THE Convention on the Prevention and Punishment of the Crime of Genocide continues to play an important role in international litigation. Recent cases have demonstrated anew states’ willingness to make use of its compromissory clause (entitling State Parties to submit to the Court disputes relating to the interpretation, application or fulfilment of the Convention) and erga omnes partes obligations to protect groups from genocide. However, they also demonstrate that making good on the promise of the Convention – and what it means to enforce fundamental community norms – remains challenging and continues to reflect unequal power dynamics inherent in the international legal system.

In South Africa v Israel, the International Court of Justice ordered provisional measures in a case brought by South Africa against Israel alleging violations of the Genocide Convention in the Gaza Strip. To indicate provisional measures, the rights at stake must be plausible; there must be a link between them and the measures to be adopted; and there must be an urgent need for such measures to prevent a real and imminent risk that irreparable prejudice will be caused before a final decision is reached. In its Order of 26 January, the Court concluded that at least some of the rights claimed by South Africa are plausible – in particular, the right of Palestinians in Gaza to be protected from acts of genocide and the right to seek compliance with the Genocide Convention. The “catastrophic humanitarian situation in the Gaza Strip” demonstrated the urgency and potential for irreparable harm (at [54], [73]). The Court indicated five measures by majority. The first three had the support of all but Judge Sebutinde and Judge Barak (Israel’s judge ad hoc): Israel must not commit and must prevent acts of genocide; it must ensure relevant evidence is preserved; and it must submit a report on measures taken within one month. Two measures had the support of all judges except Vice-President: Israel must “prevent and punish the direct and public incitement to commit genocide” and “enable” the provision of humanitarian assistance.

On 12 February 2024, following Israel’s announcement of a potential military offensive in Rafah, South Africa asked the court to consider indicating further measures, which it may do if a change in the situation justifies modification (Article 76(1), Rules of the Court). In its decision of 16 February, the Court did not specify new measures but it did clarify the original order in two important respects: first, compliance with the order requires Israel to ensure the “safety and security of the Palestinians in the Gaza Strip”, including in Rafah; and second, there must be an “immediate and effective implementation” of the measures contained in the original order, suggesting that the court considered that Israel had not yet done this.

On 6 March 2024, in light of new facts of (inter alia) deaths from starvation in Gaza and manifest non-compliance with the Order of 26 January (for example, to ensure unhindered delivery of humanitarian assistance at scale), South Africa requested further measures and/or modification of the original measures. In its Order of 28 March 2024, the Court considered that “the catastrophic humanitarian situation in the Gaza Strip that existed when it issued its [original order] has deteriorated even further” (at [30]); it noted the “spread of famine and starvation” (at [45]) and the “further risk of irreparable damage” to the rights in dispute. In addition to affirming its Order of 26 January (at [51]), it required Israel (1) to take necessary and effective measures to “ensure the unhindered provision at scale by all concerned of urgently needed [humanitarian assistance]” (emphasis added: “ensure” stands in contrast to the Order of 26 January, which required Israel to “enable” provision of humanitarian assistance) in cooperation with the United Nations (unanimous); (2) to ensure with immediate effect that its military “does not commit acts which constitute a violation of any of the rights of the Palestinians in Gaza … including by preventing, through any action, the delivery of urgently needed humanitarian assistance” (Barak dissenting; the original order already required Israel to ensure its military does not commit acts of genocide; the new order refers specifically to preventing delivery of humanitarian assistance); and (3) to submit a report within one month (Barak dissenting).

The orders have already had political and legal impact beyond the parties directly involved: for example, states and private corporations have referred to them in their decisions to stop selling arms to Israel; Nicaragua and Colombia have intervened in the case, with Ireland announcing that it will follow; and Nicaragua has initiated a case against Germany alleging responsibility for failing to prevent and for contributing to genocide and breaches of international humanitarian law (IHL) in the Gaza Strip. The South Africa case has been referred to in proceedings before the Israeli Supreme Court on humanitarian assistance. Nevertheless, the measures indicated in both orders ultimately reflect obligations that Israel and all states already owe under the Genocide Convention and customary international law, including to prevent genocide and its incitement, to ensure humanitarian aid reaches civilians and not to provide aid or assistance in the commission of genocide and/or breaches of IHL. To date the orders have not been successful in securing any significant improvement on the conditions in the Gaza Strip and the reports filed by Israel with the court pursuant to the orders have not been made public. It is disappointing that the Court did not go further and explicitly order at least a suspension of the Israeli military operation or take the opportunity to elucidate what measures that states other than Israel should be taking to comply with their (erga omnes) obligations (see also the Nicaragua v Germany case discussed below). This is of particular importance, as many states – including the UK – are weighing whether to suspend arms shipments (albeit in the case of the UK by reference to IHL standards rather than the Genocide Convention as such) and there is an increasing gap between widely-reported facts of what is happening on the ground and the UK Government’s current position that there is not a clear risk that weapons will be used in violation of IHL and/or the Genocide Convention.

