SPEECH OF HE MR NAWAF SALAM, PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE,
AT THE SEVENTY-FIFTH SESSION OF THE INTERNATIONAL LAW COMMISSION
17 July 2024
Mr Chair,
Ladies and gentlemen,
Colleagues and friends,
It is a distinct honour for me to address the International Law Commission today, and to do so
for the first time in my capacity as President of the International Court of Justice. Out the outset, may
I take this opportunity to congratulate Mr Marcelo Vázquez-Bermúdez on his election as Chair of
the Commission for its illustrious seventy-fifth session and to congratulate all the newly elected
Officers as well.
I would also like to apologize for the many postponements of this meeting with you, due to
the Court’s particularly busy schedule over the last few months.
In my speech to you this morning, in keeping with custom, I will focus on providing an update
on the cases submitted to the Court over the last year and the decisions it has rendered since President
Donoghue’s address to you in July 2023. I know I speak on behalf of all of my fellow Members of
the Court when I say that we place great value on this annual exchange of views between our two
institutions. As an aside, I also note that we currently have six esteemed colleagues on the Bench
who are former members of the International Law Commission.
1
*
There are at present 24 cases on the Court’s docket, 21 of which are contentious and 3 are
advisory proceedings. The inter-State disputes cover diverse and wide-ranging legal issues, such as
land and maritime delimitation, the scope of jurisdictional and State immunities and alleged breaches
of obligations under an array of bilateral and international conventions. Two of the questions
submitted for an advisory opinion were submitted by the General Assembly and relate to the situation
1
Judges Tomka, Xue, Nolte, Gómez Robledo, Aurescu and Tladi.
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in the Occupied Palestinian Territory and to Climate Change; the third question was submitted by
the International Labour Organization and relates to the Right to Strike under ILO Convention No.
87.
Since July 2023, five new contentious cases have been added to the Court’s docket involving
States from Latin America, Asia, Africa and Europe
2
, as well as the aforementioned request for an
advisory opinion from the ILO
3
. The most recent contentious case was instituted by Ecuador against
Mexico on 29 April 2024 regarding the alleged misuse of the premises of a diplomatic mission. The
Court has held hearings dealing with requests for the indication of provisional measures and
preliminary objections to jurisdiction in seven contentious proceedings, as well as holding hearings
on one of the two questions submitted by the General Assembly for an advisory opinion by the
Court.
4
Following these hearings, the Court has already rendered its decision in five of the eight
cases
5
, details of which I shall shortly set out, and the other three cases are currently under
deliberation. In particular, the Court is deliberating, in the context of its advisory function, on the
question of the Legal Consequences arising from the Policies and Practices of Israel in the Occupied
Palestinian Territory, including East Jerusalem and, in the context of its contentious procedure, on
preliminary objections to jurisdiction in two separate sets of proceedings between Armenia and
Azerbaijan concerning Alleged Violations of the International Convention on the Elimination of All
Forms of Racial Discrimination.
*
2
July 2023: AVIA {briefly mentioned by President Donoghue}; December 2023: SAI; March 2024: NG; April 2024:
ME and EM
3
November 2023: ILO
4
September 2023: URB (preliminary objections); October 2023: CNLS (provisional measures); January and May
2024: SAI (provisional measures); February 2024: OPT (advisory proceedings); April 2024: NG (provisional measures),
ARAZ and AZAR (preliminary objections); April and May 2024: ME (provisional measures)
5
SAI Order of 26 January 2024 on request for provisional measures of 29 December 2023; URB Judgment on
preliminary objections of 2 February 2024; CNLS Order on request for provisional measures of 16 November 2023; NG
Order 30 April 2024 on the Request for the indication of provisional measures; ME Order of 23 May 2024 on request for
the indication of provisional measures; SAI Order of 24 May 2024 on request for the indication and modification of
provisional measures of 10 May 2024.
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In reviewing the decisions rendered by the Court, I shall begin with the Judgments delivered
6
,
before turning to the numerous substantive Orders issued in the course of the reporting period.
On 13 July 2023, the Court issued its Judgment on the merits in the case concerning the
Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200
nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia). In an earlier case between these
two States, the Court had rendered a Judgment in 2012 establishing, inter alia, a single maritime
boundary delimiting the continental shelf and the exclusive economic zones of Nicaragua and
Colombia up to the 200-nautical-mile limit from the baselines from which the territorial sea of
Nicaragua is measured. On 16 September 2013, Nicaragua filed an Application instituting new
proceedings.
Following the filing of the written pleadings on the merits, the case became ready for hearing.
