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Request for “Clarification” or “Modification” of the Provisional Measures Orders: Different Paths, Same Destination?

Hoca

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Within three months of instituting proceedings against Israel in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip, South Africa made three requests for provisional measures (here and here): the first request led to the indication of six provisional measures (Order of 26 January 2024 (“first Order”)), the second was refused by the International Court of Justice (“the Court”) (Decision of 16 February 2024), and the third resulted in the indication of new measures as well as some modifications of the Court’s previous Order (Order of 28 March 2024 (“second Order”)).

In the third request, South Africa sought the “indication, clarification and/or modification” of some of the measures indicated in the first Order (Request, para 17). While Articles 75 and 76 of the Rules of Court (“the Rules”) allow the Court to indicate provisional measures and to subsequently modify or revoke such measures, the Rules are devoid of express provisions concerning requests for clarification of provisional measures indicated. Neither did South Africa’s request explain the legal basis for requesting clarification, nor did the Court’s Order address this specific request. The Court considered South Africa’s request as a request for modification and considered whether there had been a change in the situation since the first Order to accept this request (Request, paras 13 and 17). Relying on its authority under Article 75, paragraph 2 of the Rules, the Court indicated measures not identical to those sought by South Africa (second Order, paras 42-43).

Against this background, questions arises about the legal basis for requesting clarification of previous orders and about the difference between a request for clarification and one for modification. Notably, is a request for clarification the same as interpretation, or is it simply a request to modify the order using clearer and more specific words and phrases?

“Clarification” through “Modification”?

In accordance with Article 76, paragraph 1, of the Rules of Court, a party seeking to modify a previous order of the Court must demonstrate a “change in the situation” that would justify the modification. Even if such a change is established, the Court will further assess whether the general conditions set forth in Article 41 of the Statute of the Court are met in the new situation. [second Order, para. 23]. South Africa managed to successfully convince the Court that conditions set forth in both the Statute and Rules are met. The Court, in turn, while modifying some of the previously ordered measures, also provided additional details with regard to certain phrases that it used in its first Order.

For instance, the first Order provides that Israel:​

hall 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.”




In the second Order, the Court modified this measure and, among other things, clarified the scope of the phrase “urgently needed basic services and humanitarian assistance” by holding that:​

“[t]ake 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.” (Emphasis added)​

The Court also modified operative paragraph 2 of the first Order, where it stated that Israel shall ensure that its military does not commit any acts described in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”). In the second Order, the Court modified this part by stating that Israel shall ensure that its military does not commit acts that would be considered a violation under the Genocide Convention with respect to Palestinians, “including by preventing, through any action, the delivery of urgently needed humanitarian assistance.” Thus, the Court has now made it clear that “prevention, through any action, of the delivery of urgently needed humanitarian assistance” constitutes an act that can be considered a violation of the Genocide Convention.

In the absence of a definitive interpretation of the term “modification” in the case law, the second Order suggests, at a minimum, that modifications under Rule 76 may entail some degree of elaboration or the provision of additional details or specificity with regard to the original order. This, of course, stands in contrast to what might have been presumed so far, namely that modification is a partial revocation of the previous order (here, p. 1179 and here, p. 199).

However, does a request for modification constitute the sole avenue for achieving some level of elucidation regarding the prior order? Alternatively, can the parties ask the Court to interpret/clarify its order instead?

The Power of the Court to Allow Requests for Clarification

Disagreements regarding the meaning of a provisional measure indicated by the Court can arise between the parties. In South Africa v Israel, Judge Charlesworth’s Declaration, in the second Order, indicates that “subparagraph (2) (b) of the operative paragraph is drafted in such opaque terms that it fails to provide clear guidance to the Parties.” Thus, it is essential that the parties have the ability to seek clarification from the Court.

There is no provision in the Statute or the Rules addressing this issue. However, the Court’s power over the procedure extends beyond what is expressly stated in the aforementioned instruments. The Court enjoys an inherent power to fill gaps in the Rules (as codified by Article 30 of the Statute) and to make procedural orders for the conduct of the case (as codified by Article 48 of the Statute). Therefore, the Court, based on this power, can allow parties to seek clarification from the order (Cf. here, p.786).

Beyond that, it seems that there are compelling reasons as to why the Court should allow such requests.