The court did not explicitly require Israel to cease its military operations, although several judges expressed support for such a measure, including Bhandari (Order of 26 January), and Brant, Charlesworth, Gómez Robledo, Tladi, Yusuf and Xue (Order of 28 March). The court has required parties to take such steps in other cases: in Ukraine v Russia (Allegations of Genocide), it ordered Russia to “immediately suspend [its] military operations” (ICJ Reports, 2022, p. 211 at p. 230 [86]); and in Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand), acting proprio motu, it ordered the parties to withdraw military personnel and refrain from military activity within a provisional demilitarised zone (ICJ Reports 2011, p. 537 at p. 555). These could perhaps be distinguished from the present case: Ukraine did not argue that Russia’s use of force per se constituted genocide and Cambodia v Thailand concerned claims of sovereignty over disputed territory. However, it is also difficult to see how Israel could comply with the measures indicated by the court without ceasing military activity, “precisely because this is the only way to ensure that basic services and humanitarian assistance reach the Palestinian population” (Declaration of Judge Charlesworth, at [7]; cf. Barak, who considered that humanitarian assistance could be achieved through other means and that this explained why the court did not indicate such a measure: Separate Opinion of Judge ad hoc Barak, at [21]).

In its Order of 28 March, the Court makes a brief reference to UN Security Council Resolution 2728 (2024), which “[d]emand[ed] an immediate ceasefire for the month of Ramadan respected by all parties leading to a lasting sustainable ceasefire” (at [37]), but it did not mention – even obiter – the obligation of all states under Article 25 of the UN Charter, which has been interpreted to require states to carry out Security Council’s decisions; or Article 103, which has been interpreted to mean that decisions of the UN Security Council take priority over conflicting rules of international law. The judges may have considered the question of compliance to be outside the court’s jurisdiction, as it goes beyond the Genocide Convention. Yet the court did note matters outside its jurisdiction, albeit obiter, when it explained in its Order of 26 January that Hamas must comply with IHL and when it called in both orders for the “immediate and unconditional release … of the hostages abducted during the attack” on 7 October 2023.

In Nicaragua v Germany, in its Order on Provisional Measures, the court held 15–1 that, “at present, the circumstances are not such as to require the exercise of [the court’s] power…to indicate provisional measures” (Order of 30 April 2024, at [18]–[20]). The decision is notable because the court’s reasoning is so sparse; it did not apply the accepted criteria for provisional measures in the same methodical way that it has adopted in past cases. Instead, after reciting Germany’s submissions on its domestic legal framework for the grant of export licences for war weapons and other military equipment and its claim that there had been a “significant decrease since November 2023 in the value of material for which … licences were granted” (at [18]), the court simply concluded that measures are not required at this time. Although these paragraphs appear to suggest that, in the court’s view, there is no urgent risk of irreparable prejudice to the rights in the case (this was the opinion of some judges in their separate opinions: Sebutinde; Iwasawa), it did not explicitly state this and it did not discuss the other criteria of prima facie jurisdiction (although it did reject Germany’s request for the case be removed from the docket on the basis that there was “no manifest lack of jurisdiction”: at [21]) and plausibility. The discussion among scholars over what exactly the plausibility test requires is partly reflected in the separate judicial opinions. For Judge Iwasawa, the test is concerned with the plausibility of the rights being claimed (Separate Opinion of Judge Iwasawa, at [18]–[20]), although he also notes cases that have “examined the facts and evidence in determining whether the rights asserted by the applicant are plausible” (at [20], emphasis added). While for Judge Tladi, the test included “plausibility that the rights are being or have been infringed”, which, together with jurisdiction, is part of an assessment of whether the case has “some prospect of success on the merits” (Declaration of Judge Tladi, at [8]).

