Will the International Court of Justice (ICJ) order Israel to cease or curtail its military operations in Gaza as a provisional measure, as South Africa requested in its proceedings against Israel under the Genocide Convention? That is the “big question,” as Professor Mike Becker put it. And Israeli officials are reportedly concerned about the “real danger that the court will issue an injunction calling on Israel to halt its fire.”
This post argues that the ICJ’s authority to indicate provisional measures is constrained by the right of self-defense recognized in Article 51 of the UN Charter. Therefore, on the (plausible) assumption that Israel’s war against Hamas is an act of self-defense with the meaning of Article 51, the ICJ cannot order provisional measures that would impair the lawful exercise of that right.
South Africa v. Israel
At the end of December last year, South Africa instituted proceedings in the ICJ against Israel, accusing it of violating the Genocide Convention. Israel has announced that it will defend itself in the proceedings.
Importantly, South Africa also asked the ICJ to order a slew of “provisional measures” before the case is adjudicated, including ordering Israel to “immediately suspend its military operations in and against Gaza.” That is a bold request, but there is a recent precedent: In Ukraine v. Russia (2022), also under the Genocide Convention, the ICJ indicated provisional measures that ordered Russia to “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.”
So South Africa’s request is not off the wall, as far as ICJ precedent goes.
This post does not address whether South Africa’s claims of genocide have any merit, or even whether the applicable test for provisional measures would be met in this case.
Instead, the post highlights an important and overlooked constraint on the ICJ’s authority to indicate provisional measures: the right to self-defense recognized in Article 51 of the UN Charter. The ICJ does not have the power to indicate provisional measures that deny Israel the ability to lawfully defend itself against an armed attack.
The ICJ Cannot Order Provisional Measures that Impair a State’s Right to Self-Defense
The ICJ’s authority to impose provisional measures derives from Article 41 of the ICJ Statute: “The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.” This language, as Professor J.G. Merrills observed, leaves “unanswered questions concerning both the basis of interim measures and the scope and exercise of the power.”
What is clear, though, is that the ICJ Statute is part of the UN Charter. Article 92 of the Charter provides (emphasis added): “The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which … forms an integral part of the present Charter.” The ICJ relied on this integration in the LaGrand Case (2001).
In turn, Article 51 of the Charter provides (emphasis added): “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
Putting these provisions together, it follows that the ICJ’s authority to indicate provisional measures cannot impair the right of self-defense recognized in Article 51. The critical point is that the Court’s authority to indicate provisional measures does not arise from the Genocide Convention, even though that would be the jurisdictional basis for this case. Indeed, the Court will usually indicate provisional measures without definitively establishing jurisdiction—it need only appear prima facie that “jurisdiction could be founded.” (Gambia v. Myanmar (2020).) And this determination, grounded in Article 41 of the ICJ Statute, “in no way prejudges the question of jurisdiction”—which is “entirely different from the special provisions of Article 41.” (Anglo-Iranian Oil Company Case (1952).) Article 41 allows the Court to indicate provisional measures even if it will ultimately conclude that it lacks jurisdiction, as in fact happened in Anglo-Iranian Oil Co.
Accordingly, the ICJ’s power to indicate provisional measures is a creature of the ICJ Statute, “an integral part” of the UN Charter. The Charter’s carve-out for self-defense actions thus constrains the provisional measures available to the Court. To borrow the language of Judge Tomka’s separate opinion in Congo v. Uganda (2005), “a lawful exercise of the right to self-defence cannot constitute a breach of any relevant article of the United Nations Charter.” That principle applies to the provisional measures authorized by Article 41 of the ICJ Statute.
In a sense, the argument made here resembles the question (discussed by Professor Christine Gray, at 132) whether the Security Council’s powers are “limited by the requirement that such measures do not undermine the right of self-defence under Article 51.” But there is also an important difference. By qualifying the right as existing “until the Security Council has taken measures necessary to maintain international peace and security,” Article 51 contemplates that the right of self-defense is temporary and subordinate to the Security Council’s actions. The Court, acting under the ICJ Statute’s authority to indicate provisional measures, does not enjoy the same prerogative to quash a State’s right to lawful self-defense against an armed attack.
The ICJ Should Assume that Article 51 Applies Without Definitively Resolving the Question
The ICJ’s power to indicate provisional measures implies the power to determine whether a particular requested measure is authorized by the ICJ Statute. Given the breadth of South Africa’s requested provisional measures (immediately suspending military operations in Gaza), the ICJ could not grant that request without considering whether such measures are consistent with Article 51 of the Charter. Therefore, if the Court would otherwise be inclined to grant South Africa’s request, it must determine whether Article 51 applies and take account of any limitations that follow from that determination.
That being said, the ICJ Statute compels the Court to determine whether the “circumstances so require” before indicating provisional measures. In considering the totality of the circumstances, the Court should factor in whether it is prudent to pass upon a fraught and very important legal question in a rushed manner at this preliminary stage of the proceedings. As discussed below, there are many doctrinal puzzles and unresolved factual questions that bear upon whether Israel’s war against Hamas in Gaza is properly characterized as invoking the right of self-defense under Article 51. It would be injudicious to veer into that thicket now, especially in a case where those issues will not even be presented at the merits.
The better course, I suggest, would be to assume—without definitively resolving—for purposes of this preliminary stage that Article 51 applies, and to fashion any provisional measures accordingly. Even the substantial possibility that Article 51 applies is among the “circumstances” that counsel against a sweeping provisional measure like the one indicated in Ukraine v. Russia.
In fact, if Israel chooses to advance an argument along the lines of the one in this post, it is unlikely to ask the Court to actually adjudicate whether Article 51 applies. Israel will probably not want to risk a negative answer or inviting the Court to analyze whether its operations are a lawful exercise of that right. And, in any event, that issue is unrelated to the merits of the case. But Israel may well frame the Article 51 question as a serious complication to be considered among all the relevant “circumstances” in determining whether and which provisional measures are “require[d].” In my view, the Court should be very wary of brushing Article 51 aside.
Does the War Against Hamas in Gaza Implicate Israel’s Right of Self-Defense?
