then it is effectively treated as a dispensable criterion for provisional measures, which suggests that the duty not to commit genocide also includes an obligation to prevent a serious humanitarian crisis in an armed conflict, so that acts that might fall within Article II(c) of the Genocide Convention, in particular, are generally avoided.Footnote 125 This approach is especially obvious in the second and third orders, in which the ICJ refers only to the catastrophic humanitarian situation and then orders concrete measures, such as an increase in humanitarian assistanceFootnote 126 and the ambiguous order to halt military action in Rafah,Footnote 127 so as to prevent or stop acts possibly falling within Article II(c) of the Genocide Convention.
3.1.2. A broad understanding of the duty to prevent
As just outlined, the vagueness of the reasoning might indicate that the orders can be understood as relating primarily to the obligation to prevent. According to the ICJ’s broad reading of Article I of the Genocide Convention, the duty to prevent exists before genocide is committed,Footnote 128 as it arises ‘at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed’.Footnote 129 Therefore, it is possible to argue – as did Judge Nolte – that a finding of plausibility of genocidal intent is unnecessary at the provisional measures stage.Footnote 130
Even though such a reading is already problematic, given that the orders are also silent on the question of whether it was plausible that Israel had learned of a serious risk that genocide would be committed,Footnote 131 the key issue is that it would also imply a broad understanding of the duty to prevent. As the orders are limited to the tragic humanitarian situation in Gaza without establishing plausible genocidal intent and the plausibility that Israel knew of the risk that genocide would be committed, they suggest the understanding that the obligation to prevent also signifies ‘self-prevention’Footnote 132 within the framework of armed conflict.Footnote 133 The duty to prevent seems to be understood as a duty to halt or not to cause serious humanitarian crises (in an armed conflict) as they imply the abstract risk that, in particular, acts within the meaning of Article II(c) of the Genocide Convention will be committed.Footnote 134
3.1.3. Preliminary conclusions: A vague and dubious interpretation
Even though the orders remain vague and ambiguous, the Court’s approach implies a rather broad reading of the Genocide Convention in the sense that it contains a generous understanding of either the obligation not to commit or to prevent genocide within the meaning of Article I of the Genocide Convention. Because of the absence of any elaboration on plausible genocidal intent, the ICJ implies that a state is also under the general duty to prevent serious human suffering in an armed conflict that would increase the probability of acts within the meaning of Article II(c) of the Genocide Convention. The ICJ therefore implies that an armed conflict with severe civilian casualties constitutes an abstract risk that a genocide will be committed. Such a broad interpretation might be justified by a further progressiveFootnote 135 reading of earlier ICJ jurisprudence, in which the Court described the duty to prevent as a positive obligation on states to do their best to prevent acts prohibited by the Genocide Convention.Footnote 136 In addition, such a novel reading might be seen as a further justified doctrinal development by authors who favour a dynamic and progressive reading of the Genocide Convention, as it is an interpretation that helps to minimise human suffering, and therefore also contributes to minimising the risk that the terrible crime of genocide might occur.Footnote 137
However, such a progressive reading cannot be reconciled with the Genocide Convention itself. It would turn the obligation to prevent (or not to commit) genocide under Article I of the Convention into an all-encompassing due diligence obligation to prevent serious human suffering in armed conflicts to minimise the abstract risk that acts covered by Article II of the Convention might occur.Footnote 138 It would therefore make it the most demanding general obligation that would overshadow, and perhaps even include,Footnote 139 the more specific obligations to prevent human suffering under human rights law, and particularly international humanitarian law. Those rules include, in particular, the detailed rules in the Additional Protocol to the Geneva Conventions relating to the protection of victims of international armed conflicts of June 1977.Footnote 140