In this context, the Court decided that, in the circumstances of the case, before proceeding to any
consideration of technical and scientific questions in relation to the delimitation of the continental
shelf between Nicaragua and Colombia beyond 200 nautical miles from the baselines from which
the breadth of the territorial sea of Nicaragua is measured, it was necessary to decide on certain
questions of law, after hearing the Parties thereon. Accordingly, by its Order of 4 October 2022, the
Court directed Nicaragua and Colombia to present their arguments at the oral proceedings in the case
exclusively with regard to two questions of law. The first question was whether, under customary
international law, a State’s entitlement to a continental shelf beyond 200 nautical miles from the
baselines from which the breadth of its territorial sea is measured may extend within 200 nautical
miles from the baselines of another State. The second question addressed the criteria under customary
international law for the determination of the limit of the continental shelf beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured and whether paragraphs 2
to 6 of Article 76 of the United Nations Convention on the Law of the Sea reflect customary
international law.
NICOLC Judgment on the merits of 13 July 2023; UR Judgment on the merits of 31 January 2024; and URB
Judgment on preliminary objections of 2 February 2024.
6
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The Court held oral proceedings on these questions of law in December 2022 and rendered its
Judgment in July 2023. In that Judgment, The Court concluded that, under customary international
law, a State’s entitlement to a continental shelf beyond 200 nautical miles from the baselines from
which the breadth of its territorial sea is measured may not extend within 200 nautical miles from
the baselines of another State. The Court went on to state that, in the absence of overlapping
entitlements over the same maritime areas, it could not proceed to a maritime delimitation.
The Court further stated that, within 200 nautical miles from the baselines of Colombia’s
mainland coast and of Colombia’s islands, there was no area of overlapping entitlement to be
delimited in the case. In addition, the Court considered the question of the maritime entitlements of
certain maritime features in the area.
*
On 31 January 2024, the Court issued its Judgment on the merits in the case concerning
Application of the International Convention for the Suppression of the Financing of Terrorism and
of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v.
Russian Federation). The proceedings in this case were instituted by Ukraine following events which
occurred from early 2014 in eastern Ukraine and in the Crimean peninsula. It should be noted at the
outset that the Court rejected the Russian Federation’s invocation of the “clean hands”-doctrine as a
defence on the merits, stating that it considered that this doctrine could not be applied in an inter-
State dispute where the Court’s jurisdiction is established, and the application is admissible.
With regard to the claims of Ukraine under the International Convention for the Suppression
of the Financing of Terrorism, to which I shall refer as the “ICSFT”, the Court clarified that only
monetary or financial resources provided or collected for use in carrying out acts of terrorism may
provide the basis for the offence of terrorism financing. As for the alleged non-compliance by the
Russian Federation with its obligations under specific Articles of the ICSFT to freeze certain funds,
to prosecute or extradite alleged offenders of terrorism financing offences, to assist other States
parties in their investigations into terrorism financing and to take practicable measures to prevent the
movement of “funds” into Ukraine for purposes of terrorism financing, the Court considered that it
had not been established by the Applicant that the Russian Federation had violated its obligations
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under the Convention. However, the Court did find that the Russian Federation had violated its
obligations to investigate allegations of the commission of terrorism financing offences by alleged
offenders present in its territory.
With regard to the claims of Ukraine under the International Convention on the Elimination
of All Forms of Racial Discrimination, to which I shall refer as “CERD”, the Court indicated that it
was not called upon to determine whether violations of obligations under CERD had occurred in
individual instances but, rather, whether a “pattern of conduct” could be established.
The Court examined in detail the alleged violations by the Russian Federation of various
provisions of CERD with regard to disappearances, murder, abductions and torture, law enforcement
measures, including measures taken against the Mejlis, the body representing the Tatar community
in Crimea. Further, the Court examined measures relating to citizenship, measures taken with respect
to culturally significant gatherings, to media outlets and measures concerning cultural heritage and
cultural institutions of Crimean Tatar and ethnic Ukrainians in Crimea. The Court found that it had
not been established that the Russian Federation had violated its obligations under CERD.
Finally, the Court examined whether the conduct of the Russian Federation with regard to
school education in Crimea qualified as racial discrimination under CERD. After examining the
legislative and other practices of the Russian Federation regarding school education in the Ukrainian
language in Crimea, the Court concluded that the Russian Federation had violated its obligations
under CERD by the way in which it had implemented its educational system in Crimea after 2014
with regard to school education in the Ukrainian language. In particular, the Russian Federation had
not demonstrated that it had complied with its duty to protect the rights of ethnic Ukrainians from a
disparate adverse effect based on their ethnic origin by taking measures to mitigate the pressure
resulting from the exceptional [I quote] “reorientation of the Crimean educational system towards
Russia” [end of quote] on parents whose children had until 2014 received their school education in
the Ukrainian language.