The assumption that Israel’s war against Hamas in Gaza is governed by Article 51 is debatable— and vigorously debated. (For recent illuminating discussions surrounding this question, see the contributions by Professors Schmitt, Milanovic, Tsagourias, Buchan, and Gill.). The one criterion actually mentioned in the text of Article 51—“an armed attack”—is surely met. Indeed, South Africa’s application to the ICJ says as much, acknowledging that Israel’s current military campaign was “launched in response to an attack in Israel on 7 October 2023 … by two Palestinian armed groups.” And numerous States have explicitly recognized Israel’s right of self-defense in response to the October 7, 2023 attacks (see sources collected here).
But other States and scholars do not believe that Israel’s war against Hamas in Gaza falls within the Article 51 framework. Some do not accept that Article 51 applies to non-state actors like Hamas (see, e.g., the discussion here) or that an occupier can invoke Article 51 in the occupied territory (and they consider Gaza to have been occupied by Israel on October 7). In a 2004 advisory opinion, the ICJ itself denied that Article 51 was relevant to Israel’s construction of a wall in the West Bank meant to stop terror attacks. The Court reasoned that “Israel does not claim that the attacks against it are imputable to a foreign State”; that “Israel exercises control in the Occupied Palestinian Territory”; and that “the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory.”
Even so, the ICJ could take a different approach in this situation, as Professor Terry Gill suggests. Much has changed since 2004, including Israel’s withdrawal from Gaza in 2005 and years of Hamas strengthening its governance and military capabilities in the territory. Those intervening events cast doubt on the proposition that Israel was legally occupying Gaza on October 7 (or afterward), as Professor Michael Meier recently discussed.
And the ICJ may well conclude that Article 51 can be invoked against a non-state actor like Hamas—as argued in the separate opinions of Judges Kooijmans and Simma in Congo v. Uganda (2005), where the Court itself left the question open. Alternatively, the ICJ could conclude that the October 7 attacks are attributable to a State—either the State of Palestine, which is recognized by South Africa and many other countries (though not by Israel), or perhaps Iran, should the evidence establish Iran’s substantial involvement in the attacks (a question analyzed by Professor Jenny Maddocks).
It is plausible that, one way or another, the ICJ will conclude that Israel’s self-defense is implicated—or, as discussed above, that the Court will assume that conclusion at this preliminary stage without definitively resolving it. On that assumption, my contention is that Article 51 prevents the Court from indicating any provisional measures under the ICJ Statute that would impair Israel’s right to lawfully wage a defensive war.
What Provisional Measures Could the ICJ Order?
If the analysis above is correct, the ICJ would likely not have the power to order Israel to cease or substantially curtail its military operations in Gaza as a provisional measure, to the extent that such an order would impair Israel’s Article 51 right to lawfully defend itself.
But Article 51 only goes so far. There are limits to self-defense, including the prohibition of genocide and the strictures of international humanitarian law (IHL). Thus, it would not offend Article 51 for the Court to accept South Africa’s request to indicate provisional measures requiring Israel to comply with its obligations under the Genocide Convention, which Israel is already bound to do and is unlikely to argue otherwise. (Although the issue is beyond the scope of this post, I presume that a State’s obligations under the Genocide Convention either do not conflict with its right to self-defense or, in the rare event of a true conflict, the Genocide Convention would control.)
Similarly, the Court could generally order Israel to ensure that its self-defense actions comply with its obligations under IHL and other applicable legal rules.
But, if the ICJ is not content with ordering Israel generally to comply with its legal obligations, and is instead inclined to issue a specific order to halt or limit its military operations in Gaza (à la Ukraine v. Russia), it must add an appropriate caveat: “except as necessary to lawfully exercise the right of self-defence recognized in Article 51 of the Charter.”
The Court could also grant South Africa’s request to order Israel not to take any action that “might aggravate or extend the dispute before the Court or make it more difficult to resolve.” Likewise, the Court could presumably order Israel generally to “take effective measures to prevent the destruction and ensure the preservation of evidence,” as South Africa requests. Those requests track the measures indicated by the ICJ in The Gambia v. Myanmar (2020).
Reaching further, however, South Africa also asks the ICJ to order Israel not to “deny or otherwise restrict access by fact-finding missions, international mandates and other bodies to Gaza to assist in ensuring the preservation and retention of said evidence.” Israel will surely object to this request for various reasons.
From the self-defense angle, Israel may plausibly argue that allowing unrestricted access of “fact-finding missions” and unnamed international “bodies” into Gaza would interfere with its legitimate military objectives (e.g., attacking Hamas combatants and rescuing hostages) and thus impermissibly frustrate its right to self-defense—especially when some of those entities could be used by Hamas to undermine Israel’s war aims. But, if it makes that claim, Israel may need to put forward some evidence to substantiate that concern.
Conclusion
If the ICJ determines that provisional measures are appropriate in this case, it should carefully consider how to narrowly tailor those measures so that they are consistent with Israel’s inherent right to self-defense. Because of the self-defense context here, a far-reaching and unqualified order to halt or scale back combat operations in the style of Ukraine v. Russia would overstep the bounds set by the UN Charter and ICJ Statute.
If the Court is inclined to go beyond general provisional measures requiring Israel to comply with its legal obligations, and instead order Israel to refrain from specific combat activities, it should add the caveat: “except as necessary to lawfully exercise the right of self-defence recognized in Article 51 of the Charter.”
Why the ICJ Cannot Order Israel to Stop the War in Gaza as a Provisional Measure
Written by Jesse LempelWill the International Court of Justice (ICJ) order Israel to cease or curtail its military operations in Gaza as a provisional measure, as South Africa requested in its proceedings against Israel under the Genocide Convention? That is the “big question,” as Professor Mike Becker put it. And Israeli officials are reportedly concerned about the “real danger that the court will issue an injunction calling on Israel to halt its fire.”
This post argues that the ICJ’s authority to indicate provisional measures is constrained by the right of self-defense recognized in Article 51 of the UN Charter. Therefore, on the (plausible) assumption that Israel’s war against Hamas is an act of self-defense with the meaning of Article 51, the ICJ cannot order provisional measures that would impair the lawful exercise of that right.
