South Africa’s request for an interim measure by the international court of justice to prevent Israel from committing acts of potential genocide – primarily by calling for a halt to combat operations – has suddenly taken on an urgency and relevance that seemed implausible a fortnight ago.
Crack legal teams are being assembled, countries are issuing statements in support of South Africa, and Israel has said it will defend itself in court, reversing a decades-old policy of boycotting the UN’s top court and its 15 elected judges.
The first hearing in The Hague is set for 11 and 12 January. If precedent is any guide, it is possible the ICJ will issue a provisional ruling within weeks, and certainly while the Israeli attacks on Gaza are likely to be still under way.
The wheels of global justice – at least interim justice – do not always grind slowly.
South Africa’s request for a provisional ruling is in line with a broader trend at the ICJ for such rulings. Parties have been seeking – and obtaining – provisional measures with increasing frequency: in the last decade the court has indicated provisional measures in 11 cases, compared with 10 in the first 50 years of the court’s existence (1945-1995).
Like interim injunctions issued by national courts, ICJ provisional measures seek to freeze the legal situation between parties to ensure the integrity of a future final judgment. For a while doubt persisted as to whether these measures were deemed binding by the ICJ. But the court put those doubts to rest in the LaGrand judgment in June 2001, where it held that the rulings were binding, given the court’s “basic function of judicial settlement of international disputes”.
They are intended to be binding, but are they in practice?
One assessment prepared by a US lawyer, Mattei Alexianu, suggested that the court’s measures were complied with by the state parties in only 50% of cases, while in some – normally the most high-profile recent cases, including Ukraine v Russia in 2022, the Gambia’s claims of genocide against Myanmar in 2020, Nagorno-Karabakh, and US sanctions on Iran – the losing state party simply defied the court.
Not surprisingly, the more intrusive an adverse ruling to a country’s sense of national sovereignty, the less likely they were to comply.
But putting aside whether Israel would comply with any ICJ order to change its military tactics and desist from any act ruled as genocide, the reputational damage to Israel of such a ruling would be substantial, and at minimum may produce a modification of its military campaign. The very fact that Israel has chosen to defend itself at the ICJ – a UN sponsored body – and is a signatory to the genocide convention makes it harder for it to brush aside an adverse finding. [Continue reading…]