The Court then considered the submission of Ukraine that the Russian Federation had breached
the Court’s Order of 19 April 2017 indicating provisional measures. The Court found that, by
maintaining the ban on the Mejlis, the Respondent had violated that Order, while observing that this
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finding was made independently from the Court’s finding on the merits that the ban on the Mejlis
did not violate the Russian Federation’s obligations under CERD. As to the availability of education
in the Ukrainian language, the Court found that, while Ukraine had shown that a sharp decline in
teaching in the Ukrainian language took place after 2014, it had not been established that the Russian
Federation had acted in breach of the Order on provisional measures. In particular, the Court took
note of a report by the Office of the United Nations High Commissioner for Human Rights (OHCHR)
on the situation of human rights in the temporarily occupied Autonomous Republic of Crimea and
city of Sevastopol during the period in question which confirmed that instruction in the Ukrainian
language was available after the adoption of the Order. Finally, the Court considered that the Russian
Federation, by recognizing the so-called “Donetsk People’s Republic” and “Luhansk People’s
Republic” as independent States and by launching what it called a “special military operation” against
Ukraine, had severely undermined the basis for mutual trust and co-operation and thus made the
dispute more difficult to resolve, in violation of the Court’s Order of 19 April 2017.
*
On 2 February 2024, the Court issued its Judgment on the preliminary objections raised by the
Russian Federation in the case concerning Allegations of Genocide under the Convention on the
Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States
intervening). You may recall that, on 26 February 2022, Ukraine filed an Application against the
Russian Federation concerning a dispute under the Genocide Convention. On 3 October 2022, the
Russian Federation raised preliminary objections to jurisdiction and admissibility. In its Judgment,
the Court explained that the dispute between the Parties comprised two aspects. The first one
concerned Ukraine’s request for a declaration that no genocide attributable to it was committed in
the Donbas; the second one concerned the compatibility of the actions of the Russian Federation,
including use of force in and against Ukraine, with its obligations under the Genocide Convention.
The Court concluded that it had jurisdiction under the Genocide Convention to entertain the
first aspect of the dispute, and that Ukraine’s request for a declaration that it was not responsible for
a breach of its obligations under the Genocide Convention was admissible. Of particular note in this
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regard is the Court’s finding that Article IX of the Genocide Convention does not preclude the
possibility for a State to seek a declaration that it is not responsible for committing genocide. In
assessing the admissibility of Ukraine’s request in the present case, the Court took account of the
fact that the request was made in the context of an armed conflict between the Parties and that the
Russian Federation had taken the measures complained of by Ukraine with the stated purpose of
preventing and punishing genocide allegedly committed by Ukraine in the Donbas region. In such a
special context, the Court recognized the legal interest of Ukraine in obtaining a declaration that it
had not breached its obligations under the Genocide Convention, and its request was found
admissible.
However, the Court found that it did not have jurisdiction to decide the second aspect of the
dispute between the Parties, i.e. Ukraine’s claims that the Russian Federation’s use of force in and
against Ukraine beginning on 24 February 2022 and its recognition of the so-called “Donetsk
People’s Republic” and “Luhansk People’s Republic” on 21 February 2022 violated Articles I and
IV of the Genocide Convention. The Court found that, even if the acts of the Russian Federation
complained of by Ukraine were fully established, they would not constitute a violation of obligations
under the Genocide Convention, and therefore the Court could not have jurisdiction under that
Convention. The Court explained that Ukraine was not claiming that the Russian Federation had
refrained from taking measures to prevent or punish a genocide, and that, in these circumstances, it
was difficult to see how the conduct complained of could constitute a violation of obligations to
prevent genocide and punish perpetrators of genocide. The Court was also not convinced that the
alleged invocation in bad faith of the Genocide Convention by the Russian Federation could
constitute a violation of obligations under Articles I and IV. Nor could the alleged violation by the
Russian Federation of other international rules, such as the rules on the use of force, constitute a
violation of the Genocide Convention, since that Convention did not incorporate other such rules of
international law.
I should add that a particularity of this case is the fact that 33 States filed Declarations of
Intervention under Article 63 of the Statute. I will explain a little further on the procedure by which
the Court decided on the admissibility of these Declarations. Suffice to say that in its Judgment, the
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Court rejected the Russian Federation’s preliminary objection to the admissibility of Ukraine’s
Submission based on abuse of process. By this objection, the Respondent had argued, inter alia, that
Ukraine had sought to rally States to arrange an abusive mass intervention in the case, in an attempt
to put pressure on the Court.