South Africa v. Israel
At the end of December last year, South Africa instituted proceedings in the ICJ against Israel, accusing it of violating the Genocide Convention. Israel has announced that it will defend itself in the proceedings.
Importantly, South Africa also asked the ICJ to order a slew of “provisional measures” before the case is adjudicated, including ordering Israel to “immediately suspend its military operations in and against Gaza.” That is a bold request, but there is a recent precedent: In Ukraine v. Russia (2022), also under the Genocide Convention, the ICJ indicated provisional measures that ordered Russia to “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.”
So South Africa’s request is not off the wall, as far as ICJ precedent goes.
This post does not address whether South Africa’s claims of genocide have any merit, or even whether the applicable test for provisional measures would be met in this case.
Instead, the post highlights an important and overlooked constraint on the ICJ’s authority to indicate provisional measures: the right to self-defense recognized in Article 51 of the UN Charter. The ICJ does not have the power to indicate provisional measures that deny Israel the ability to lawfully defend itself against an armed attack.
The ICJ Cannot Order Provisional Measures that Impair a State’s Right to Self-Defense
The ICJ’s authority to impose provisional measures derives from Article 41 of the ICJ Statute: “The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.” This language, as Professor J.G. Merrills observed, leaves “unanswered questions concerning both the basis of interim measures and the scope and exercise of the power.”
What is clear, though, is that the ICJ Statute is part of the UN Charter. Article 92 of the Charter provides (emphasis added): “The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which … forms an integral part of the present Charter.” The ICJ relied on this integration in the LaGrand Case (2001).
In turn, Article 51 of the Charter provides (emphasis added): “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
Putting these provisions together, it follows that the ICJ’s authority to indicate provisional measures cannot impair the right of self-defense recognized in Article 51. The critical point is that the Court’s authority to indicate provisional measures does not arise from the Genocide Convention, even though that would be the jurisdictional basis for this case. Indeed, the Court will usually indicate provisional measures without definitively establishing jurisdiction—it need only appear prima facie that “jurisdiction could be founded.” (Gambia v. Myanmar (2020).) And this determination, grounded in Article 41 of the ICJ Statute, “in no way prejudges the question of jurisdiction”—which is “entirely different from the special provisions of Article 41.” (Anglo-Iranian Oil Company Case (1952).) Article 41 allows the Court to indicate provisional measures even if it will ultimately conclude that it lacks jurisdiction, as in fact happened in Anglo-Iranian Oil Co.
Accordingly, the ICJ’s power to indicate provisional measures is a creature of the ICJ Statute, “an integral part” of the UN Charter. The Charter’s carve-out for self-defense actions thus constrains the provisional measures available to the Court. To borrow the language of Judge Tomka’s separate opinion in Congo v. Uganda (2005), “a lawful exercise of the right to self-defence cannot constitute a breach of any relevant article of the United Nations Charter.” That principle applies to the provisional measures authorized by Article 41 of the ICJ Statute.
In a sense, the argument made here resembles the question (discussed by Professor Christine Gray, at 132) whether the Security Council’s powers are “limited by the requirement that such measures do not undermine the right of self-defence under Article 51.” But there is also an important difference. By qualifying the right as existing “until the Security Council has taken measures necessary to maintain international peace and security,” Article 51 contemplates that the right of self-defense is temporary and subordinate to the Security Council’s actions. The Court, acting under the ICJ Statute’s authority to indicate provisional measures, does not enjoy the same prerogative to quash a State’s right to lawful self-defense against an armed attack.
The ICJ Should Assume that Article 51 Applies Without Definitively Resolving the Question
The ICJ’s power to indicate provisional measures implies the power to determine whether a particular requested measure is authorized by the ICJ Statute. Given the breadth of South Africa’s requested provisional measures (immediately suspending military operations in Gaza), the ICJ could not grant that request without considering whether such measures are consistent with Article 51 of the Charter. Therefore, if the Court would otherwise be inclined to grant South Africa’s request, it must determine whether Article 51 applies and take account of any limitations that follow from that determination.
That being said, the ICJ Statute compels the Court to determine whether the “circumstances so require” before indicating provisional measures. In considering the totality of the circumstances, the Court should factor in whether it is prudent to pass upon a fraught and very important legal question in a rushed manner at this preliminary stage of the proceedings. As discussed below, there are many doctrinal puzzles and unresolved factual questions that bear upon whether Israel’s war against Hamas in Gaza is properly characterized as invoking the right of self-defense under Article 51. It would be injudicious to veer into that thicket now, especially in a case where those issues will not even be presented at the merits.
The better course, I suggest, would be to assume—without definitively resolving—for purposes of this preliminary stage that Article 51 applies, and to fashion any provisional measures accordingly. Even the substantial possibility that Article 51 applies is among the “circumstances” that counsel against a sweeping provisional measure like the one indicated in Ukraine v. Russia.
In fact, if Israel chooses to advance an argument along the lines of the one in this post, it is unlikely to ask the Court to actually adjudicate whether Article 51 applies. Israel will probably not want to risk a negative answer or inviting the Court to analyze whether its operations are a lawful exercise of that right. And, in any event, that issue is unrelated to the merits of the case. But Israel may well frame the Article 51 question as a serious complication to be considered among all the relevant “circumstances” in determining whether and which provisional measures are “require[d].” In my view, the Court should be very wary of brushing Article 51 aside.
Does the War Against Hamas in Gaza Implicate Israel’s Right of Self-Defense?
The assumption that Israel’s war against Hamas in Gaza is governed by Article 51 is debatable— and vigorously debated. (For recent illuminating discussions surrounding this question, see the contributions by Professors Schmitt, Milanovic, Tsagourias, Buchan, and Gill.). The one criterion actually mentioned in the text of Article 51—“an armed attack”—is surely met. Indeed, South Africa’s application to the ICJ says as much, acknowledging that Israel’s current military campaign was “launched in response to an attack in Israel on 7 October 2023 … by two Palestinian armed groups.” And numerous States have explicitly recognized Israel’s right of self-defense in response to the October 7, 2023 attacks (see sources collected here).
