Sudan’s application to the ICJ was the latest in a string of cases brought to the Court on the basis of the Genocide Convention (most notably, South Africa v. Israel, Ukraine v. Russia, The Gambia v. Myanmar). However, Sudan faced one major obstacle to obtaining justice from the Court: the UAE has a reservation to Article IX Genocide Convention, which contains the compromissory clause (the jurisdictional clause) which Sudan was seeking to base the Court’s jurisdiction upon. Only 16 States in total have made reservations to this Article to exclude the Court’s jurisdiction from cases concerning the application, interpretation, or fulfilment of the Genocide Convention. Nevertheless, at the provisional measures stage, the Court need only be satisfied that it has prima facie jurisdiction and does not need to ‘satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case’.

During the oral proceedings, Sudan argued that the UAE’s reservation to Article IX Genocide Convention was vague and non-specific, and that at least at the prima facie stage the Court should not interpret the reservation so as to definitively exclude its jurisdiction. The UAE argued, on the other hand, that the reservation was clearly drafted to show that it does not consent to the Court’s jurisdiction. Ultimately, the Court decided that it did not have prima facie jurisdiction over the dispute to indicate provisional measures (by a majority of 14-2). However, alongside this, by a majority decision of 9-7, the Court also removed the case from its docket due to a ‘manifest lack of jurisdiction’ [para. 36]. This has only ever occurred twice (see here and here) in the 80 years history of the Court at the provisional measures stage.

The dissenting and partly dissenting opinions to the Order speak volumes here. In the joint part dissent of six judges, they argue that the rushed judgment on jurisdiction ‘effectively punishes Sudan for seeking the indication of provisional measures’ [para. 1]. Indeed, if Sudan had not requested provisional measures, the case would have likely proceeded to the preliminary objections phase (presuming that the UAE contested the Court’s jurisdiction). At this stage, the Court would have been able to more thoughtfully engage with the question raised by Sudan’s application and request: namely, is it still compatible with the Genocide Convention’s object and purpose for a State to make a reservation to Article IX – the one provision in the Convention which allows for a State to be held responsible for violations of the Convention at the ICJ?

The Court considered this question in its 1951 Advisory Opinion on Reservations to the Genocide Convention, concluding that reservations to Article IX were permissible, and has affirmed this reasoning since. But the growing importance of the Court in settling disputes and finding State responsibility under the Genocide Convention, as well as the nature of the obligations contained in the Convention as erga omnes partes (obligations owed to all other States parties), could have led the Court to a different conclusion.

Perhaps this issue of compatibility was answered by the majority of the judges in removing the case from the Court’s docket. Nevertheless, even then the Court’s reasoning is unclear, dedicating just one short paragraph in its Order on its finding of a manifest lack of jurisdiction. It seems that the hoped-for effect of this finding is one of deterrence and the prioritisation of ‘judicial economy’. It is, however, hard to reconcile the resulting manifest lack of justice with the primary role of the Court in the peaceful settlement of international disputes, and its role in the protection of human rights.

The ruling

It is important to note that the current decision concerns the indication of provisional measures: it is preliminary and does not determine the merits of the allegations. Rather, the ICJ focuses on jurisdiction, standing, and the need for an indication of provisional measures.

Jurisdiction

In finding that it has jurisdiction, the ICJ’s reasoning has two stages. First, a dispute exists—prima facie—between South Africa and Israel about ‘the interpretation, application or fulfilment’ of the Genocide Convention [17]. As the source material shows, the parties have expressed clearly opposite views about whether there have been violations of the Convention.

Second, at least some of the acts and omissions alleged appear ‘capable of falling within the scope’ of the Convention [24],[30]. Importantly, the ICJ finds that Palestinians appear to constitute a distinct ‘national, ethnical, racial or religious group’ under Article II of the Convention [45]. Nevertheless, the ICJ is at pains to stress that it is not deciding whether alleged violations have in fact occurred. That is a question for a full hearing about the allegations’ merits.

Standing

Although not challenged by Israel, the ICJ also finds that South Africa has standing before the court—again, prima facie—to allege violations of the Convention [34]. Further analysis comes in Judge Xue’s declaration on the point.

Provisional measures

The ICJ then decides to use its power to indicate provisional measures. It holds that the requisite urgency exists, i.e. ‘a real and imminent risk that irreparable prejudice will be caused to the rights claimed’ before the court reaches its eventual decision about the merits [61].

The order

The judicial split

The ICJ makes one order, with six provisions. This order is not unanimous. Four of the provisions are by a majority of fifteen judges to two. The other two provisions are by a majority of sixteen judges to one.

The provisions

No provision mandates a ceasefire. Instead, the ICJ requires Israel to adhere to obligations that it already has under the Convention (and, arguably, under other norms of international law). The only additional requirement is for Israel to submit a report, within one month, on measures taken to give effect to the order.

Therefore, despite South Africa’s requests, the ICJ declines to order immediate suspension of military activity in Gaza. However, it never explains why (e.g [77]-[78]). This is unsatisfactory. Even at this early stage, there should be fair analytical engagement with South Africa’s requests. The ICJ’s failure might be pragmatic—perhaps the judges widely disagreed about a ceasefire or had arguments too disparate to bring together in the written order. But, by this failure, the ICJ does not fulfil an important function of a court: open, transparent reasoning. Opaqueness, though strategic, is frustrating. We are left guessing.

Issues ahead

This interim decision is unlikely to have major practical impact. On the one hand, the ICJ accepts most of South Africa’s submissions and gives little space to Israel’s reliance on self-defence. On the other hand, the ICJ stops short of granting South Africa’s most pressing requests. As such, neither party should claim victory.

The litigation will be lengthy. Going forward, one issue likely to dominate it is that of genocidal intent. The ICJ repeatedly refers to this issue. In dissent, Judge Sebutinde emphasises the absence of such intent, offering an autobiographical example. Meanwhile, in a separate opinion, Judge Barak agrees to the third and fourth provisions only on the basis that they may reduce tension and already represent the ‘DNA’ of Israel’s law and military [13]. Judge Barak finds that no genocidal intent exists, reasoning that the case is most appropriately analysed through international humanitarian law rather than the Convention.

On intent, we must be accurate when understanding the fabric of international criminal law. Genocide—the ‘crime of crimes’ (Akayesu (ICTR, 1998))—is made distinctive partly by its intent. The intent must be to destroy, in whole or in part, a protected group. As a matter of law, Israel may be committing war crimes, for instance, distinct from genocide. That doctrinal distinction may prove decisive in the litigation to come.