Former UN High Commissioner for Human Rights;
Seventh Chancellor of the University of Guyana
Preventive and protective measures have a long history in English and Commonwealth law. In 1925, English legislation gave the Supreme Court of Judicature specific authority to “grant a mandamus or an injunction or appoint a receiver, by an interlocutory order in all cases in which it appears to the court to be just and convenient so to do.”
Even before this specific English legislation, in 1919, the Statute of the Permanent Court of International Justice, the predecessor to today’s World Court, gave it authority to issue interim measures of protection and it did so in a number of cases. A similar authority to issue interim measures of protection was given in 1945 to today’s World Court, and it also has ordered interim measures in several cases.
Specifically on the crime of genocide, the ICJ, in a case brought by Bosnia against Serbia, found Serbia responsible for failing to prevent Genocide by Serb forces in Bosnia, and specifically in Srebrenica. The Bosnia-Serbia case is the only one so far decided at the final stage. The ICJ has ordered interim measures of protection in a genocide case brought by Ukraine against Russia and in another case brought by the Gambia against Myanmar for persecution of the Rohingyas.
In the case brought by Ukraine against Russia, the ICJ, on 16 March, 2022, ordered as interim measures of protection that Russia “shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine” and that it “shall ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control or direction, take no steps in furtherance of the military operation…”
In the case of the Rohingyas, the ICJ, on 23 January, 2023, ordered Myanmar, 1. To take all measures within its power to prevent the commission of all acts of genocide. 2. To ensure that the military, as well as any irregular armed groups, organizations or persons under its control, do not commit acts of genocide. and 3. To prevent the destruction and ensure the preservation of evidence related to allegations of acts of genocide.
In its decision on South Africa’s application for interim measures of protection, delivered on 26 January, the ICJ has ordered Israel to take six interim measures of protection, which are summarised here: 1. To take all necessary measures to prevent the commission of genocide. 2. To ensure that Israeli armed forces do not commit genocidal acts. 3. To take all measures against the incitement of genocide. 4. To take immediate measures to improve the humanitarian situation, including through provision of foods and medicines, and to ensure the provision of basic services to the civilian population. 5. To ensure the preservation of data relevant to the future hearing of the case. 6. To report to the Court within one month on the efforts Israel is taking to comply with the orders of the Court.
It is noteworthy that the Court did not call on Israel for a cessation of hostilities. This may be considered a tacit recognition by the Court that Israel is engaged in a war of self-defence, following Hamas’s attack on it on 7 October. At the same time, the interim measures ordered by the Court essentially provide a framework to judge the legality of future Israeli actions. Israelis, and friends of Israel, should welcome this. Sometimes, in the heat of anger, one can go overboard. It takes one’s friends, in this instance the World Court, to help bring one back to civilized norms of conduct.
By way of background, it may be recalled that Hamas’s attack on Israel on 7 October 2023 murdered some 1200 people and took some 240 hostages. About 130 of these are still kept hostage. Israel’s counter-offensive against Hamas in Gaza has so far killed some 25,000 people, destroyed most of the homes and buildings in Gaza, and left some 2.3 million people homeless and defence-less. The figures are stark when compared: 1200 dead on one side, 25,000 on another; 240 hostages on one side and 2.3 million victims on the other side.
The Court’s decision is a truly historic one and is a victory for people of goodwill, including people in Israel and friends of Israel, who are morally anguished by the
prevailing situation in Gaza. The Court explicitly acknowledged the murderous attack carried out by Hamas in Israel on 7 October, expressed its grave concern over the plight of the hostages, and called upon Hamas to release the remaining 130 hostages immediately.
The Court recapitulated in moving terms statements from various international officials drawing attention to the plight of the civilian population in Gaza. These included statements from the UN Secretary-General, the Director-General of the WHO, the UN Humanitarian Relief Coordinator, the UN Commissioner for Relief and Rehabilitation in Palestine, the UN Committee on the Elimination of Racial Discrimination, and 37 UN Special Rapporteurs on human rights, all pleading for immediate protection for, and relief of the plight of, the civilian population of Gaza. All those officials can justifiably feel that their pleas have been recognized at last in the court of conscience.
It is significant that the Court recalled statements by three high-level Israeli officials essentially calling for, or complicit in, the destruction of the civilian population of Gaza. While the Court did not explicitly characterize them as being genocidal in intent, the Court was in effect serving notice that such statements came close to crossing the line. Other such statements had been cited by South Africa in its pleadings, but the Court did not include them in its invocation of reprehensible statements.
The Court’s order that Israel report to it within a month on the measures it is taking to comply with the interim measures is truly historic. It will be recalled that in a recent article in Stabroek News, we raised specifically this issue of the obligations of a government, under Article 51 of the UN Charter, to report on measures it says it is taking in pursuit of the right of self-defence. In ordering South Africa to report within a month, the Court has broken new ground in the international law on self-defence.
The Court reaffirmed that all parties to the conflict are bound by the norms of international humanitarian law, meaning both Hamas and Israel. This, also, is a significant statement when it comes to the application of international humanitarian law.
Finally, the Court reiterated that its orders of interim measures of protection are legally binding on South Africa – as indeed on any State to which it indicates interim measures of protection.
In international human rights law, interim measures of protection can be a valuable method of preventive protection practiced by international judicial and human rights bodies, including the International Court of Justice, the European Court of Human Rights, the Inter-American Court of Human Rights, the UN Human Rights Committee, the United Nations Committee against Torture, and the Inter-American Commission on Human Rights. Guyana is currently the recipient of an order of interim measures of protection issued by the Inter-American Commission on Human Rights.
In the words of J.M. Pasqualucci, writing on Interim Measure in International Human Rights Law, in the Vanderbilt Journal of International Law:
“[I]nterim measures may require that the State take positive action, such as providing protection for human rights activists or journalists, or it may call upon the State to refrain from taking action, such as not extraditing a person or delaying the execution of prisoners until their cases have been resolved before the international body. The purpose of interim measures in international human rights law is most often to protect the persons involved in a case from urgent danger of grave and irreparable injury.”
Interim measures of protection are legally binding on Governments ordered to take such measures. Their significance when it comes to allegations of genocide may be seen in the World Court’s Advisory Opinion of 28 May, 1951 on reservations to the Genocide Convention:
“The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as a ‘crime under international law’ involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations.”
In bringing this case to the World Court, South Africa has rendered a service to the world – and indeed to Israel itself, a nation that has declared its faith in the religiously-sanctified moral law. The final determination of whether genocide has taken place will only be known some years down the road, when the final decision is rendered.
But the interim measures of protection ordered by the World Court already provide a legal and a moral framework for the parties to the conflict and for the world. This has been a call to conscience in the court of conscience: South Africa’s call to Israel and the world. Africa’s call to the Orient. A call of conscience.
And now the World Court has called Israel, Hamas, and the world to conscience. The decision of the court is truly historic.