Some judges were critical of the Court’s laconic reasoning, calling it “strange” (Separate Opinion of Vice-President Sebutinde) and “truly unfortunate” (Dissenting Opinion of Judge ad hoc Al-Khasawneh), although Judge Tladi thought the court had adopted a more flexible approach that allowed it “to weigh the different elements in its framework in a more fluid way” (Declaration of Judge Tladi at [9]) and avoid “rigid formalism” (Ibid., at [11]). Although it did not indicate provisional measures, the court was at pains to note that all states – including Germany – have international obligations to “avoid the risk” that the transfer of arms might be used to violate the Genocide Convention and the Geneva Conventions (at [23]–[24]). Article 1 of the Genocide Convention requires states “that are aware, or that should normally have been aware, of the serious risk that acts of genocide would have been committed, to employ all measures reasonably available to them to prevent genocide so far as possible” (at [23]). This articulation of state obligations may prove to be the most significant part of the order. For Judge Tladi, in considering responsibility for breaches of the Genocide Convention or IHL, “including responsibility for not taking appropriate measures in the face of a risk of such breaches, the effect of this Order would be to remove any plausible deniability of knowledge of the risk” (Declaration of Judge Tladi, at [13], emphasis in original). Finally, in his dissenting opinion, Judge ad hoc Al-Khasawneh raised an important point on the fairness of the court’s procedure: “a one-round two-hour pleading is hardly enough for justice to be done and to be seen to be done” (Dissenting Opinion of Judge ad hoc Al-Khasawneh, at [18]).

A week after indicating provisional measures in South Africa v Israel, the Court delivered its decision on preliminary objections in Ukraine v Russia, another important case involving the Genocide Convention, albeit one that involves a state relying on the compromissory clause to obtain an authoritative judgment on the use of force, rather than states relying on standing erga omnes partes to protect a group from genocide. The court concluded that, while it had jurisdiction to determine whether Ukraine has committed genocide in the Donetsk and Luhansk regions (despite the fact that Ukraine brought the case against Russia), it did not have jurisdiction to adjudge Ukraine’s claim of a right not to be subjected to military operations for the purposes of preventing and punishing alleged genocide (voting 12–4; even Ukraine’s ad hoc judge agreed). Given that the court previously found this right to be plausible and, as a result. ordered Russia to “suspend the military operations it commenced” (noted [2022] C.L.J. 217), the key question now is whether this measure has been impliedly revoked, while leaving the others in force. It is somewhat disappointing that the court did not address this issue, on which commentators appear divided. On the one hand, the court enjoys considerable discretion in deciding whether and which provisional measures to order, including the power to order measures proprio motu and to issue measures that go beyond the substantive obligations in dispute. Moreover, in another recent decision, the court stated that “obligations arising from provisional measures bind the parties independently of the factual or legal situation which the provisional measure in question aims to preserve” (Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention of All Forms of Racial Discrimination (Ukraine v Russian Federation), 31 January 2024, at [391]–[392]). If this is right, then Ukraine could potentially seek a declaration from the court at the merits stage that Russia is in breach of the provisional measures order by failing to suspend or cease its military operation. On the other hand, if the court does not have jurisdiction over Ukraine’s claim to certain rights, then there is arguably no longer any legal basis for the measures issued to protect them. In other words, the Court’s decision on jurisdiction is essentially, albeit implicitly, its final determination of this issue.

South Africa v Israel, Nicaragua v Germany and Ukraine v Russia – like The Gambia v Myanmar, another recent Genocide Convention case – are all remarkable for involving the wider international community, either through erga omnes partes obligations and standing or third-party intervention. Thirty-two states intervened in support of Ukraine’s case at the provisional measures stage (with more signalling a desire to intervene at the merits stage), while Colombia, Libya and Nicaragua are seeking to intervene in the South Africa case. Intervenors have typically justified and explained their intervention by reference to the erga omnes nature of the obligations and the common interest of all states parties in ensuring these obligations are upheld. Yet, when taken together, this emphasis on community values and obligations is not embraced consistently. In a joint intervention in the Myanmar case, Canada, Denmark, France, Germany, the Netherlands and the UK explained that they have a “common interest in the accomplishment of the high purposes of the Convention” – but some of these states have publicly opposed the South Africa litigation. In the Nicaragua v Germany case, counsel for Germany argued during the oral hearings for provisional measures that “Nicaragua, as a non-party to the conflict in Gaza, has no standing to enforce Germany’s obligations under common Article 1 [to the Geneva Conventions] with regard to a third state like Israel”. It is somewhat specious to think of any state as a “third state” as such obligations bind all states parties (or all states in the case of erga omnes obligations).

The court currently finds itself deciding cases of huge political and humanitarian significance. The cases are testing what it means for international law to recognise erga omnes obligations in what is still a fundamentally bilateral system. The relatively low threshold for provisional measures makes them a potentially powerful tool for enforcing erga omnes norms: indication of provisional measures entails significant reputational consequences and may help galvanise other actors into complying with their obligations and withdrawing support or limiting weapon supplies. Yet significant questions about what such obligations require of states remain and, as cases proceed, the jurisdictional threshold becomes more demanding and the scope for the court to make substantive pronouncements with meaningful effects is thereby reduced. Despite this, as the cases continue – and new ones emerge – there is the promise of not only developing the law on the Genocide Convention but also of putting into practice what it means to have obligations that are fundamental, non-derogable and owed by and to all members of the international community.