News & Commentary

ICJ issues decision on South Africa’s urgent request for additional measures in genocide case against Israel

As most readers are no doubt aware, the International Court of Justice (ICJ) issued an order on January 26—over three weeks ago now—in which they found that South Africa’s genocide claim against Israel is “plausible,” and that Israel must therefore abide by a list of provisional measures.

To quote directly from the order (p. 23):

Israel must, in accordance with its obligations under the Genocide Convention, 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, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group. (…) The Court further considers that Israel must ensure with immediate effect that its military forces do not commit any of the above-described acts.

Furthermore, Israel must, the court said, “prevent and punish the direct and public incitement to commit genocide”; “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance”; and “prevent the destruction and ensure the preservation of evidence related to allegations” of genocide.

On Monday of this week, South Africa filed an urgent request for additional measures, citing the “unprecedented military offensive against Rafah,” recent statements by Israeli Prime Minister Benjamin Netanyahu, and a host of dire warnings from various NGOs, UN agencies, and UN officials.

On Friday, the ICJ issued its decision on that request:

The Court notes that the most recent developments in the Gaza Strip, and in Rafah in particular, ‘would exponentially increase what is already a humanitarian nightmare with untold regional consequences’, as stated by the United Nations Secretary-General (Remarks to the General Assembly on priorities for 2024 (7 Feb. 2024)).

This perilous situation demands immediate and effective implementation of the provisional measures indicated by the Court in its Order of 26 January 2024, which are applicable throughout the Gaza Strip, including in Rafah, and does not demand the indication of additional provisional measures.

The Court emphasizes that the State of Israel remains bound to fully comply with its obligations under the Genocide Convention and with the said Order, including by ensuring the safety and security of the Palestinians in the Gaza Strip.

Besides affirming that Israel’s assault on Rafah has made the situation even more “perilous” and dire, the ICJ seems to be saying, effectively, “our existing order is already sufficient to stop this; now it’s up to the UN Security Council and/or General Assembly to enforce it—and they should, immediately.”

Palestine’s UN ambassador Riyad Mansour said something similar to the UN Security council over two weeks ago:

Partial transcript of his remarks:

The court upheld its responsibility (…) the burden is on Israel to implement the six provisional measures, but YOU are not assuming your responsibility in adopting a resolution to call for a ceasefire…

When are you going to act accordingly, if you are really serious about respecting your obligations of honoring the ruling of the court…?

Every agency of the UN is saying ‘We cannot implement what needs to be implemented without a ceasefire.’ And yet the Security Council, after 115 days of this abhorrent, criminal war against our people in the Gaza Strip, is continuing…

With the risk of genocide now recognized by the ICJ, it would be criminal not to act to put an end to this war of atrocities…

International law professor Francis Boyle, the first-ever lawyer to successfully argue a genocide case at the ICJ, says of Friday’s Decision:

It’s not yes or no. This is a formal Decision by the Court. Apparently no dissents. Very helpful language. RSA [Republic of South Africa] asked for a formal Order for additional provisional measures of protection for the Palestinians. They didn’t get that. But they did get a formal Decision by the Court. It’s important that the ICJ references Rafah and quotes the UN Secretary General saying Israeli actions would “exponentially increase what is already a humanitarian nightmare with untold regional consequences” and referred to Rafah as a “perilous situation” for exponentially increased genocide. Given the proximity to the prior Order, this Decision may be the best RSA could get.

“If the Zionists start driving Palestinians into Egypt,” South Africa can “ask the Court again for new provisional measures of protection,” says Boyle. But regardless, they can now use this ICJ Decision at the UN Security Council “to support the Resolution that Algeria has already circulated there in order to enforce the World Court’s Order of January 26 against Israel.”

Algeria’s draft resolution—and the US’s obstruction thereof—was mentioned by Iranian ambassador Saeid Iravani during a speech at a Security Council meeting earlier this month (February 5). Below are some of the most relevant clips, but the longer version is a must-see.