But other States and scholars do not believe that Israel’s war against Hamas in Gaza falls within the Article 51 framework. Some do not accept that Article 51 applies to non-state actors like Hamas (see, e.g., the discussion here) or that an occupier can invoke Article 51 in the occupied territory (and they consider Gaza to have been occupied by Israel on October 7). In a 2004 advisory opinion, the ICJ itself denied that Article 51 was relevant to Israel’s construction of a wall in the West Bank meant to stop terror attacks. The Court reasoned that “Israel does not claim that the attacks against it are imputable to a foreign State”; that “Israel exercises control in the Occupied Palestinian Territory”; and that “the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory.”
Even so, the ICJ could take a different approach in this situation, as Professor Terry Gill suggests. Much has changed since 2004, including Israel’s withdrawal from Gaza in 2005 and years of Hamas strengthening its governance and military capabilities in the territory. Those intervening events cast doubt on the proposition that Israel was legally occupying Gaza on October 7 (or afterward), as Professor Michael Meier recently discussed.
And the ICJ may well conclude that Article 51 can be invoked against a non-state actor like Hamas—as argued in the separate opinions of Judges Kooijmans and Simma in Congo v. Uganda (2005), where the Court itself left the question open. Alternatively, the ICJ could conclude that the October 7 attacks are attributable to a State—either the State of Palestine, which is recognized by South Africa and many other countries (though not by Israel), or perhaps Iran, should the evidence establish Iran’s substantial involvement in the attacks (a question analyzed by Professor Jenny Maddocks).
It is plausible that, one way or another, the ICJ will conclude that Israel’s self-defense is implicated—or, as discussed above, that the Court will assume that conclusion at this preliminary stage without definitively resolving it. On that assumption, my contention is that Article 51 prevents the Court from indicating any provisional measures under the ICJ Statute that would impair Israel’s right to lawfully wage a defensive war.
What Provisional Measures Could the ICJ Order?
If the analysis above is correct, the ICJ would likely not have the power to order Israel to cease or substantially curtail its military operations in Gaza as a provisional measure, to the extent that such an order would impair Israel’s Article 51 right to lawfully defend itself.
But Article 51 only goes so far. There are limits to self-defense, including the prohibition of genocide and the strictures of international humanitarian law (IHL). Thus, it would not offend Article 51 for the Court to accept South Africa’s request to indicate provisional measures requiring Israel to comply with its obligations under the Genocide Convention, which Israel is already bound to do and is unlikely to argue otherwise. (Although the issue is beyond the scope of this post, I presume that a State’s obligations under the Genocide Convention either do not conflict with its right to self-defense or, in the rare event of a true conflict, the Genocide Convention would control.)
Similarly, the Court could generally order Israel to ensure that its self-defense actions comply with its obligations under IHL and other applicable legal rules.
But, if the ICJ is not content with ordering Israel generally to comply with its legal obligations, and is instead inclined to issue a specific order to halt or limit its military operations in Gaza (à la Ukraine v. Russia), it must add an appropriate caveat: “except as necessary to lawfully exercise the right of self-defence recognized in Article 51 of the Charter.”
The Court could also grant South Africa’s request to order Israel not to take any action that “might aggravate or extend the dispute before the Court or make it more difficult to resolve.” Likewise, the Court could presumably order Israel generally to “take effective measures to prevent the destruction and ensure the preservation of evidence,” as South Africa requests. Those requests track the measures indicated by the ICJ in The Gambia v. Myanmar (2020).
Reaching further, however, South Africa also asks the ICJ to order Israel not to “deny or otherwise restrict access by fact-finding missions, international mandates and other bodies to Gaza to assist in ensuring the preservation and retention of said evidence.” Israel will surely object to this request for various reasons.
From the self-defense angle, Israel may plausibly argue that allowing unrestricted access of “fact-finding missions” and unnamed international “bodies” into Gaza would interfere with its legitimate military objectives (e.g., attacking Hamas combatants and rescuing hostages) and thus impermissibly frustrate its right to self-defense—especially when some of those entities could be used by Hamas to undermine Israel’s war aims. But, if it makes that claim, Israel may need to put forward some evidence to substantiate that concern.
Conclusion
If the ICJ determines that provisional measures are appropriate in this case, it should carefully consider how to narrowly tailor those measures so that they are consistent with Israel’s inherent right to self-defense. Because of the self-defense context here, a far-reaching and unqualified order to halt or scale back combat operations in the style of Ukraine v. Russia would overstep the bounds set by the UN Charter and ICJ Statute.
If the Court is inclined to go beyond general provisional measures requiring Israel to comply with its legal obligations, and instead order Israel to refrain from specific combat activities, it should add the caveat: “except as necessary to lawfully exercise the right of self-defence recognized in Article 51 of the Charter.”
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Marko Milanovic says
January 8, 2024
Dear Jesse,
Thank you for your post. I can't say that I'm persuaded by it, but it does have a certain formal plausibility, to echo the ICJ's terminology. Could I ask you two specific questions?
First, doesn't your argument apply in exactly the same way to the provisional measures order in Ukraine v. Russia? There Russia too relied on self-defence under Article 51 of the Charter to justify its invasion of Ukraine. Maybe Israel's arguments are on the law and the facts more plausible than Russia's in that case, but they are nonetheless of the same kind and present the same difficulties. So are in your view the two cases nonetheless distinguishable, and if so how exactly, or are you rather of the view that the UvR provisional measures order to stop the use of force entirely also exceeded the Court's jurisdiction?
Second, if your argument is taken as correct, shouldn't this objection to the Court's jurisdiction to issue a specific type of provisional measures require a formal objection by Israel? And wouldn't making this objection require an incidental conferral upon the Court of the jurisdiction to decide the merits of the objection? To give a hypothetical example, if there's a dispute between states A and B and jurisdiction is established pursuant to a compromissory clause under a treaty, and B then defends itself by invoking self-defence as a circumstance precluding wrongfulness, then surely in doing so B confers upon the ICJ the jurisdiction to decide the merits of its invocation of self-defence, even if this would otherwise be outside the compromissory clause? I appreciate that the context here is somewhat different, in that the objection relates to the Court's jurisdiction to indicate PMs, but the Court has Kompetenz-Kompetenz and if Israel chooses to make this objection, then surely it would be consenting to the Court's determination of the objection?