* *
I shall now move to some of the significant Orders issued by the Court
7
.
In this regard, I note, as an aside, that there has been a noticeable increase in the number of
incidental proceedings being submitted to the Court, in particular requests for the indication of
provisional measures, which are then given priority over other cases. While the Court understands
the importance and value of this expedited procedure, which aims to offer urgent interim relief to
Parties when there is a risk of escalation, it also wishes to stress that it is a procedure that should not
be used as a litigation tactic to advance arguments on the merits.
Turning back to the substantive Orders under review, I will start by referring back to the
Declarations of Intervention during the preliminary objections phase of the case concerning
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation: 32 States intervening). By an Order rendered on 5 June
2023, the Court decided on the admissibility of these Declarations of Intervention which, I recall,
were submitted under Article 63 of the Statute. This provision grants State parties to a convention a
right to intervene in a case when the construction of that convention is in question. These 33 States,
all parties to the Genocide Convention, sought to intervene to present observations on the
construction of Article IX, which is the compromissory clause of that instrument, and of other
URB Order of 5 June 2023 on the admissibility of the Declarations of Intervention under Article 63 of the Statute;
ARAZ Order of 6 July 2023 on the Request for the modification of the Order of 22 February 2023 indicating a provisional
measure; CNLS Order of 16 November 2023 on the Request for the indication of provisional measures; ARAZ Order of 17
November 2023 on the Request for the indication of provisional measures; GV Order of 1 December 2023 on the Request
for the indication of provisional measures; SAI Order of 28 March 2024 on the Request for the modification of the Order
of 26 January 2024 indicating provisional measures; NG Order of 30 April 2024 on the Request for the indication of
provisional measures.
7
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provisions relevant to the jurisdiction of the Court. Some of these States also sought to present
observations on provisions of the Genocide Convention relating to the merits of the case.
The Russian Federation had raised objections to the admissibility of all of the Declarations of
Intervention. By its Order of 5 June 2023, the Court considered these objections and decided that the
Declarations of Intervention submitted by 32 States were admissible at the preliminary objections
stage of the proceedings in so far as they concerned the construction of Article IX and other
provisions of the Genocide Convention relevant for the determination of the jurisdiction of the Court.
In particular, the Court explained that its task in determining the admissibility of a Declaration of
Intervention under Article 63 of the Statute was limited to ascertaining whether that Declaration
related to the construction of provisions in question at the relevant stage of the proceedings. The
Court found that, in the case at hand, the construction of Article IX and other provisions concerning
the Court’s jurisdiction ratione materiae was in question at the preliminary objections stage of the
proceedings, and thus the parts of the Declarations addressing the construction of these provisions
were admissible at that stage. The Court added that it would not, at the preliminary objections stage,
have regard to any part of the written or oral observations of intervening States going beyond the
construction of provisions in question at that stage.
In the 5 June 2023 Order, the Court also upheld an objection raised by the Russian Federation
with respect to the admissibility of the Declaration of Intervention filed by the United States, on the
basis that the United States had entered a reservation to Article IX of the Genocide Convention. The
Court held that the United States could not intervene in relation to the construction of Article IX of
the Convention while it was not bound by that provision. Nor could it intervene in relation to the
construction of any other provision that could, at the preliminary objections stage, only be relevant
to the jurisdiction of the Court under Article IX. Accordingly, the Declaration of Intervention of the
United States was found to be inadmissible in so far as it concerns the preliminary objections stage
of the proceedings.
Following the issuance of the Court’s Order on 5 June 2023, most of the States whose
Declarations of Intervention were found admissible at the preliminary objections stage availed
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themselves of the right, pursuant to the Rules of Court, to file written observations and to present
oral observations during the hearings on the preliminary objections of the Russian Federation.
*
I now turn to the two Orders relating to provisional measures rendered on 6 July 2023 and 17
November 2023 in the case concerning Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan). The Applicant in this
case alleges breaches of this Convention, which I will again refer to as “CERD”, with regard to
persons of Armenian national or ethnic origin, carried out during and after hostilities in the
Nagorno-Karabakh region that erupted in autumn 2020.
