By Kyra Wigard
Kyra Wigard is a PhD researcher at the Faculty of Law and Criminology, KU Leuven. Her research focuses on the impact of legal origin on the decision-making of judges at the International Court of Justice (ICJ) and the International Criminal Court (ICC).
On Friday, 26 January, the International Court of Justice (ICJ) indicated six provisional measures in the case South Africa brought against Israel under the Genocide Convention. The highly-anticipated Provisional Measures Order has already been helpfully analyzed in various places (see, for example, here and here). Rather than attempting to add to substantive analyses of the Order, in this post, I will analyze the Order by giving it context from a different perspective: that from the bench. While the voting pattern suggests a very high level of agreement, the individual expressions of judges highlight why the Court prioritized this high level of agreement. The individual opinions shed light on the reasons why judges voted in favour of (or against) the provisional measures, but the opinions also reveal that South Africa will face a high threshold should the case reach the merits stage.
The Provisional Measures Order
During the last days of 2023, South Africa announced it was filing a case against Israel concerning alleged violations of the Genocide Convention by Israel (a Convention to which both states are parties) and was requesting provisional measures. Hearings took place on 11 and 12 January, and only two weeks later, the Court delivered its Order indicating six provisional measures, essentially ordering Israel to take measures to avoid genocide in Gaza against Palestinians. This Order came about at an incredibly fast pace for the Court, and as President Donoghue stated, “The Court is acutely aware of the extent of the human tragedy that is unfolding in the region and is deeply concerned about the continuing loss of life and human suffering.”
While the Court’s Order on provisional measures is not a judgment on the substance of the case, it carries significant symbolic weight.
South Africa hailed the decision as “a decisive victory for the international rule of law” and reminded third states that because of the Court’s ruling, they must “also act independently and immediately to prevent genocide by Israel and to ensure that they are not themselves in violation of the Genocide Convention, including by aiding or assisting in the commission of genocide. This necessarily imposes an obligation on all States to cease funding and facilitating Israel’s military actions, which are plausibly genocidal.”
Prior to the Order, there had been online speculations about how judges would vote — based on the political views stemming from their nationalities (but also after, professor Milena Sterio, for example, stated that “the United States’ judge, Joan Donoghue, voted in favor of all five provisional measures; such a strong vote from an American judge signals further disapproval of the ongoing Israeli military action in Gaza from Israel’s strongest ally”) — and public calls were made to write to judges directly about the case. These factors subjected the Court to increased external pressure. Nevertheless, there was a high level of agreement on the bench in indicating these measures, the votes being 16/1 for measures 3 and 4 and 15/2 for measures 1, 2, 5, and 6. This rebutted some of these sentiments and was very much in line with how this bench usually considers requests for provisional measures. In fact, the smallest “majority” on any provisional measures order of the current bench composition was 13/2, indicating that the bench was actively seeking compromise in order to exert unity wherever possible, at least at the provisional measures stage. Particularly noteworthy in this context is that a permanent judge, Judge Sebutinde, voted against all measures, but the ad hoc judge appointed by Israel did not, rebutting the recurring suggestion in the lead-up to this order that international judges, but in any case, ad hoc judges, take cues from their appointing states.
Individual expressions of Judges
Nevertheless, the voting on the different issues only paints one part of the picture.
Determining whether judges deem it necessary to express their views within the order individually is a crucial aspect of comprehending the entirety of the order.
With regard to the order in question, five out of seventeen judges decided to express themselves individually, namely Judges Xue, Bhandari, Nolte, Sebutinde & ad hoc Barak. Three of them (Judges Xue, Bhandari and Nolte) decided to issue declarations, which in reality appear to be separate opinions (I have written elsewhere about this particular practice at the ICJ in the context of the Ukraine v. Russia Provisional Measures Order in 2022). Judge ad hoc Barak issued a separate opinion, and Judge Sebutinde issued a dissenting opinion. These last two judges were also the ones in the minority vote, with Judge Sebutinde voting against all provisional measures and Judge ad hoc Barak against measures 1, 2, 5 and 6.
In their individual expressions, judges gave different perspectives on the issues in the Order. Judge Nolte asserted in his declaration that the Court need not delve into the right of self-defence, emphasizing that the Genocide Convention does not regulate armed conflicts (para 5). He emphasized that “even though I do not find it plausible that the military operation is being conducted with genocidal intent, I voted in favour of the measures indicated by the Court. To indicate those measures, it is not necessary for the Court to find that the military operation as such implicates plausible rights of Palestinians in the Gaza Strip” (para. 15).