Obviously Israel is not in any way compelled to make this objection, and thus give the ICJ an opportunity to rule on its claim of self-defence (to the level of plausibility or otherwise). But if Israel expressly chooses NOT to make this objection, then why should the Court have to take these considerations into account? This seems to me to be the you can't have your cake and eat it type of situation.
Anyway, many thanks again for your post, and of course we shall see this week whether Israel makes this type of the argument before the Court.
Marko
van Steenberghe Raphaël says
January 8, 2024
Many thanks for this post.
In the conflict between Russia and Ukraine, Russia also invoked the right of (collective) self-defence to justify its military operations in Ukraine. This is actually the main legal argument that Russia invoked to justify its attacks on the Ukrainian territory under jus ad bellum. As required by the UN Charter, it sent an official letter to the UN, expressly referring to that right (see S/2022/154, 24 February 2002).
Yet, this did not prevent the ICJ from ordering Russia to cease its military operations in the Ukraine v. Russia case. Why would it be different here? Thanks in advance for your explanations.
Alexander Menashe says
January 8, 2024
An interesting article. In answer to the two comments regarding Russia's claims before the ICJ, I would suggest that the case is not complicated by the issue of provisional measures in the Ukraine Vs Russia hearing.
International law hangs on there being a clear distinction between self-defence and aggression, the former being an inherrent right of all nations and the latter a crime under internationl law. Yet this must not be merely a theoretical distinction but one which it must (at least in most cases) be possible to make in concrete reality.
Russia (like South Africa in this case) can make vexatious claims before the court, but much of international law would be rendered meaningless were the court (or anyone else) unable to distinguish between aggression and self-defence.
To put it in laymans terms: Russia's claim of self-defence was a lie.
OLIVIER CAUVIN says
January 8, 2024
Thank you for this explanation.
According to me there is no incertainty around the ruling.
As most states represented in the court are backing up Israël, South Africa will lose the case.
The real subject is more on the consequence of such ruling in the coming years even centuries.
This is especially true if it self defense is used to dismiss the case.
Andrea Lorenzo Capussela says
January 8, 2024
One question: let's assume, as you say, that 'It is plausible that, one way or another, the ICJ will conclude that Israel’s self-defense is implicated'; if so, can it be argued that that right has been exhausted, as it were? I refer to proportionality and to the fact that Gaza is effectively defenceless: self-defence certainly applied on 9th October, assuming your argument stands, but does it still apply now? Thank you
Marko Milanovic says
January 8, 2024
A reminder to all commenters that comments without the author's full first name and last name will not be published.
Jesse Lempel says
January 8, 2024
Professors Milanovic and van Steenberghe: Thank you very much for your thoughtful comments. Both of you asked whether my argument would apply to the provisional measures indicated in Ukraine v. Russia. The simple answer is that Russia did not make any such argument to the ICJ. Russia did invoke Article 51 and customary self-defense as a general justification for its invasion, and it argued that the Court lacked jurisdiction under the Genocide Convention (see https://www.icj-cij.org/node/106132). But it never argued that the available provisional measures were limited by Article 51. (Rather, Russia denied that "issues related to Article 51" could be within "the Court's jurisdiction" in that case at all.) So the Court had no occasion to consider any argument along the lines of the one in this post, and I do not think that order should be read as implicitly deciding this issue. Therefore, Ukraine v. Russia does not seem to me a precedent for this point one way or the other.
It is an interesting question what the Court could or should have done had Russia made such an argument. Given the facts in that case -- particularly, a collective self-defense argument on behalf of entities with highly dubious claims to statehood -- I think the Court could reasonably have decided that there was no sufficiently plausible Article 51 argument to prevent the Court from determining that circumstances require ordering an immediate suspension of military activities. I do not think that a State merely uttering the magic words "Article 51" is sufficient. But, as I suggest in my post, if a State makes a substantial argument that Article 51 is implicated, then the Court should factor that in when determining whether the "circumstances so require" indicating particular provisional measures under Art. 41 of the ICJ Statute. In other words, I think it would likely depend on whether the Court was confronted with a substantial Article 51 argument. And, in my view, the cases of Russia and Israel are quite different in that respect.
This brings me to Marko's second question, which I touched upon in the post. I agree with you that the ICJ should not address this issue unless Israel offers such an argument, and that Israel raising an Article 51 argument would risk inviting the Court to pronounce on whether Article 51 applies (and perhaps even whether self-defense is being lawfully exercised). As I suggest in the post, though, I think there may be a middle-ground approach: Israel could argue that the substantial possibility or probability that Article 51 applies is an important "circumstance" that the Court should take into account when determining whether particular measures should be indicated. Perhaps even that indirect objection would amount to consent to fully adjudicate the Article 51 question -- though I doubt it. But even if so, I think it would be unwise for the Court to definitively decide the Article 51 issues lurking in the background here, especially in this procedural posture and in a rushed timeframe. That's why I suggest that the Court should assume without deciding that Article 51 applies and tailor any provisional measures accordingly.
Stefan McClean says
January 8, 2024
Dear Jesse,
Thank you for your post, I would like to firstly agree with Marko's comments but will also add my 2 cents.
While there is some practice suggesting that Article 51 of the Charter may extend to repel an armed attack from a non-State actor emanating from the territory of another State – Palestine is of course in view of Israel – not a State. As a starting point, Article 2(4) of the Charter prohibits the use of force between States their international relations. Israel is most welcome to argue that Article 51 of the Charter applied to repel an armed attack (remember also necessity and proportionality), but it truly would be a surprise were Israel to implicitly recognise Palestinian Statehood.