The first Order relates to Armenia’s request for the modification of an earlier Order dated 22
February 2023 in which the Court had ordered Azerbaijan to take all measures at its disposal to
ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor, which links
Nagorno-Karabakh and Armenia. In particular, Armenia contended that this Order needed to be
modified because of what it characterised as a significant new impediment to movement along the
Lachin Corridor as a result of the alleged establishment of two military checkpoints by Azerbaijan.
In its Order of 6 July 2023, the Court considered that, even if it could be said, in light of these
developments, that there had been a change in the situation that existed when the Court issued its
22 February 2023 Order, Armenia’s request still concerned allegations of disruption in movement
along the Lachin Corridor. The consequences of any such disruption for persons of Armenian
national or ethnic origin would be the same as those noted by the Court in its earlier Order. Therefore,
the Court found that the circumstances were not such as to require the exercise of its power to modify
that Order.
On 29 September 2023, Armenia submitted a new Request for the indication of provisional
measures
8
in which it alleged that Azerbaijan had launched a military assault on the ethnic Armenian
It is recalled that previously in this case, Armenia submitted, together with its Application, a first Request for the
indication of provisional measures on 16 September 2021 (disposed of by an Order of the Court dated 7 December 2021),
followed by a Request made on 16 September 2022 for the modification of the Order of 7 December 2021 indicating
provisional measures (disposed of by an Order of the Court dated 12 October 2022), followed by a further Request for the
indication of provisional measures on 27 December 2022 (disposed of by an Order of the Court dated 22 February 2023).
8
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population of Nagorno-Karabakh on 19 September 2023, resulting in the forcible displacement of
tens of thousands of ethnic Armenians. Armenia thus requested urgent interim measures of protection
for that population. In its Order of 17 November 2023, the Court indicated three provisional
measures. First, Azerbaijan was directed to ensure, in accordance with its obligations under CERD,
that persons who had left Nagorno-Karabakh after 19 September 2023 and who wished to return
home were able to do so in a safe, unimpeded and expeditious manner; that persons who had
remained in Nagorno-Karabakh after that date and who wished to depart were able to do so in the
same safe manner; and that persons wishing to stay in Nagorno-Karabakh were free from the use of
force or intimidation that may cause them to flee. Secondly, Azerbaijan was directed to protect and
preserve registration, identity and private property documents and records that concerned the persons
affected by the events of 17 November 2023. Thirdly, Azerbaijan was instructed to submit a report
to the Court on the steps taken to give effect to the provisional measures indicated.
*
I now turn to the Order on provisional measures delivered by the Court on 16 November 2023
in the case concerning Application of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian Arab Republic). The
joint Applicants instituted these proceedings on 8 June 2023, alleging that the Syrian Government
has been responsible, at least since 2011, for systematic violations of its obligations under the
Convention against Torture. The Application was accompanied by a Request for the indication of
provisional measures. In particular, Canada and the Netherlands stated that urgent measures were
needed in order to protect the lives and physical and mental integrity of individuals within Syria who
were being subjected to torture and other cruel, inhuman or degrading treatment or punishment, or
were at imminent risk of being subjected to such treatment.
In its Order of 16 November 2023, the Court ordered the Syrian Arab Republic, in accordance
with its obligations under the Convention against Torture, to take all measures within its power to
prevent acts of torture and other cruel, inhuman or degrading treatment or punishment and ensure
that its officials, as well as any organizations or persons which may be subject to its control, direction
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or influence, did not commit any acts of torture or other acts of cruel, inhuman or degrading treatment
or punishment. The Court further ordered that the Respondent take effective measures to prevent the
destruction and ensure the preservation of any evidence related to allegations of acts within the scope
of the Convention against Torture.
*
Shortly after the delivery of this Order, on 1 December 2023, the Court issued another Order
on provisional measures in the case concerning Arbitral Award of 3 October 1899 (Guyana v.
Venezuela). By way of background, let me recall that this case was instituted in 2018 and that it is
currently at the merits phase, the Court having already pronounced itself on questions relating to
jurisdiction and admissibility. On 30 October 2023, Guyana filed a Request for the indication of
provisional measures due to its concern over the Government of Venezuela’s stated intention to hold
a so-called “Consultative Referendum” on 3 December 2023 regarding the purported creation, on a
unilateral basis, of the State of “Guayana Esequiba” within Venezuela, comprising the territory at
issue in the current proceedings.
In its Order of 1 December 2023, the Court stated that, in light of the strong tension that
characterized the relations between the Parties, it considered that the conduct of Venezuela – in
organizing such a referendum and the assertions made that it would take concrete action on the basis
of the results of that referendum – presented a serious risk of Venezuela acquiring and exercising
control and administration of the territory in dispute, which is currently administered by Guyana in
its totality. The Court therefore directed Venezuela to refrain from taking any action, pending a final
decision in the case, which would modify the situation that currently prevails in the territory in
dispute. The Court further instructed both Parties to refrain from any action which might aggravate
or extend the dispute or make it more difficult to resolve.
