The effectiveness of provisional measures: South Africa vs Israel
Leyan AlMaqousi
These orders came following South Africa’s courageous decision to initiate legal proceedings against Israel at the ICJ in December 2024 after more than two months of Israel’s relentless bombardment of the Gaza Strip. This significant move stemmed from allegations that Israel’s actions in Gaza, beginning on October 7th and extending into the broader context of its long-standing occupation of Palestinian territories, amounted to genocide under the conventions of international law.
South Africa’s application to the ICJ was comprehensive, tracing the roots of the alleged genocidal acts over decades of apartheid, occupation, and blockade. Citing continuous severe atrocities, South Africa demanded urgent provisional measures to prevent further harm to Palestinians, referencing the erga omnes principle — obligations states have to the entire global community – as justification. This principle was crucial to South Africa’s legal standing and argument that all signatories of the Genocide Convention, including Israel, have a collective responsibility to prevent actions that could be construed as genocidal.
The ICJ’s response came on the 26th of January 2024, when it ordered provisional measures demanding Israel cease its military operations in Gaza. It then added more provisional measures in March due to the deteriorating humanitarian situation there. However, the humanitarian crisis in the Gaza Strip did not improve. Israel continued its military operations, disregarding the two orders made by the ICJ. Leading to the most recent order, released in May, reaffirming Israel’s obligation to “immediately and effectively” implement the previous provisional measures as well as those contained therein.
Despite the ICJ’s decisive action, the situation on the ground post-ruling paints a grim picture of compliance. Mere minutes after the order, Israeli forces launched an intense bombardment in Rafah, demonstrating a stark disregard for the Court’s mandates. Then, two weeks after this escalation, a devastating massacre occurred in the Nuseirat refugee camp taking the lives of over 270 Gazans, including women and children.
The repeated military actions post-ICJ rulings raise critical questions about the effectiveness of international law and the mechanisms at its disposal to enforce its rulings. The ICJ, while a respected entity capable of adjudicating matters of grave concern, lacks direct enforcement powers. This limitation significantly hinders its ability to prevent the continuation of acts it deems contrary to international law.
The ongoing defiance by Israel also brings to light the challenges faced by the international community in addressing and curbing states’ actions that violate international norms, especially when those states are bolstered by significant geopolitical support. The erga omnes principle, despite its noble intent to safeguard global values, faces substantial obstacles in practice, as states weigh their diplomatic and strategic interests against their legal and moral obligations.
As the world watches events unfold in Gaza and the responses—or lack thereof—from global powers, the role of the ICJ and the effectiveness of international law are under intense scrutiny. The South Africa vs. Israel case is not just a legal battle; it is a litmus test for the international legal system’s capacity to uphold justice and human rights across national boundaries and political alliances.
The South Africa vs. Israel case is not just a legal battle; it is a litmus test for the international legal system’s capacity to uphold justice and human rights across national boundaries and political alliances.
Looking forward, the international community and the ICJ must consider ways to strengthen the enforcement of their directives. Whether through more robust mechanisms within the United Nations system, increased diplomatic pressure, or economic sanctions, the need for actionable tools to ensure compliance with international law has never been more apparent. The effectiveness of these measures, however, will largely depend on the collective will of the international community to prioritise human rights and justice over political interests and expediency.
The big question now is what will the ICJ do next? Will they or the member states enforce measures to ensure Israel obeys the orders, or will the world continue to remain silent? The international community is at a crossroads, and the actions taken in the coming days will show whether international law has real power or if it’s just symbolic.
The people in Gaza need more than just words; they need decisive action to uphold justice and protect their rights.