Such a broad understanding can no longer be justified using the customary rules of treaty interpretation enshrined in Article 31 of the Vienna Convention on the Law of Treaties (VCLT).Footnote 141 The main reason is that this would be inconsistent with the wording and purpose of the Genocide Convention, which is to prevent the ultimate crime of genocide characterised by genocidal intent as expressly outlined in its Article II, and not to minimise humanitarian catastrophes and human suffering in armed conflicts in general. In its advisory opinion on the legality of the threat or use of nuclear weapons, the Court clearly pointed out that even the use of nuclear weapons can constitute genocide only with the required genocidal intent, and that such intent must be proved.Footnote 142 Furthermore, such a reading cannot be justified with reference to Article 31(3)(c) of the VCLT, as this would ignore the detailed rules on preventing human suffering in international humanitarian law and render the Genocide Convention the overarching legal framework in every international armed conflict. In addition, such a broad reading would circumvent the jurisdictional limits in Article IX of the Genocide Convention, as ICJ jurisprudence confirms, in that it does not grant the ICJ the authority to rule on alleged breaches of other obligations under international law which do not amount to genocide, particularly those protecting human rights in an armed conflict.Footnote 143
3.2. The new application of Article 41 of the ICJ Statute
In addition to this innovative reading of the Genocide Convention, the ICJ applied Article 41 of the ICJ Statute in a novel and broad manner. The reason is that it adopted detailed and specific measures to diminish the humanitarian crisis, such as increasing humanitarian aid,Footnote 144 maintaining the Rafah crossing open,Footnote 145 and the ambiguous measure relating to halting military action in Rafah.Footnote 146 This is a unique approach in the history of the ICJ. Even though the Court has already adopted specific measures as provisional measures (also in situations of armed conflict),Footnote 147 it has never adopted specific and detailed measures where a breach of Article I of the Genocide Convention was in dispute. It has always limited itself to setting out generic interim measures, such as repeating in principle (only) in abstract the obligations contained in the Genocide Convention. Some examples of these generic measures are that the respondent was ordered to ‘take all measures within its power to prevent commission of the crime of genocide’Footnote 148 or ‘to prevent the commission of all acts within the scope of Article II of the [Genocide] Convention’.Footnote 149 The proceedings between Ukraine and Russia in the case Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation) do not constitute an exception, even though specific interim measures, such as the immediate suspension of military operations in Ukraine,Footnote 150 were indicated. Here, the crucial question was not whether the defendant was in breach of Article I of the Genocide Convention by not punishing, not preventing, or committing genocide, but whether Russia had wrongly accused Ukraine of genocide and was using non-legal means on the pretext of preventing genocide.Footnote 151
Thus, in addition to more specific legal problems relating to some of the measures adopted – such as the fact that the Rafah crossing is not controlled by Israel alone, but also by EgyptFootnote 152 – the core question is whether this approach is still in conformity with Article 41 of the ICJ Statute, allowing the ICJ to indicate ‘any provisional measures which ought to be taken to preserve the respective rights of either party’ as it might contravene the rules of state responsibility within the framework of the Genocide Convention.
According to the ICJ itself, a state can be held liable only if genocide within the meaning of Article II or III of the Genocide Convention occurs.Footnote 153 This is of particular importance for the obligation to prevent genocide and corresponds to the existing case law of the ICJ supported widely within legal academia.Footnote 154 The ICJ held:Footnote 155
It is at the time when commission of the prohibited act (genocide or any of the other acts listed in Article III of the Convention) begins that the breach of an obligation of prevention occurs. In this respect, the Court refers to a general rule of the law of State responsibility, stated by the ILC [International Law Commission] in Article 14, paragraph 3, of its Articles on State Responsibility ... However, if neither genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen which, under the rule set out above, must occur for there to be a violation of the obligation to prevent.