You mentioned correctly that Israel refutes Gaza’s status as occupied territory within the framework of the law on occupation. However, this is a separate issue from whether there has been an ongoing armed conflict in and around the territory of Gaza before October 7 2023. The existence of an ongoing armed conflict is an objective test, and, while there might be various standards depending on whether the conflict is an international or non-international armed conflict, safe to say that generally a conflict would end when there is no longer a foreseeable risk that hostilities will resume. Before October 7, needless to say, there was such a foreseeable risk.
In the event of an ongoing armed conflict, whether occupied territory or not, whether international or non-international – it is the law of armed conflict – rather than UN Charter obligations that may or may not apply that really governs the conduct of the parties.
Lastly, the prevention and punishment of Genocide is non-derogable, to “add an appropriate caveat...except as necessary to lawfully exercise the right of self-defence" in any provisional measures order that also concerns a jus cogens norms seems doubtful.
Nicolas Boeglin says
January 8, 2024
Dear professor Lempel
Many thanks for your interesting post. It seems to me that any military action, invoking or not Art.51, has to respect some very basic rules with respect to civilian population. Israel shows, day after day since Oct.7th, that it doesn´t respect them at all.
I also refer you to paragraphs 101-107 of South Africa request, detalling official declarations made by high authorities in Israel. We read at paragraph 107 that:
"107. Those statements by prominent members of Israeli society — including former parliamentarians and news anchors — constitute clear direct and public incitement to genocide, which
has gone unchecked and unpunished by the Israeli authorities".
Source:
https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf
Israel seems to be note so sure as you are, with respect to the content of the future ICJ order: may I just quote an Israel´s internal diplomatic instruction to all Israel´embassies in which we read that:
"A ruling by the court could have significant potential implications that are not only in the legal world but have practical bilateral, multilateral, economic, security ramifications".
Source:
https://www.axios.com/2024/01/05/south-africa-gaza-genocide-icj-israel-plan
Yours sincerely
Nicolas Boeglin
Sam Citron says
January 8, 2024
1) By definition it is impossible to commit genocide if acting in self defense. The 2 terms are contradictory.
2) According to the theory that there is no right to self defense against a non state actor, does that mean that one must allow terrorists free rein to murder as many people as they wish?
3) A ruling would be meaningless as politically Israel would be forced to ignore it. The lives of her citizens are more valuable than adherence to international law.
4) Considering that UK invoked Article 51 to reoccupy the Falkland Islands in 1982, Israel's actions are many times more justified.
Alexander Bedrosyan says
January 8, 2024
It has been settled for over a half century that a respondent state cannot unilaterally control the jurisdiction of an international court, by raising a defense and then claiming that defense is outside the court's competence so the court cannot rule on the case at all.
From the ICJ, in 1972:
"Nor could the Council be deprived of jurisdiction merely because considerations that are claimed to lie outside the Treaties may be involved if, irrespective of this, issues concerning the interpretation or application of these instruments are nevertheless in question. The fact that a defence on the merits is cast in a particular form, cannot affect the competence of the tribunal or other organ concerned,--otherwise parties would be in a position themselves to control that competence. which would be inadmissible."
https://icj-cij.org/sites/default/files/case-related/54/054-19720818-JUD-01-00-EN.pdf (p. 61)
Marko is correct. Israel cannot raise Article 51 as a defense - whether explicitly or through a "middle ground" as suggested by the author - and then claim that the presence of Article 51 issues deprives the ICJ of the power to consider the case (including issuing provisional measures).
If Israel wants to avoid provisional measures, it would have to allow the ICJ to consider on a preliminary basis the strength of the Article 51 defense, as well as the legal question of whether there can ever be a defense to genocide.
Olivia Flasch says
January 8, 2024
Dear Jesse, thank you for your very interesting post. I do have one question - my understanding is that Israel does not consider this to be an Article 51 situation, as they were already in a state of armed conflict with Hamas prior to October 7, so the October 7 attacks were in effect just a (horrendous) escalation of that already existing conflict. If they went with that approach at the ICJ, what impact might that have on the ICJ's ability to issue provisional measures in your view?
Adil Haque says
January 8, 2024
Hello everyone,
To add a wrinkle:
In Ukraine v. Russia, Judge Robinson voted in favor of ordering Russia to immediately suspend military operations.
However, in his separate opinion, he wrote:
32. It is critical to note that the fact that the military operation by Russia appears to be capable of falling within the Convention as being in breach of Article I, has no implication for Russia’s claimed right of self-defence. The right of self-defence recognized in Article 51 is inherent in every State and cannot be overridden by any pronouncement the Court may make as to the consistency of Russia’s military operation with the Genocide Convention.
I am still unsure exactly what he meant by this, and welcome any thoughts that others may have. But it does suggest that the Court may direct Israel to suspend military operations in Gaza without an express exception for self-defense.
Many thanks,
Adil
Brian L. Cox says
January 9, 2024
Adil,
This is a great point - the post above made me think of this exact topic, but I didn't remember this specific paragraph from J. Robinson's separate opinion that gives really helpful structure to the issue.
My understanding of the point J. Robinson was making in this passage is to emphasize that the provisional measure is directed at (potential) violation of the Genocide Convention but *not* at Art. 51 of the Charter.
If I were to paraphrase for clarity, my understanding would be something along the lines of: "We're not here to adjudicate or second-guess the claim of self-defense (which was quite clearly built by Russia on a manufactured factual basis). If Article 51 were the only issue before the Court, it would be inappropriate for us to order provisional measures since self-defense is an inherent right. Any provisional measures published by the Court, then, should be interpreted to apply (in this case) only to the (asserted) violation of the Genocide Convention and *not* to Art. 51 of the UN Charter."
That was my understanding of the point...for what it's worth. I concur with some of the previous commentary suggesting that the issue of self-defense may be addressed in its customary form rather than conventional law in the form of Art. 51 of the Charter in the context of the South Africa application (though there are of course compelling reasons to suggest that Art. 51 does - or should - apply). But if (my understanding of) J. Robinson's reasoning in that passage were applied to the South Africa application, it would again emphasize that any provisional measure related to the Genocide Convention must be understood to be completely separate from the issue of Israel's claim of self-defense (whether that is customary or conventional).
