South Africa's Genocide Case at the ICJ and What Provisional Measures Mean

The Peace Palace in The Hague was paid for by Andrew Carnegie, the steel baron, who gave money in the early 1900s for a building where nations might settle their quarrels in court instead of on battlefields. On January 26, 2024, in its great hall, the president of the International Court of Justice, Judge Joan Donoghue of the United States, read out an order in a case brought by South Africa against Israel under the Genocide Convention. Within minutes, both sides' supporters were telling the world what the court had said. Many of them were wrong in ways that matter. A careful reading of that order tells you a great deal about how international law works, and about the difference between an emergency measure and a verdict.

In short: In January 2024 the World Court did not find that Israel was committing genocide, and it did not dismiss the claim. It found that Palestinians in Gaza had plausible rights to protection under the Genocide Convention that faced a real risk of irreparable harm, and ordered Israel to prevent genocidal acts, punish incitement and enable humanitarian aid. The question of whether genocide occurred is decided only at the end of a case that takes years.

Two courts, often confused

The first thing to get straight is which court this is. The International Court of Justice, the ICJ or World Court, is the main judicial organ of the United Nations. It hears disputes between states. It does not try individuals and it cannot send anyone to prison.

The International Criminal Court, the ICC, is a separate institution, also based in The Hague, created by the Rome Statute in 2002. It prosecutes individuals for genocide, crimes against humanity, war crimes and aggression. When you read that judges issued arrest warrants for Israeli and Hamas leaders in November 2024, that was the ICC. When you read about South Africa v. Israel, that is the ICJ. Different courts, different law, different consequences.

The ICJ's jurisdiction in this case rests on a clause in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Article IX lets any party bring a dispute about the convention's interpretation or application to the court. South Africa and Israel are both parties. Israel ratified the convention in 1950, in the shadow of the Holocaust that gave the crime its name.

What South Africa asked for

South Africa filed its application on December 29, 2023, nearly three months into the war that followed the Hamas-led attacks of October 7, in which about 1,200 people were killed in Israel and about 250 taken hostage. South Africa's filing argued that Israel's conduct in Gaza, including the scale of killing and destruction, the restrictions on food, water and medicine, and statements by Israeli officials, showed genocidal intent toward Palestinians in Gaza as a group. Alongside the main case, it asked for provisional measures, the ICJ's version of an emergency injunction, including an order that Israel suspend its military operations.

Israel answered at hearings on January 11 and 12, 2024. Its lawyers argued that the war was an act of self-defense against Hamas after the worst attack on Jews since the Holocaust; that Hamas, not Israel, held genocidal aims; that Israel was taking measures to reduce civilian harm and allow aid; and that South Africa had stripped officials' statements of context and ignored the government's actual orders.

What the court actually said

Provisional measures have a specific legal test. The court asks whether it appears to have jurisdiction, whether the rights the applicant claims are at least plausible, whether there is a link between those rights and the measures asked for, and whether there is a real and imminent risk of irreparable harm before the final judgment.

The court said yes on each point. It found that at least some of the rights South Africa claimed, including the right of Palestinians in Gaza to be protected from acts of genocide, were plausible. Then, by large majorities, it ordered Israel to:

• take all measures within its power to prevent the commission of acts listed in Article II of the Genocide Convention against Palestinians in Gaza;
• ensure with immediate effect that its military did not commit any of those acts;
• take all measures within its power to prevent and punish direct and public incitement to commit genocide;
• take immediate and effective measures to enable basic services and humanitarian assistance;
• prevent the destruction of, and ensure the preservation of, evidence related to the allegations; and
• report to the court within one month on what it had done.

Most of these passed by fifteen votes to two. The judge Israel appointed to sit on the case, Aharon Barak, the former president of Israel's Supreme Court, joined the majority on the measures about incitement and humanitarian aid. Judge Julia Sebutinde of Uganda dissented on all of them. The court also said it was gravely concerned about the hostages held in Gaza and called for their immediate and unconditional release.

The court did not order a ceasefire. That omission was noticed immediately, and it was a choice; the court could have ordered a halt and did not.

The word "plausible" and the fight over it

The single word that caused the most confusion was "plausible." Many headlines and many activists read the order as saying the court had found it plausible that Israel was committing genocide. Many defenders of Israel read it as saying the court had found nothing at all.

Both readings miss. In an interview with the BBC in April 2024, after she had left the court, Judge Donoghue addressed this directly. She said, in substance, that the court had not decided that the claim of genocide was plausible; it had decided that the Palestinians had plausible rights to protection from genocide, and that South Africa had a right to bring the claim. That is a narrower statement, and it is the accurate one.

Narrower is not the same as meaningless. A court of fifteen judges from around the world, including the United States, found that the risk to those rights was real and urgent enough to issue binding orders against a state in the middle of a war. Provisional measures of the ICJ are legally binding; the court settled that question in a 2001 case, LaGrand, brought by Germany against the United States. That is a serious thing to have said about any government.

The later orders

The case did not stop in January. As conditions in Gaza worsened, South Africa returned to the court.