The key issue here is whether this system can be circumvented by establishing specific preventive duties by way of binding interim measures under Article 41 of the ICJ Statute, where non-compliance would lead to state responsibilityFootnote 156 even if no genocide was ever committed. As in parallel cases, the ICJ limited itself to generic obligations, repeating the general obligations of the Genocide Convention; the specific issue did not arise. Instead, the decision in the merits phase was, in principle, parallel with the question of compliance with the interim measures.Footnote 157
One could argue that such a finding is the logical consequence of binding interim measures, leading to the possibility that a state may win on the merits, but still be in breach of its international law obligations to implement the binding interim measures, as lately confirmed expressly by the ICJ.Footnote 158 In the recent judgment in Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation), the ICJ ruled that state responsibility for non-compliance with an interim measure also arises if the respondent state wins on the merits. The Court rejected only restitution as an adequate form of reparation and ruled that a declaration of non-compliance is sufficient satisfaction.Footnote 159 Thus, it confirmed the idea that non-compliance with an interim measure has resulted in damage to the international legal order as such.Footnote 160
However, such an argument is not convincing in the present circumstances, where the ICJ could have protected the rights in question as it had done in past cases with general measures, and the specific measures could circumvent the principle that, under the Genocide Convention, no state responsibility can arise without the occurrence of genocide.
Thus, the current specific interim measures can be regarded as being in conformity with the international law of state responsibility only if they are interpreted restrictively at the merits stage – namely, that such a specific duty can be said to exist only if the ICJ has established at the merits stage that a genocide within the meaning of Articles II and III of the Genocide Convention has occurred. Otherwise, the ICJ would be disregarding the rule of customary interpretation in Article 31(3)(c) of the VCLT. This rule states that ‘any relevant rules of international law applicable in the relations between the parties’Footnote 161 must be taken into account in interpreting an international treaty.
3.3. Is the ICJ the ultimate genocide prevention body?
Finally, an overall analysis of the three orders indicates that the Court continues to define – in line with earlier decisionsFootnote 162 – its judicial role progressively. The ICJ is using interim measures (again) to supervise a military conflictFootnote 163 and to attempt to mitigate human suffering. The Court has started to supervise the Gaza conflict, in the words of the Judges Sebutinde and Barak, as a ‘micromanager’.Footnote 164 Earlier examples of a similar approach are found in the orders in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v Azerbaijan). Here, the ICJ adopted three ordersFootnote 165 over a period of two years, indicating provisional measures against Azerbaijan to also oversee the ongoing conflict in Nagorno Karabakh and to improve the situations of Armenian civilians (and their cultural heritage) based on the International Convention on the Elimination of All Forms of Racial Discrimination.
However, the approach adopted by the ICJ in the current case tests the limits of the Genocide Convention. By ordering increasingly specific interim measures, the Court is gradually attempting to enforce its broad and innovative application of the Genocide Convention – namely, that a state must prevent catastrophic humanitarian situations in armed conflicts to minimise the abstract risk that genocide will be committed. The most important innovation here is that the Court has adopted specific interim measures that are legally binding and offered it the possibility to enforce the (normally unenforceable) obligation to prevent a genocide before it actually occurs. Thus, to begin to act as the ultimate genocide prevention body, the ICJ skilfully uses the binding nature of interim measures, Article 76 of the Rules of Court, the novel application of Article 41 of the ICJ Statute, a progressive interpretation of the Genocide Convention, as well as the low plausibility threshold.
This is a new competence created by the ICJ. Article IX of the Genocide Convention grants the Court the authority only to decide disputes ‘relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III’. It does not establish the ICJ as an international supervisory body responsible for taking all necessary measures to prevent and minimise risks that genocide may occur.Footnote 166
Thus, Article 41 of the ICJ Statute, in combination with Article 76 of the Rules of Court, also cannot be used to turn the ICJ into such a body. Article 76 of the Rules of Court does not permit the ICJ to enforceFootnote 167 or implementFootnote 168 previous provisional measures. It permits only the modification of existing provisional measures in the event of a change of circumstances, which must be adopted again within the framework of Article 41 of the ICJ Statute.Footnote 169 Article 41 protects the authority of the Court to conduct effective proceedings at the merits stage by allowing interim measures to preserve the protected rights. At the merits stage, the ICJ can, as a judicial body, decide whether the Genocide Convention has been correctly applied or breached by a state (including questions of state responsibility) in ex post scenarios.