The first argument centers on the very purpose of allowing courts to indicate provisional measures. Provisional measures are issued to urgently safeguard the subject-matter of the dispute. If the Court’s order is unclear for the parties involved, they may not act in the way that the Court expected them to, which may result in the entire purpose of this urgent proceeding being fruitless and the rights of the party seeking an order not being protected. Indeed, the significance of clarifying measures indicated is magnified in disputes where fundamental rights are at stake, such as protecting a group from genocidal acts.

The second argument relies on the binding nature of provisional measures orders, as held by the Court in the LaGrand case. In this regard, orders indicating provisional measures are not different from the Court’s judgments. Just as obscurity in a binding judgment can hinder its implementation, so can obscurity in a binding order. The Court should offer the parties before it an opportunity to seek clarification on their obligations when there is disagreement over the meaning and scope of the order’s provisions. Opportunity should be given to the parties when they still have time to comply with the order, before the issuance of a judgment where the Court will declare a party—who misinterpreted the order—non-compliant.

Despite these reasons, one may argue that this procedural option would open the floodgates for bad faith litigants looking to slow down proceedings and hinder the proper functioning of the Court. However, while this argument may have some value, the inadmissibility of clarification requests might not necessarily lead to a more streamlined process. Without a clarification process, the requesting party, desperate to prevent harm to its rights, might resort to the indication of new or modification of old measures. Consequently, the Court would have to prioritize these requests, allowing at least one round of written submissions and potentially oral proceedings, depending on the issue at hand.

Impossibility of Modification through Clarification Requests

As observed above, the Court is the master of its own procedure. The Court is, of course, fully entitled to determine freely the procedure for resolving the request for clarification from its orders. But it seems that the Court can draw an analogy with the requirement for admitting interpretation of judgments enshrined in Article 60 of the Statute. The Court has confirmed that the request for interpretation should solely aim to obtain clarification of judgments, not to prompt the Court to rule on issues left undecided in the original judgment (here, para 55.). The same is true for provisional measures orders, i.e., the request for clarification from orders would not be a suitable avenue for asking the Court to indicate additional measures or changes in the previous measures. This may discourage any party in a similar situation to South Africa’s. South Africa aimed not only to clarify but to change the Court’s previous Order. A simple request for interpretation seemed insufficient to achieve its desired outcome in this case. Thus, the best strategy was to seek modification, because, unlike interpretation, modification results in a change to the order’s content.

Another possible drawback of using the request for interpretation instead of modification is that the other party might announce that it has no disagreement with the meaning or scope attributed to the order by the requesting party. For instance, as described earlier, the Court has modified the operative paragraph of the Order of 26 January 2024 by delineating the scope of “basic services” and “humanitarian assistance.” An alternative approach to achieving the same outcome could have been a request for interpretation; however, nothing would have stopped Israel from saying that it accepts South Africa’s interpretation. In fact, Israel did touch upon this point in its Observations, stating that “South Africa does not explain how the intended effect of the fourth provisional measure that it is now requesting … would differ from that of the existing provisional measure dealing with humanitarian assistance.”

Conclusion

While a request for clarification of orders, without asking for modification, from the Court is not expressly provided for in the Statute or the Rules of the Court, the Court is empowered to clarify its orders when the parties appear to hold differing opinions regarding the meaning or scope of the provisional measures order. Although admitting these requests might slow down the judicial process, there are reasons why the Court should allow requests for clarification. First, provisional measures orders are binding on the parties and compliance with the order hinges upon a proper understanding of the obligations imposed. Second, provisional measures orders serve to safeguard rights of either party, pending a final decision. If a State misinterprets the scope of the indicated measures due to a lack of clarity, it may inadvertently act in contravention of the measures, thereby undermining the protective function of provisional measures orders and jeopardizing the subject-matter of the dispute.

The recent provisional measures Order of the Court in South Africa v. Israel case introduces a new precedent. It establishes that modification under the Rules includes specification of previously indicated measures. Yet, requesting modification for getting clarification appears to be more onerous than a direct request for clarification. Under the modification route, the requesting party faces a higher burden, since it must demonstrate a change in the situation, which seems unnecessary when the party only wants the Court to clarify its order.​
 
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