*
I now turn to three Orders delivered by the Court in the case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South
Africa v. Israel).
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South Africa filed this case on 29 December 2023, alleging that Israel, in conducting military
operations in and against Gaza in the wake of the attack in Israel by Hamas on 7 October 2023, has
breached and continues to breach its obligations under the Genocide Convention. According to South
Africa, provisional measures were necessary in order to protect against further, severe and irreparable
harm to the rights of the Palestinian people and to ensure Israel’s compliance with its obligations
under the Genocide Convention. In its Order of 26 January 2024, the Court noted with deep concern
that the population in Gaza was extremely vulnerable, pointing out that the military operation
conducted by Israel after 7 October 2023 had resulted, inter alia, in tens of thousands of deaths and
injuries and the destruction of homes, schools, medical facilities and other vital infrastructure, as well
as displacement on a massive scale. The Court expressed its alarm at the fact that many Palestinians
in the Gaza Strip had no access to the most basic foodstuffs, potable water, electricity, essential
medicines or heating.
In the operative clause of its Order, the Court directed Israel to take all measures within its
power to prevent the commission of all acts within the scope of Article II of the Genocide
Convention, to ensure with immediate effect that its military did not commit any acts described in
the first operative paragraph; to take all measures within its power to prevent and punish the direct
and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza
Strip; to take immediate and effective measures to enable the provision of urgently needed basic
services and humanitarian assistance to address the adverse conditions of life faced by Palestinians
in the Gaza Strip; to take effective measures to prevent the destruction and ensure the preservation
of evidence related to allegations of acts within the scope of Article II and Article III of the Genocide
Convention against members of the Palestinian group in the Gaza Strip; and to submit a report to the
Court on all measures taken to give effect to this Order within one month as from the date of the
Order.
By a letter dated on 12 February 2024, South Africa submitted to the Court what it referred to
as an “Urgent Request for additional measures under Article 75, paragraph 1, of the Rules of Court”.
In particular, the Applicant argued that the developing circumstances in Rafah required the Court to
exercise its power under that provision. By a letter from the Registrar dated 16 February 2024, the
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Parties were informed of the Court’s decision. The Court stated that the recent developments in the
Gaza Strip, and in Rafah in particular, demanded immediate and effective implementation of the
provisional measures indicated by the Court in its Order of 26 January 2024, which were applicable
throughout the Gaza Strip, including in Rafah, and did not demand the indication of additional
provisional measures. The Court also emphasized that Israel remained bound to fully comply with
its obligations under the Genocide Convention and with the said Order, including by ensuring the
safety and security of the Palestinians in the Gaza Strip.
On 6 March 2024, South Africa filed a further Request for the indication of additional
provisional measures and/or the modification of measures previously indicated by the Court in its
Order 26 January 2024, based on the alleged change in the situation in Gaza since the indication of
the first set of provisional measures. In its Order of 28 March 2024, the Court found that the desperate
level of food insecurity in the Gaza Strip and the fact that famine was setting in constituted a change
in the situation which existed when the Court adopted its Order in January. As the provisional
measures indicated therein did not fully address the consequences arising from this change in
situation, their modification was thus justified. In the operative clause, the Court reaffirmed the
provisional measures indicated in its Order of 26 January 2024 and indicated additional measures. In
particular, it directed Israel, in conformity with its obligations under the Genocide Convention, and
in view of the worsening conditions of life faced by Palestinians in Gaza, in particular the spread of
famine and starvation, to take all necessary and effective measures to ensure, without delay, in full
co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently
needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter,
clothing, hygiene and sanitation requirements, as well as medical supplies and medical care to
Palestinians throughout Gaza, including by increasing the capacity and number of land crossing
points and maintaining them open for as long as necessary. It also directed Israel to ensure with
immediate effect that its military did not commit acts which constitute a violation of any of the rights
of the Palestinians in Gaza, including by preventing, through any action, the delivery of urgently
needed humanitarian assistance. In addition, Israel was ordered to submit a report to the Court on all
measures of compliance taken, within one month as from the date of the Order.