On the contrary, ad hoc JudgeBarak’s separate opinion maintained that the Court had reaffirmed Israel’s right to defend its citizens, leading to the decision not to suspend military operations, but nevertheless endorsed provisional measures despite finding it implausible that Israel is committing genocide. He also included a rarity in individual opinions, namely an “autobiographical remark” reflecting on his own experience during the Holocaust: “Genocide is more than just a word for me; it represents calculated destruction and human behaviour at its very worst. It is the gravest possible accusation and is deeply intertwined with my personal life experience” (para. 6).
Judge Bhandari surpassed the majority ruling by calling for a ceasefire in his declaration, stating that “Going further, though, all participants in the conflict must ensure that all fighting and hostilities come to an immediate halt and that remaining hostages captured on 7 October 2023 are unconditionally released forthwith” (para. 11).
Meanwhile, Judge Xue underscored the gravity of the humanitarian disaster in Gaza in her declaration, emphasizing the threat to the people’s existence and the challenge to fundamental principles of morality. She also emphasized South Africa’s standing in this case, marking a clear shift from her earlier point of view in The Gambia v. Myanmar, where she issued a separate opinion as part of the provisional measures. Judge Xue seemingly shifts her own focus on the matter of standing from the State (in The Gambia v. Myanmar) to the group:
“While the law and practice are still evolving, for a protected group such as the Palestinian people, it is least controversial that the international community has a common interest in its protection. In my view, this is the very type of case where the Court should recognize the legal standing of a State party to the Genocide Convention to institute proceedings on the basis of erga omnes partes to invoke the responsibility of another State party for the breach of its obligations under the Genocide Convention” (para. 4).
In her dissenting opinion, Judge Sebutinde asserts that the situation in Gaza is more of a historical and political dispute and calls for a legal calling for a diplomatic or negotiated settlement rather than a judicial settlement by the Court (para. 4). She argues that South Africa has failed to demonstrate the requisite special intent, leading to the conclusion that the preconditions for indicating Provisional Measures have not been satisfied and that provisional measures are, therefore, not warranted (para. 28). Additionally, she contends that the rights in question have not been sufficiently demonstrated as plausible (para. 23), providing a basis for the argument that Provisional Measures are not warranted in this context.
Given the provisional measures indicated and the voting pattern, it was unsurprising that Judge Sebutinde and Judge ad hoc Barak decided to elaborate on their respective positions individually.
What is more interesting, in this regard, are the declarations issued by the three judges. As I’ve noted before, there appears to be a growing trend of judges issuing declarations when they do want to speak out individually about their own reasoning for voting along (or against in the case of Judges Gevorgian and Xue in the Ukraine v. Russia provisional measures order in 2022), and, at the same time, do not want it to be too much of a distraction from the decision by way of issuing a full separate opinion during the provisional measures stage. One reason for this could be the unique and urgent nature of provisional measures within the Court’s framework.
The next stage
While there is only one dissenting opinion, multiple judges indicated that they voted for the indication of provisional measures despite their doubts on plausibility. In fact, fifteen of the seventeen judges overwhelmingly supported all provisional measures, indicating a broad consensus on the bench on the legal aspects involved. The provisional measures order, therefore, provides immediate relief and a clear decision by the ICJ.
Nevertheless, as the individual opinions indicate, the case itself is far from decided, and the unique nature of provisional measures appears to play a special part during adjudication: while there remain doubts, judges still choose to vote in favor of some form of immediate relief.
This – as judges themselves already indicate in their individual expressions – does not presuppose the course of the case. Indeed, even the declarations of the majority judges suggest that the high threshold of the Genocide Convention will be strictly applied as the case moves to the next stage.
Additionally, one important detail remains to be noted: the bench composition changed on 6 February 2024, with four new judges All of the judges who issued individual opinions will remain on the bench, while four others were replaced by new judges last week. In other words, how the newly composed bench will consider this case in the next stage really remains to be seen.
Israel will likely raise preliminary objections on jurisdiction and admissibility, and the next stage will take time. One important thing to keep an eye on in the coming months is whether, and if so, which states will file declarations to intervene in the case as Nicaragua has already officially requested permission to intervene under Article 62 of the Statute (which will be a difficult case to make and will inevitably slow down the proceedings) and Germany has, already indicated it intends to request permission at the merits stage. In the meantime, Israel’s first report (provisional measure 6) will be due to the court within weeks while South Africa has already requested the Court to indicate additional measures because of Israel’s announced plans for military operations in Rafah. Considering the international political landscape, specific enforcement of this order will be complicated, but the order will be an important legal (and political tool) in the ongoing situation in Gaza. To be continued…
In collaboration with Aman Mehta.