As former ICJ President Jiménez de Aréchaga rightly pointed out:Footnote 170
The Court’s specific power under Article 41 of the Statute is directed to the preservation of rights ‘sub-judice’ and does not consist in a police power over the maintenance of international peace nor in a general competence to make recommendations relating to peaceful settlement of disputes.
Similarly, Article IX of the Genocide Convention does not grant the ICJ the power to prevent possible breaches of the Genocide Convention and to guarantee its enforcement. The contracting parties did not establish the ICJ as a side body to the UN Security Council with the competence to maintain and secure a world free from genocide. Therefore, Article VIII of the Genocide Convention, which foresees actions by the competent organs of the United Nations (such as, in particular, the Security Council) to take appropriate action for the prevention and suppression of acts of genocide, is also regarded as irrelevant to the competence of the ICJ.Footnote 171 The ICJ itself has stated that Article VIII does not appear to grant additional competence to it in addition to Article IX of the Genocide Convention.Footnote 172
4. Ultra vires?
Finally, the question arises as to whether the ICJ acted outside the scope of its authorityFootnote 173 and disregarded the limit of its competence as a judicial organ. As a judicial organ,Footnote 174 the Court is under a duty in accordance with Article 38(1) of the ICJ Statute to decide the disputes submitted to it in accordance with international lawFootnote 175 and is limited by the consent given by the states. As former ICJ President Judge OwadaFootnote 176 correctly emphasised:Footnote 177
The International Court of Justice is not the Security Council; the Court is not empowered by its Statute, nor authorized by the United Nations, to take measures, even on a provisional basis, which would encroach upon the sovereignty of a state without its consent.
Thus, the ICJ cannot act as a legislatorFootnote 178 and it is established ICJ jurisprudence that it is the duty of the Court ‘to interpret treaties, not to revise them’.Footnote 179
However, it is well known that is difficult to distinguish between interpretation and modification because of the element of creativity in every interpretation. This particular point was very clearly described in the Harvard Law School ‘Draft Convention on the Law of Treaties’ of 1935. The authors wrote:Footnote 180
The process of interpretation, rightly conceived, cannot be regarded as a mere mechanical one of drawing inevitable meanings from the words in a text, or of searching for and discovering some pre-existing specific intention of the parties with respect to every situation arising under a treaty … In most instances … interpretation involves giving a meaning to a text – not just any meaning which appeals to the interpreter to be sure, but a meaning which, in the light of the text under consideration and all of the concomitant circumstances of the particular case at hand, appears in his considered judgment to be one which is logical, reasonable, and most likely to accord with and to effectuate the larger general purpose which the parties desired the treaty to serve.
In addition, different conceptions of the role of (international) courts exist. Is it their duty to develop the applicable norms progressivelyFootnote 181 to further the evolution of international law? Or should they apply them merely as they stand, use judicial restraint and adopt more conservative interpretations?
This situation has led to a lack of established legal criteria for when the ICJ actually transgresses its authority.Footnote 182 In contrast to European law, where national courts and academics discuss possible criteria for determining whether the European Court of Justice has acted ultra vires,Footnote 183 such a discussion – with the exception of international arbitral lawFootnote 184 – is virtually absent in the realm of international courtsFootnote 185 and, in particular, the ICJ.Footnote 186 The are some exceptional dissenting opinions by international judges,Footnote 187 while academic discussion generally regards the work of international tribunals, and the decisions of the ICJ in particular, as positive.Footnote 188 Scholars generally approve of the decisions and attempt to render them more effectiveFootnote 189 because international law and its enforcement by the ICJ are seen as something intrinsically good. The discussion of limits to the judicial powers of the ICJ is not even yet in its infancyFootnote 190 and a definitive analysis of whether the ICJ has transgressed its power is therefore a challenging exercise.