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On 10 May 2024, South Africa submitted to the Court another urgent Request for the
modification and indication of provisional measures, aimed, inter alia, at halting Israel’s military
offensive in Rafah and ensuring the unimpeded access to Gaza of United Nations and other officials
engaged in the provision of humanitarian aid and assistance. In its Order of 24 May 2024, the Court
reaffirmed the provisional measures indicated in its Orders of 26 January 2024 and 28 March 2024,
and indicated additional measures. In particular, it directed Israel, in conformity with its obligations
under the Genocide Convention, and in view of the worsening conditions of life faced by civilians in
the Rafah Governorate, to immediately halt its military offensive, and any other action in the Rafah
Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring
about its physical destruction in whole or in part. Israel was also directed to maintain open the Rafah
crossing for unhindered provision at scale of urgently needed basic services and humanitarian
assistance; and to take effective measures to ensure the unimpeded access to the Gaza Strip of any
commission of inquiry, fact-finding mission or other investigative body mandated by competent
organs of the United Nations to investigate allegations of genocide. Finally, Israel was ordered to
submit a report to the Court on all measures of compliance taken, within one month as from the date
of the Order.
In all three Orders, the Court expressed its grave concern over the fate of the hostages abducted
during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups,
and called for their immediate and unconditional released.
*
I turn now to the Court’s Order of 30 April 2024 on the Request for the indication of
provisional measures submitted by Nicaragua on 1 March 2024, together with its Application
instituting proceedings against Germany, in the case concerning Alleged Breaches of Certain
International Obligations in respect of the Occupied Palestinian Territory. The Applicant in this
case states that every Contracting Party to the Genocide Convention has a duty under that Convention
to do everything possible to prevent the commission of genocide and alleges that Germany, by
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providing political, financial and military support to Israel and by defunding the United Nations
Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), is facilitating the
commission of genocide and has failed in its obligation to do everything possible to prevent the
commission of genocide. In its Request for the indication of provisional measures, Nicaragua argued
that interim measures of protection were urgently needed to ensure that Germany suspended its
military assistance to Israel in so far as this aid was used or could be used to commit or to facilitate
serious violations of the Genocide Convention occurring in the Gaza Strip and that it resumed its
support of UNRWA, having announced its decision to suspend its financial contributions on 27
January 2024. In reaching its decision on Nicaragua’s Request, the Court, in its Order, took into
account a range of factors, including Germany’s assertions regarding its national legal framework
governing the manufacturing, marketing and export of weapons and other military equipment, as
well as the apparent decrease since November 2023 in the value of material for which licences to
export arms to Israel had been granted by the German Government. With regard to Germany’s
decision to suspend its support of UNRWA in respect of its operations in Gaza, the Court observed,
first, that contributions to UNRWA were voluntary in nature. Secondly, it noted that, according to
the information provided to it by Germany, no new payment was due from the latter in the weeks
following the announcement of its decision. Finally, the Court noted that Germany had stated that it
had supported initiatives aimed at funding the agency’s work, as well as providing financial and
material support to other organizations operating in the Gaza Strip.
In conclusion, based on the factual information and legal arguments presented by the Parties,
the Court found that, at present, the circumstances were not such as to require the exercise of its
power under Article 41 of the Statute to indicate provisional measures.
Before doing so, however, the Court recalled that, in its Order on provisional measures of 26
January 2024 in the South Africa v. Israel case, it noted that the military operation conducted by
Israel following the attack of 7 October 2023 had resulted in [I quote] “a large number of deaths and
injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority
of the population, and extensive damage to civilian infrastructure” [end of quote]. The Court further
stated, in its Order in the Nicaragua v. Germany case, that it remained deeply concerned about the
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catastrophic living conditions of the Palestinians in the Gaza Strip. It recalled that, pursuant to
common Article 1 of the Geneva Conventions, all States parties were under an obligation “to respect
and to ensure respect” for the Conventions “in all circumstances”. It followed from that provision
that every State party to these Conventions, [I quote] “whether or not it is a party to a specific conflict,
is under an obligation to ensure that the requirements of the instruments in question are complied
with” [end of quote]. Moreover, the Court considered it particularly important to remind all States
of their international obligations relating to the transfer of arms to parties to an armed conflict, in
order to avoid the risk that such arms might be used to violate the above-mentioned Conventions. All
these obligations were incumbent upon Germany as a State party to the said Conventions in its supply
of arms to Israel.