Excellent point - and definitely one of many interesting wrinkles to keep an eye on as this case progresses.
Miłosz Gapsa says
January 9, 2024
Thank you for your article. I have two comments/questions:
1.
Don’t you think that South Africa v. Israel is more similar to The Gambia v. Myanmar, Canada and the Netherlands v. Syria than to Ukraine v. Russia? In the former cases, the applicants claim that the respondents breached international law. In the latter, the applicant claims that it did not breach the Convention and that Russia is abusing it to justify its special military operation. From that perspective, I consider the Order in Ukraine v. Russia as justifiable.
2.
I consider Article 75(2) of the ICJ Rules as giving the Court full freedom in choosing the form of provisional measures. Such "absolute" freedom was confirmed even by other international courts such as ITLOS in Arctic Sunrise (duplicating the prompt release) and the CJEU in Turów Mine (duplicating the financial penalty for the failure to comply with a final judgment). For me, the question is not what the ICJ can indicate as provisional measures, but what it sees as more effective in preventing irreparable prejudice. In Guyana v. Venezuela, Venezuela also argued that the Court cannot halt organising the referendum as the domaine reserve; the ICJ skipped this issue as prohibited undermining the status quo, which obviously could result as the aftermath of the referendum.
That being said, I expect provisional measures in South Africa v. Israel to be granted (even only the non-aggravation ones) and in forms similar to those in The Gambia v. Myanmar and Canada and the Netherlands v. Syria.
Nicolas Boeglin says
January 10, 2024
Dear professor Lempel
May I just add to my previous comment on official declarations heard in Israel since October 7th, what is published today in Israel:
"Israel’s legal defense would be engaged in “an uphill struggle” in which it would have to convince the court that the prime minister and other cabinet ministers did not mean what they said and that their words do not reflect what has actually happened on the ground in Gaza".
Source: https://www.timesofisrael.com/we-should-be-worried-israel-faces-peril-at-the-hague-in-gaza-genocide-case/
Yours sincerely
Nicolas Boeglin
Xavier Pons says
January 11, 2024
Thank you for your post and for the thoughts you suggest on whether or not the ICJ can issue provisional measures in relation to South Africa's Genocide Convention claim against Israel. However, I think some ideas can and should be nuanced
No one doubts that the State of Israel has every right to defend itself against the horrific attacks of 7 October. Indeed, it is the responsibility of all governments - indeed, it is an obligation or a duty rather than a right - to ensure the safety of their citizens and to protect them from threats and attacks such as these, which the Israeli government and many governments of other states describe as terrorist attacks. The truth is, however, that there is still no international consensus on the concept of international terrorism itself, as this depends on the political positions of different states, political instrumentalisation and the interests involved.
However, Israel's self-defence argument, which is also supported by international law, deserves at least a brief consideration. The right of individual or collective self-defence exists under international law and is explicitly enshrined in Article 51 of the United Nations Charter. It is an inherent right of states that applies in the event of an armed attack - i.e. aggression - against a state by another state.
Although Israel and many governments of other states have regarded the Hamas attacks of 7 October as acts of terrorism, they could perhaps - given the scale of the attacks and the number of casualties - be regarded as an armed attack within the meaning of Article 51 of the Charter. This is what the same states have done by supporting Israel's action on the basis of legitimate self-defence, which, as I will show in a moment, is ultimately contradictory. This is what happened, albeit very questionably, with the attacks of 11 September 2001, which were considered armed attacks within the meaning of Article 51 of the Charter. The Security Council itself reaffirmed the inherent right of individual or collective self-defence recognised in the UN Charter in Resolutions 1368 (2001) of 12 September 2001 and 1373 (2001) of 28 September 2001.
Even accepting the argument of an armed attack, it is in my view far from clear that this armed attack - alleged or not - can be attributed to a state. The Palestinian armed groups responsible for the attack emanated from the Gaza Strip, which is itself part of the Occupied Palestinian Territories, occupied by Israel in 1967 and partially under the control of the PNA since the Oslo Accords of 1993. In any case - even with the legal status of the Occupied Palestinian Territories, in accordance with international law - I understand that this is a state, Palestine, recognised as such by many other states - some 140 states - and recognised as a non-member observer state at the United Nations since 2012 (General Assembly Resolution 67/19 of 29 November 2012), but not recognised as such by Israel, the state that was the victim of the armed attack of 7 October.
This context and the legal status of the Occupied Palestinian Territories make it very difficult, in my opinion, to consider Hamas and the other Islamist militias responsible for the armed attack as irregular groups sent by or on behalf of another state, an aspect that would internationally justify armed action on the grounds of self-defence. Moreover, although Israel completed the withdrawal of its settlers and armed forces from the Gaza Strip in August 2005, Israeli forces have continued to maintain a siege and full control of the borders of the Gaza Strip since then, as they have in all the occupied Palestinian territories since 1967, and have now taken direct control of the Strip with their deadly ground offensive.
The ICJ made this point in its 2004 advisory opinion on the legal consequences of the construction of a wall in the occupied Palestinian territory. The ICJ held at that time that if the alleged threat for the construction of the wall came from inside the Occupied Palestinian Territory - and not from outside - the argument of self-defence for such construction could not be justified, as Israel claimed (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136, para. 139). It is true that the current situation with regard to the wall is different from that which arose in 2004, since Israel withdrew its permanent presence from the Gaza Strip in 2005, which was not the case in the rest of the Occupied Palestinian Territory, the West Bank and East Jerusalem. But the argument of the irrelevance of legitimate self-defence in this case is also supported by the control and blockade that Israel has maintained over Gaza since its occupation.
In any case, in international law, self-defence is essentially the right of a State to use necessary force to repel an armed attack by another State, for the duration of the attack and by the means provided to repel it. In other words, self-defence must be necessary, immediate and proportionate. Necessary and immediate in the sense that, in the face of the attack suffered, the use of force is necessary precisely to stop and repel the aggression suffered, but only to that extent. In my opinion, it must be understood that the Israeli armed response to the aggression suffered was necessary and immediate in the sense of containing, suppressing and expelling the aggressors from their territory. That is to say, during the moments of the attack and until the expulsion of the attackers from Israeli territory was completed, always and in any case when this was done with due respect for humanitarian and human rights norms.