However, it is possible to make some preliminary assessments of the present orders based on the current case law, even of the ICJ itself,Footnote 191 regarding a (manifest) excess of powers of arbitral tribunals, as well as the discussion regarding the limitations on the authority of the European Court of Justice. Looking at these discussions, an important determinant for an ultra vires act is a serious element of arbitrarinessFootnote 192 as a result of a manifestly false application of law based on an untenable, and not only erroneous, interpretation caused, in particular, by a severe misapplication and/or disregard of the relevant rules of interpretation.Footnote 193
Thus, the core issue in analysing the current orders is whether one regards the decisions as a further legitimate, progressive development of the Genocide Convention, Article 41 of the ICJ Statute and the role of the ICJ. Are they ultimately justified by the imperative to prevent human suffering and any conceivable risk of genocide, with the ICJ acting as guardian of justice and humanity through the progressive development of international law? Or do the orders show that the Court is indeed acting outside its competence because the existing law has been applied arbitrarily to reach an allegedly noble goal?
The principal arguments for an arbitrary act are that the ICJ, in a departure from its previous case law, does not clearly define which obligations under the Genocide Convention are relevant and also remains silent on the question of genocidal intent without giving any explanation. This approach leads, first, to a vague application of the Genocide Convention, as it remains obscure which obligations under the Convention are plausibly relevant. Second, the two possible applications of the Genocide Convention that can be inferred from the orders can no longer be reconciled with the rules of interpretation in international law.Footnote 194
Further arguments for an arbitrary approach are the specific interim measures indicated in all three orders.Footnote 195 The function of Article 41 of the ICJ Statute is to preserve the respective rights claimed by the parties to a case, pending a decision on its merits,Footnote 196 in order to prevent the main proceedings from becoming illusory.Footnote 197 The purpose of provisional measures, therefore, is to order the respondent ‘not to do certain acts which might gravely affect or alienate the subject matter of the dispute’.Footnote 198 Such a preservation of rights can and must be secured by general provisional measures ordering the prevention of genocide or prohibiting it from being concretely committed. However, the indication of specific measures to prevent genocide goes beyond this purpose as, in the main proceedings, the ICJ cannot find a state responsible for insufficient acts of prevention alone. Furthermore, here again, the Court deviated without any elaboration from its previous jurisprudence in genocide cases, in which it indicated only generic measures.Footnote 199
Finally, this finding is reinforced by an overall analysis, which indicates that, with the adoption of these specific measures in three orders in quick secession, the ICJ has given itself a role not contemplated by the Genocide Convention – namely, that of the ultimate genocide prevention body.Footnote 200
5. Conclusion
The orders constitute a tragic moment for international law, as the ICJ seems intent on twisting it. As former Judge ad hoc Barak correctly pointed out: ‘The road taken by the Court is a dangerous one. It weakens the régime of the Genocide Convention by using it (or misusing it) to arbitrate an armed conflict’.Footnote 201 As shown in the previous analysis, there are strong indications that the ICJ acted ultra vires and erroneously applied the Genocide Convention and Article 41 of the ICJ Statute. However, in the absence of an established ultra vires doctrine for the ICJ, it is difficult to make a final assessment of whether and, if so, the extent to which the ICJ has transgressed its competence. It is of utmost importance, therefore, for international lawyers to work on a robust ultra vires doctrine for the ICJ. As Judges Eicke, Koskelo and Wennerström of the European Court of Human Rights held in a dissenting opinion in 2022:Footnote 202
We would like to point out that it is also a part of the rule of law, that courts … should respect the basic limits of their function. This not a matter of undue formalism. It is a matter of fundamental principles.
Acknowledgements
The author would like to thank Carla Monteirro Reuter for her excellent language review and the participants at the 19th Annual Minerva Conference on International Humanitarian Law ‘The Gaza War and International Law: Norms and Institutions’ for their invaluable comments.
Funding statement
The author has not received any funding for this specific research.
Competing interests
The author declares none.
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