“It is evident to everyone that the root causes of the current situation in the region are occupation, aggression, and continued genocide and horrific atrocities committed by the Israeli regime and fully supported by the US,” said Iravani.

“The US must end its obstruction of the UN Security Council and allow the adoption of the draft resolution proposed by Algeria, focusing on the ceasefire in Gaza…”

At the same meeting, China’s ambassador Zhang Jun said that, in light of the ICJ order, “the Security Council has no alternative but to take further action—swiftly.”

“There has long been an overwhelming consensus in the international community for an immediate ceasefire,“ he said. “Yet, it’s regrettable that a certain country has persisted in their obstruction with a passive attitude.”

Days earlier, on February 1, Reuters had reported:

Algeria has drafted a U.N. Security Council resolution to demand an immediate humanitarian ceasefire between Israel and Hamas, a move that the United States – a council veto power – opposes because it says it would only benefit the Palestinian militants.

The draft, seen by Reuters on Thursday, also “rejects the forced displacement of the Palestinian civilian population” and again demands all parties comply with international law and calls for full, rapid, safe, and unhindered humanitarian access into and throughout the entire Gaza Strip.

Algeria shared the draft with the 15-member council on Wednesday, diplomats said (…) It was not immediately known when or if Algeria’s draft resolution could be put to a vote. A resolution needs at least nine votes in favor and no vetoes by the United States, Britain, France, China or Russia to be adopted.

This week, Al Jazeera reported that “The majority of the UNSC supports Algeria’s ceasefire draft resolution except the US, which “has ‘red lines’ about the resolution.”

Professor Boyle has advised since at least late January that the US will likely veto any such resolution at the UN Security Council, and that it would therefore fall on the General Assembly under resolution 377A(V)—also known as “Uniting for peace”—to take action. From the UN website:

Adopted in 1950, the [Uniting for peace] resolution resolves that if the Security Council fails to exercise its responsibility to maintain international peace and security, the General Assembly may call an emergency special session. To date, 11 emergency special sessions have been convened.

Regarding other possible courses of action, Boyle says:

Other nations can also sue Israel for genocide regarding Rafah in particular and Gaza in general, request an Emergency Hearing by the Court, and ask for provisional measures of protection specifically with respect to Rafah and the rest of the Palestinians in Gaza. The Organisation of Islamic Cooperation got Gambia to sue Myanmar at the ICJ for genocide and there’s no excuse for the ICO not moving to so protect Palestine and the Palestinians.

He further warns:

Israel is threatening catastrophic genocide against the 1.5 Million Palestinians at Rafah. The Biden administration is saying they don’t want Israel to move into Rafah until certain conditions are met. Their plan may be to claim such conditions are met with these camps they are building in the Sinai Desert, effectively facilitating the ethnic cleansing of the Gazans into the Sinai and thus ushering in Nakba II for the Palestinians.’

South Africa themselves said on Friday that the country “welcomes” to the ICJ’s decision, noting in part that:

The court has accepted: 1. That Israel’s planned incursions in Rafah would render what is already a humanitarian disaster even more perilous. 2. The situation requires compliance with the existing provisional measures. 3. Compliance with the existing provisional measures requires the protection of civilians in Gaza including Rafah.

Others have been less welcoming.

It’s impossible to sum up the range of opinions in a single article (if you have an X account you can read the replies to—and quotes of—the ICJ’s announcement), but as an example, human rights attorney Noura Erakat said:

Profoundly disappointing. [The ICJ] affirms the severity of the harm endured by Palestinians & its promise [to] worsen but fails to add provisional measures. It simply doubles down on its measures ordered on 1/26. The sames ones that Israel has flagrantly violated for 2 weeks.

A common criticism of Friday’s decision is that they should have explicitly called for a “ceasefire”—language that many see as crucially “missing” from the ICJ’s original order.

