Kerstin Bree Carlson joins JiC for this guest-post on the ICJ’s interim decision in the South Africa case. Kerstin is associate professor at Roskilde University and The American University of Paris where she teaches topics in international law and sociology. Her current research examines terrorism trials in Denmark, France and Colombia.

Much has already been written about the historic interim ruling in South Africa v. Israel by the International Court of Justice (ICJ). All sides have claimed victory: South Africa, because their erga omnes claim under the Genocide Convention was not thrown out; Palestine, because the ICJ has recognized the devastating conditions in Gaza; Israel, because it was not ordered to cease its war effort. All sides have also noted disappointment: South Africa and Palestine because the ICJ declined to order a ceasefire; Israel, because the ICJ found that its war efforts could plausibly constitute genocide.

The one group that is especially excited by the ICJ’s order is international lawyers; many have praised the Court’s strong rhetoric and near unanimous decision. And the one group that is  largely disillusioned are Gazans, who had hoped the ICJ might order immediate injunctive relief.

This post argues that those Gazans disappointed in the interim decision have it right because the ICJ’s order purports to recognize a right but declines to order a remedy. Here remedy refers to the injunctive relief South Africa requested in the form of a ceasefire. The disconnect between recognized right and absence of meaningful injunctive relief – remedy – makes the ICJ’s ruling conceptually problematic. This deprives the ruling of the rhetorical power that has been claimed for it.

The foundational idea of “no right without a remedy” is that if you bring a claim to a court (asserting a right) and the court doesn’t have a concrete way to address your claim (providing a remedy), then that right does not in fact exist. The conclusion derives from U.S. constitutional lore, specifically the 1803 Marbury v. Madison case that established the powerful governance function for the U.S. Supreme Court. 

Consider the rights asserted by South Africa and the actions taken by the ICJ. In December 2023 South Africa filed an “Application Instituting Proceedings” before the ICJ which characterized Israel’s military campaign in Gaza as genocidal. It requested a series of injunctive provisional measures, centrally a ceasefire. 

In its 26 January 2024 order, the ICJ recognized the horrific conditions in Gaza that South Africa’s filing and oral argument had highlighted. It cited statements by Israeli officials that could indicate genocidal intent. Based on these facts, it ruled that it is “plausible” that Israel is committing genocide in Gaza; that the situation is urgent; and that without intervention there is the possibility of “prejudice,” meaning damage, which could be genocide, destruction of evidence or both. These criteria are all necessary preconditions for the Court to act in the form of issuing provisional measures.

After recognizing the plausibility and urgency of South Africa’s claims, the ICJ issued five provisional measures. It did not order a ceasefire. Rather, it ordered Israel not to commit or incite genocide or to destroy evidence thereof, to enable humanitarian aid to Gazans, and to submit a report in one month’s time. 

The provisional measures fall short of a “remedy” because they do not enjoin Israel. Rather, they order Israel to do something it is already treaty bound to do: prevent genocide. The provisional measures ordered by the ICJ are mostly a rearticulation of Israel’s obligations under the Genocide Convention. Only the requirement that Israel make a report within one month is something that Israel is not already treaty-bound to do. And this report, for whatever its possible future value, does not constitute any kind of remedy for South Africa or Palestine because it does not do anything to end the present suffering in Gaza. Only a ceasefire had the possibility of remedying the rights that South Africa submitted to the ICJ for recognition, and this the ICJ explicitly declined to grant.

Some, including South Africa’s representatives, have argued that the provisional measures are effectively a ceasefire, because Israel cannot comply with them and continue to wage its aggressive war in Gaza. Given that Israel has increased the ferocity of its fighting, and observing the siege of Gaza’s last remaining hospital in the hours following the ICJ order, it would seem that Israel has not read the order this way. 

Israel’s ongoing pursuit of a “plausibly” genocidal war strategy highlights the problem the ICJ has set itself by issuing provisional measures that reiterate the treaty obligations they are made under. It is a tautology of sorts. The ICJ recognized that the events in Gaza meet the conditions for it to have jurisdiction over the case under the Genocide Convention, and then issued orders which enable further questions regarding whether the events in Gaza meet conditions as laid out in the Genocide Convention. 

This tautology is highlighted by recent events. Following the ICJ ruling, several Israeli government officials participated in a conference considering “voluntary migration” for Palestinians. The Guardian mused “The prominent role of government figures in the far-right conference appears to violate the international court of justice ruling.” Is calling for voluntary migration incitement or support of genocide? If yes, that would be a violation of the ICJ’s provisional measures. But also, of the Genocide Convention itself. This is an interpretive question that can only be known when the ICJ rules on the merits of South Africa’s application, which is likely several years away.  

The judicial legacy of the South Africa v Israel ruling on provisional measures may serve to weaken, not strengthen, the legacy of the court. Many international law commentators have celebrated the rhetorical, symbolic power in the world’s oldest court coming together to pronounce, 15 judges to 2, that Israel must not commit genocide. But as the people of Gaza continue to die today just as they did prior to the ruling, and as the possibility for conditions conducive to life continue to sharply deteriorate in the territory, the question of what the ICJ’s words “do”, the rhetorical (in)significance of the ICJ’s speech as act, is set in stark contrast. 

Legal experts have attached great significance to all that the ICJ said in its ruling. But the notion “no right without a remedy” demonstrates how words that do not, because they cannot, act ultimately become less meaningful. If the ICJ wants its decisions to remain relevant, then it must articulate them in ways that remedy the aggrieved.