*
Now, I come to the Court’s Order of 23 May 2024 on the Request for the indication of
provisional measures filed by Mexico, together with its Application of 11 April 2024, in the case
concerning the Embassy of Mexico in Quito (Mexico v. Ecuador). This case relates to events that
occurred on 5 April 2024, when armed members of the Ecuadorian security forces entered the
Mexican Embassy without the authorization of the Head of Mission, restrained the Deputy Chief of
Mission and forcibly removed from the premises Mr Glas Espinel, former Vice-President of Ecuador,
who had been granted political asylum by Mexico. In its Request, Mexico asked the Court, inter alia,
to order Ecuador to refrain from acting against the inviolability of the premises of the Mission and
the private residences of Mexico’s diplomatic agents, and to take appropriate measures to protect and
respect them, as well as the property and archives therein. In its examination of the Request, the
Court took into account assurances provided by Ecuador to Mexico in writing and also during the
hearing held on 1 May 2024 that it would, in accordance with the Vienna Convention on Diplomatic
Relations and other relevant rules of international law, provide full protection and security to the
premises, property and archives of the diplomatic mission of Mexico in Quito, and would allow
Mexico to clear the premises of that mission and the private residences of its diplomatic agents. The
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Court considered that the assurances given by Ecuador encompassed the concerns expressed by
Mexico in its Request. With regard to those assurances, the Court reiterated that unilateral
declarations can give rise to legal obligations, that interested States may place confidence in them,
and are entitled to require that the obligation thus created be respected. The Court further reiterated
that once a State has made such a commitment concerning its conduct, its good faith in complying
with that commitment is to be presumed.
In light of the above, the Court considered that there was at that given time no urgency, in the
sense that there was no real and imminent risk of irreparable prejudice to the rights claimed by the
Applicant.
The Court observed that the conditions for the indication of provisional measures identified in
its jurisprudence were cumulative. Therefore, having found that one such condition had not been
met, the Court was not required to examine whether the other conditions were satisfied.
The Court concluded that the circumstances, as they presented themselves to it at that point in
time, were not such as to require the exercise of its power under Article 41 of the Statute to indicate
provisional measures.
The Court nonetheless emphasized the fundamental importance of the principles enshrined in
the Vienna Convention on Diplomatic Relations. It recalled in particular that there is no more
fundamental prerequisite for the conduct of relations between States than the inviolability of
diplomatic envoys and embassies.
*
Finally, I turn to the Court’s Order of 3 July 2024 on the admissibility of the declarations of
intervention filed by seven States under Article 63 of the Statute in the case concerning Application
of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar).
Let me recall that the case was instituted by The Gambia against Myanmar in November 2019
for alleged violations by the latter of its obligations under the Genocide Convention through acts
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adopted, taken and condoned by its Government against members of the Rohingya group. The Court
indicated provisional measures in 2020 and, by a Judgment of 22 July 2022, it found that it had
jurisdiction on the basis of Article IX of the Genocide Convention to entertain the Application filed
by The Gambia, and that the said Application was admissible.
On 15 November 2023, the Maldives filed a declaration of intervention in the case, with
reference to Article 63 of the Statute of the Court. On the same date, a joint declaration of intervention
was filed, pursuant to the same provision, by Canada, Denmark, France, Germany, the Netherlands
and the United Kingdom. Myanmar objected to the admissibility of these declarations of intervention.
By its Order of 3 July 2024, the Court decided that the declarations of intervention under
Article 63 of the Statute submitted were admissible in so far as they concerned the construction of
provisions of the Genocide Convention.
The Court recalled that intervention under Article 63 of the Statute involved the exercise of a
right by a State party to a convention the construction of which was in question before the Court, and
that the object of such an intervention was limited to the construction of the specific convention under
consideration in a given case. The Court found that the declarations of intervention submitted in The
Gambia v. Myanmar case mainly concerned the construction of Articles I, II, IV, V and VI of the
Genocide Convention – provisions which are in question at the current merits stage of the
proceedings. The Court observed that, although these declarations in some instances addressed
matters other than the construction of provisions of the Genocide Convention, such as facts and the
evidentiary value of a certain category of documents, it would not consider such issues and expected
the interveners to refrain from addressing them any further.
*
Mr Chair, this concludes my brief account of the recent decisions of the Court during a year
of intense judicial activity. It has been a privilege for me to address you today for the first time since
my election as President of the Court, which happily coincides with seventy-fifth anniversary of the
Commission. I now look forward to engaging in an enriching discussion with the members of the
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Commission. It is my sincere belief that this yearly tradition, that allows our two institutions to share
ideas in a collegial setting, is key to maintaining our close links, as we endeavour, in a complementary
manner, to forward the aims of the United Nations and to promote the international rule of law.
I thank you for your kind attention.
___________
Speech of HE Judge Nawaf Salam, President of the International Court of Justice, at the seventy-fifth session of the International Law Commission