The ICJ Order on provisional measures of January 2024 in South Africa v. Israel on Genocide Case: An expected but disappointing decision

Abstract

The ICJ’s Order on provisional measures in the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) raised a lot of interest, mainly concerning the ceasefire requested by South Africa. After the Order was delivered, a general feeling of disappointment seems to have taken hold. Yet the Court’s decision was not entirely unexpected, given the Court’s practice as well as the particularities and complexities of the case.
In this work, we critically analyse the path followed by the Court leading to the rendering of its provisional measures. We pay particular attention to the requirements to be met: prima facie jurisdiction; the plausibility of the rights and its link with the requested measures; and irreparable prejudice and urgency. This editorial seeks to clarify the Court’s position and analysis, relating it to other orders so as to understand the provisional measures delivered.
This case is not merely a legal issue. It is one of social interest. And too much was expected of the Court in the wake of the extraordinary provisional measures rendered in Ukraine v. Russian Federation. In this latter case, however, the unmentioned issue of self-defence played an essential role, permeating the whole process and limiting the extent of the measures.