On March 28, 2024, the court unanimously ordered Israel to take all necessary and effective measures to ensure, without delay and in cooperation with the UN, the unhindered provision of basic services and humanitarian aid, including food, water, fuel and medical supplies, and noted that famine was setting in. On May 24, 2024, it ordered Israel to immediately halt its military offensive in Rafah, in the far south of Gaza, and any other action there that might inflict conditions of life bringing about the physical destruction of the group in whole or in part, and to keep the Rafah crossing open for aid. That order passed by thirteen votes to two. Israel and the court's own judges then disagreed publicly about how broad the Rafah order was, a disagreement visible in the separate opinions attached to it.

The procedure since has been ordinary and slow. South Africa filed its full written argument, its memorial, in October 2024. Israel was given time to file a counter-memorial. A number of states have filed declarations of intervention, which allow a third state to put its view of how the Genocide Convention should be interpreted. Hearings on the merits and a final judgment will come later; such cases routinely take many years.

How hard genocide is to prove

To understand the likely shape of the final judgment, look at the court's earlier genocide cases.

In 2007, in Bosnia and Herzegovina v. Serbia and Montenegro, the court found that the massacre at Srebrenica in July 1995 was genocide, and that Serbia had violated its duty to prevent genocide and to cooperate with the international tribunal. But it found that Serbia itself had not committed genocide, because the necessary link to the state and the specific intent were not proven to its standard. In 2015, in Croatia v. Serbia, it rejected both the claim and the counterclaim, finding that while terrible crimes had occurred on both sides, genocidal intent had not been established.

The core difficulty is intent. Genocide requires acts like killing or causing serious harm committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. The court has said that where intent is inferred from a pattern of conduct, that inference must be the only reasonable one available. That is a very high bar, and it is why critics on all sides say the convention is better at naming the crime than at finding it.

There is a live argument about whether the bar is too high. In The Gambia v. Myanmar, a case brought in 2019 about the treatment of the Rohingya, several Western states that intervened, including Canada, the United Kingdom, France and Germany, urged the court to take a broader approach to inferring intent. How the court resolves that argument in the Myanmar case will shape the Gaza case too.

Enforcement, or the absence of it

If the ICJ's orders are binding, who makes a state comply? The court has no police. Under Article 94 of the UN Charter, a party may take a judgment to the Security Council, which can decide on measures to give it effect. The Council's five permanent members each have a veto, and the United States has repeatedly used its veto on Gaza resolutions. In practice, the force of the court's orders comes from their weight on everyone else: allies deciding about arms sales, courts at home weighing export licences, companies and investors judging legal risk, and the public record that the judges create.

That is not nothing. Several governments cited the ICJ's orders when they reviewed weapons exports in 2024. But it is a reminder that international law works less like a police force and more like a ledger that is read by many hands.

What a final judgment could and could not do

Suppose the case runs its full course. What are the possible outcomes, and what would each mean?

The court could find that Israel committed genocide, which would require it to be persuaded that the specific intent to destroy Palestinians in Gaza as a group, in whole or in part, was the only reasonable inference from the evidence. It could find, as it did against Serbia in 2007, that Israel did not commit genocide but failed in a separate duty, such as the duty to prevent it or to punish incitement. The Genocide Convention imposes several distinct obligations, and a state can breach one without breaching another. Or it could find no violation at all.

Whatever the outcome, the judgment would bind only the two parties to the case and would concern state responsibility, not the guilt of any individual. Remedies in the ICJ are things like declarations, orders to cease wrongful conduct, assurances of non-repetition and reparation. The court has no power to impose sanctions or to arrest anyone.

That may sound modest. But a judgment of the World Court is the most authoritative statement international law can make about a state's conduct, and it lasts. The Srebrenica finding of 2007 still shapes how governments, historians and Bosnians themselves talk about 1995. Whatever the court eventually says about Gaza will be read for generations by Israelis and Palestinians alike, which is one more reason to treat its interim orders with care rather than as ammunition.

It is also worth remembering how long the road is. The Bosnian case was filed in 1993 and decided in 2007. Patience is not indifference; it is what a careful verdict costs.

Here is the argument

What follows is this site's view, labelled as such.

The useful response to the ICJ case is neither to celebrate it as a conviction nor to wave it away as politics. The orders of January, March and May 2024 asked Israel to do things any government fighting a war in a dense city should do anyway: prevent atrocity, punish officials who call for it, let food and medicine through, keep the evidence. A progressive position that respects the court should also respect what it did not say, and be careful not to claim a verdict that has not been reached. A pro-Israel position that respects the rule of law should treat binding orders as binding.

The hostages, the dead of October 7 and the dead of Gaza are all people with names. A court that holds both Hamas's crimes and a state's duties in the same order, as this one did, is doing what courts are for. You can follow the case and the wider war on our Gaza and Palestine topic page.

What you can do

• Read the order yourself. The ICJ publishes its orders, summaries and the parties' filings on its own website. The January 26, 2024 order is short enough to read in an evening. You will understand the case better than most commentators.
• Ask how your members of Congress read it. Look up your representative and senators on our representatives page, which shows their contact details and latest votes from your address. Ask whether US arms policy takes the World Court's binding orders into account, and what they would change.
• Follow the votes that follow. When arms sales and aid conditions come to the floor, the Congress tracker shows the bills and how each member voted.
• Keep the two courts straight in conversation. If someone says "the court convicted" or "the court threw it out," gently explain the difference between the ICJ and the ICC and between provisional measures and a judgment. Accuracy is a form of solidarity.
• Read beyond one case. The human rights and foreign aid page follows the Myanmar genocide case, Sudan and Ukraine as well, which keeps the standard consistent.