What is beyond doubt, in my view, is that even with full awareness of the scale and violence of the attacks by Hamas and the other Islamist militias on 7 October, the subsequent deadly and prolonged Israeli armed response in the Gaza Strip does not fall within any acceptable parameters of proportionality. The necessary proportionality in the form and intensity of the self-defence action, i.e. the defensive response, cannot in any way be reconciled with the three months - so far - of massive and indiscriminate attacks on the Gaza Strip, causing its total devastation. Not only because of the scale and sheer disproportionality of the number of victims and the damage to infrastructure, buildings and civilian facilities, but also because this has been a full-scale invasion of a territory that, although occupied by Israel in 1967 and still under its siege, surveillance and control, was not and is not part of the territory of the internationally recognised State of Israel.
What is happening in Gaza - and statements by Israeli leaders, starting with its President and Prime Minister, have repeatedly confirmed this - seems more like an act of armed reprisal - an act of pure revenge - for the attack and for the victims suffered. In this sense, and as I have already indicated, I believe that history clearly demonstrates that reprisals - or collective punishment - is not only profoundly unjust because it affects innocent people, but that it is also totally ineffective, beyond satisfying the thirst for revenge.
In the same vein, it should also be pointed out that, from the point of view of international law, legitimate self-defence cannot, under any circumstances, include the right to exercise armed reprisals. Indeed, one of the integral elements of the principle of international law that establishes the prohibition of the use or threat of force is precisely the prohibition of armed reprisals. This is stated in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (General Assembly Resolution 2625 (XXV) of 24 October 1970) when, in developing the principle of the prohibition of the threat or use of force, it is stated that "States have a duty to refrain from acts of reprisal involving the use of force".
In this sequence of ideas, it is clear to me that, even if one accepts the questionable justification of self-defence, the exercise of self-defence must be governed by the principle of proportionality and cannot, under any circumstances, be unlimited in international law. Thus, when the draft articles on the international responsibility of States for internationally wrongful acts (annexed to General Assembly resolution 56/83 of 12 December 2001) provide for self-defence as one of the grounds for excluding wrongfulness, they also establish its limits. In addition to stating that it must be "a lawful measure of self-defence taken in conformity with the Charter of the United Nations" (Article 21), Article 26 of the draft provides that the wrongfulness of “any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law” shall not be excluded, which, as we shall see, is the case with respect to the fundamental rules of International Humanitarian Law.
Similarly, the same draft articles provide that States may take countermeasures to give effect to responsibility for wrongful acts of other States, but provide in Article 50(1) that countermeasures shall not affect: " Countermeasures shall not affect: (a) The obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations; (b) Obligations for the protection of fundamental human rights; (c) Obligations of a humanitarian character prohibiting reprisals; (d) Other obligations under peremptory norms of general international law". In the light of what is happening in Gaza, it seems that none of these limitations - which, although they refer to countermeasures, can be understood as general or fundamental in nature - have been considered in the armed Israeli response to the 7 October attacks.
For these reasons, I believe that it would be entirely appropriate for the ICJ - considering prima facie that there is sufficient basis for jurisdiction- to issue interim measures establishing Israel's obligation to cease hostilities in Gaza in order to avoid aggravating the situation and the hypothesis - difficult to prove, but also plausible - of the commission of acts of genocide. In this way, the ICJ could also contribute - perhaps decisively - to peace and respect for human rights, even without conditioning its subsequent determination of admissibility and jurisdiction or its decision on the merits of the case.
Cyrus Safdari says
January 11, 2024
Many of these arguments are contradicted by the Aug 2022 joint British Dutch Danish German Canadian intervention petition filed before ICJ in the Myanmar case.
Artem Ripenko says
January 12, 2024
I believe the ICJ can adopt provisional measures in that case (similar to the U-R case), considering that self-defence is, in principle, applicable to that particular armed conflict. However, if an armed attack occurs after they have been adopted, there may be doubt about whether they could impair the right of self-defence of the defending state (likely they could not).
Manuel Sánchez Miranda says
January 12, 2024
Dear Jesse,
I appreciate your insights but would like to offer a couple of additional perspectives:
1) The right to self-defense is not unlimited (See e.g. ICJ's Advisory Opinion in the Nuclear Weapons case). A state exercising self-defence still needs to fulfil the conditions of necessity and proportionality. And I fail to see how committing genocide would be necessary or proportional to anything else we can think of in international relations. Therefore, if Israel were to cite self-defense, it would bear the burden of proving both necessity and proportionality.
2) Establishing whether self-defense criteria are met demands a nuanced, case-by-case analysis of the specific events at hand (See e.g. Oil Platforms case). It is overly simplistic to assert that "Israel’s self-defense is implicated" and use this broad proposition to conclude the ICJ's inability to order provisional measures. The ICJ's approach to self-defense is far more intricate.
Manuel
Nicolas Boeglin says
January 13, 2024
Dear Professor Lempel
May I just add to my previous comment a short note on expanding an growing support observed coming from Latin American States this week:
https://derechointernacionalcr.blogspot.com/2024/01/gaza-israel-bolivia-apoya-accion-de.html
I wonder if in Europe, we will observe one single EU State Member joining officially this support.
Yours sincerely
Nicolas Boeglin
Nicolas Boeglin says
January 13, 2024
Dear Professor Lempel
May I just add to my previous comment a short note on expanding an growing support to South Africa action before ICJ observed coming from Latin American States this week:
https://derechointernacionalcr.blogspot.com/2024/01/gaza-israel-bolivia-apoya-accion-de.html
I wonder if in Europe, we will observe one single EU State Member joining officially this support.
In my view, the official communiqué of Colombia deserves particular interest:
https://www.cancilleria.gov.co/newsroom/news/comunicado-demanda-presentada-sudafrica-israel-corte-internacional-justicia
Yours sincerely
Nicolas Boeglin