Human rights lawyer Craig Mokihber, Electronic Intifada co-founder Ali Abunima, Palestine’s own UN ambassador Riyad Mansour, and many others have argued that a call for a “ceasefire” is unnecessary in this context, and that the language of the existing order is actually stronger and more appropriate without it.

Here’s Mokhiber speaking to journalists Aaron Maté and Max Blumenthalon on January 26:

Nonetheless, the following reply from “FabioA” to the ICJ on X, and his ensuing discussion with “KayKay_84,” exemplifies the widespread perception that—as valid as these points may be—the ICJ has left the door open for spin and obfuscation by Israel, the US, and their allies—something the court has (per this view) knowingly failed to rectify with this most recent decision:

FA: It’s true that you [the ICJ] talk about an “exponential increase of a humanitarian nightmare”, but without more explicit measures Israel will twist this new verdict into a claim that they are ok in doing what they are doing. Eventually Israel will be found guilty of genocide, in the meantime, because of this wording, people will keep being killed and destruction will keep being performed.

KK: Exactly. They’re saying absolutely nothing.

FA: They have already said that Israel must do all that it’s within their power to stop killing palestinians, which basically equates to a ceasefire, but without that magic word, they will keep twisting things around, and USA will go along.

KK: Israel will interpret this as SA’s claim being denied because they’re already doing everything to limit loss of life. The ICJ undoubtedly know this and their inability to clarify & assert their request for a ceasefire, means Israel continues. Which implies the ICJ is complicit.

FA: The court said to stop, not to limit.

KK: Please. We all read that and we all interpreted it that way. But we also know how the perpetrators interpreted it, and so does the ICJ. So if they’re STILL not clarifying the call for a ceasefire, then this is deliberate.

FA: I know, I just want to make it well understood that there’s no space for a different good faith interpretation.

KK: It’s not me you have to convince. The point is that the ICJ continues to leave space for misinterpretation, which they KNOW will be misinterpreted because they’ve seen it being misinterpreted. So that means they know what they’re doing, right? Ergo, they’re complicit.

In an email to journalist Sam Husseini, attorney Robert Jereski said: “I don’t know why the ICJ found its existing PMs [provisional measures] sufficient. The Israeli government is clearly flouting them.”

After outlining numerous examples of said flouting—something that both South Africa and Palestine have pointed out at the UN Security Council, and which has been abundantly clear since almost immediately after the order was issued—Jereski asks:

Doesn’t that make clear that what is needed is a provisional measure application that highlights existing refusal by Israel to follow existing measures to protect Palestinian civlians from irreparable harm (including genocide by starvation)? Hard to understand why this was left out of SA’s application.

In an email thread shared with Decensored News with their permission, Husseini put this question to both Professor Boyle and his fellow international law professor John Quigley: Can South Africa compel the court to issue a finding on Israel breaching the order?

Both said that the answer is no, they cannot, but Boyle noted that, per the existing Order, Israel is still required to file a report by February 26 explaining the measures it’s taken ”to give effect to” the order.

From the Court’s summary of the order (p. 7):

…in view of the specific provisional measures it has decided to indicate, the Court considers that Israel must submit a report to the Court on all measures taken to give effect to this Order within one month, as from the date of this Order. The report so provided shall then be communicated to South Africa, which shall be given the opportunity to submit to the Court its comments thereon.

“That will be the next opportunity RSA [Republic of South Africa] has to request further relief from the Court,” says Boyle. “RSA has stated that it is keeping track of all violations of the Order and will respond.”

In the meantime, the UN member states need not wait to take enforcement action.

To once again quote the ICJ’s latest decision: “…the most recent developments in the Gaza Strip, and in Rafah in particular, ‘would exponentially increase what is already a humanitarian nightmare with untold regional consequences’ (…) This perilous situation demands immediate and effective implementation of the provisional measures indicated by the Court in its Order, which are applicable throughout the Gaza Strip, including in Rafah…”

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