Historic Decision: International Court Mandates Provisional Measures Against Israel Regarding Palestinians in Gaza

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The International Court of Justice (ICJ), in its landmark ruling dated January 26, 2024, addressed the application of the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) in the Gaza Strip, in the case brought by South Africa against Israel. The ruling, significant for its implications on international law and geopolitical relations, entailed a series of provisional measures requested by South Africa, aimed at safeguarding the Palestinian people within the framework of the Genocide Convention.


TABLE OF CONTENTS


Context of the Proceedings

On December 29, 2023, South Africa initiated proceedings against Israel, alleging violations of the Genocide Convention in the Gaza Strip. This application included a request for provisional measures to protect the Palestinian people, which the ICJ acknowledged as a group protected under the Convention. The measures requested were seen as urgent, pending the Court’s final decision on the merits of the case.

Provisional Measures Requested

South Africa’s request encompassed several critical aspects:

  1. Immediate Suspension of Military Operations: South Africa asked for an immediate halt to Israel’s military operations in Gaza.
  2. Control Over Military and Allied Units: Israel was to ensure that its military and any affiliated units refrain from further military actions.
  3. Preventive Measures Against Genocide: Both South Africa and Israel were to take reasonable steps to prevent genocide in relation to the Palestinian people.
  4. Prohibition of Acts Constituting Genocide: Israel was required to desist from acts like killing, causing harm, inflicting destructive conditions, and imposing measures to prevent births within the Palestinian group.
  5. Prevention of Expulsion and Forced Displacement: Measures were to be taken against the expulsion and forced displacement of Palestinians, including ensuring access to essential needs and medical assistance.
  6. Ensuring Non-Commitment of Prohibited Acts: Israel was to ensure non-engagement in acts constituting genocide or related activities by its military and affiliated entities.
  7. Preservation of Evidence: Effective measures were to be taken to preserve evidence related to allegations of genocidal acts.
  8. Submission of Reports to the Court: Israel was to report on the measures taken to comply with the Court’s order.
  9. Refraining from Aggravating Actions: Israel was to avoid actions that could exacerbate or extend the dispute.

Legal Implications

The ICJ’s decision underscores the gravity of the Genocide Convention and its applicability in contemporary conflicts. It highlights the role of international law in addressing alleged violations of human rights and the responsibility of states in preventing and punishing genocide. The provisional measures, while not final judgments, indicate the Court’s recognition of the potential severity of the situation in Gaza and the urgency of preventive action.

Political Repercussions

The ruling has profound political implications. It reflects on the international community’s perception of the Israeli-Palestinian conflict and places significant pressure on Israel regarding its military actions in Gaza. The decision also underscores the role of third-party states, like South Africa, in advocating for human rights and international law compliance, potentially setting a precedent for future interventions in similar conflicts.

Contextualizing the Conflict

The ICJ’s ruling begins by outlining the harrowing context of the conflict. On October 7, 2023, Hamas and other armed groups in Gaza launched an attack in Israel, resulting in over 1,200 deaths and numerous abductions. Israel’s subsequent military response in Gaza led to significant civilian casualties and widespread infrastructure damage, triggering a mass displacement crisis. The court recognized the gravity of the human tragedy and noted the involvement of various United Nations bodies in addressing the conflict, highlighting the complexity and international implications of the situation.

 Establishing Prima Facie Jurisdiction

The court’s assessment of its jurisdiction is a critical aspect of the ruling. To consider provisional measures, the court first had to establish whether the Genocide Convention provided a prima facie basis for its jurisdiction. Both South Africa and Israel are signatories to the Convention without reservations, providing the court with a foundational legal framework to proceed. The court examined public statements and diplomatic communications from both nations, identifying a clear dispute over the interpretation and application of the Genocide Convention, thereby establishing its prima facie jurisdiction.

The Dispute Over Genocide Allegations

South Africa’s claim centered on the assertion that Israel’s military actions in Gaza amounted to violations of the Genocide Convention. In contrast, Israel firmly rejected these accusations, denouncing them as factually and legally unfounded and morally repugnant. This polarized stance between the two countries underscored the critical need for judicial examination and interpretation of the events under the purview of international law.

Conclusion as to Prima Facie Jurisdiction (Paras. 31-32)

The ICJ’s conclusion on prima facie jurisdiction is a decisive element in the case. After a detailed examination of the submissions and arguments from both South Africa and Israel, the Court concluded that it indeed possesses prima facie jurisdiction to adjudicate the case under Article IX of the Genocide Convention. This finding is pivotal as it establishes the Court’s legal capacity to hear the case and make determinations on the merits of the allegations.

This conclusion by the ICJ also meant rejecting Israel’s request for the case to be removed from the General List. Israel’s contention likely stemmed from a perspective that the Court might not have jurisdiction to hear the case or that the case did not sufficiently fall within the ambit of the Genocide Convention. The Court’s decision to retain the case on the General List affirms the legitimacy of South Africa’s allegations under international law, at least to the extent that they warrant judicial consideration.

Legal Implications

The Court’s decision to assert prima facie jurisdiction reflects a commitment to ensuring that allegations of such a grave nature, concerning potential violations of the Genocide Convention, are thoroughly examined and adjudicated. It underscores the role of international judicial bodies in upholding and interpreting international law, especially in matters involving serious human rights allegations.

Political Context

From a political perspective, this decision emphasizes the importance of international legal mechanisms in resolving disputes between states, especially those involving accusations of gross human rights violations. It also highlights the challenges faced in cases where geopolitical tensions and historical conflicts intertwine with international legal norms.

South Africa’s Standing in the Proceedings

In a significant observation, the ICJ noted that Israel did not challenge South Africa’s standing in the proceedings. This acknowledgment is crucial as it implies a tacit acceptance of South Africa’s role in the case. The Court emphasized that all states parties to the Genocide Convention share a common interest in preventing and punishing genocide. This collective responsibility underlines the principle that any state party, including South Africa, can hold another state accountable for alleged violations of the Convention. The Court’s conclusion affirms South Africa’s prima facie standing to present the dispute concerning alleged violations under the Genocide Convention, emphasizing the universal commitment to prevent genocide.

The Protection of Rights and Requested Measures

The Court’s analysis pivoted to the rights whose protection is sought and their link to the provisional measures requested by South Africa. It clarified that its authority to indicate provisional measures under Article 41 of the Statute aims to preserve the rights claimed in a dispute, pending a final decision. For these measures to be considered, the Court must find the rights asserted by the requesting party to be at least plausible. Furthermore, a direct link must be established between the rights sought to be protected and the provisional measures.

The Genocide Convention, as the Court recalls, obligates states to prevent and punish acts of genocide, including killing, causing harm, and deliberately inflicting conditions leading to a group’s physical destruction. Additionally, it prohibits conspiracy, incitement, attempts, and complicity in genocide. The Court observed that Palestinians in Gaza could be considered a protected group under the Convention, given the extensive casualties and displacement caused by Israel’s military operations following the attack of October 7, 2023. The situation’s severity, including the deprivation of essential life needs and medical care, was noted, along with statements from UN officials and reports documenting the humanitarian crisis and use of dehumanizing language against Palestinians.

In the Court’s view, these facts provided sufficient grounds to conclude that the rights claimed by South Africa, particularly the protection of Palestinians in Gaza from genocide and related acts, are plausible. Moreover, it found a direct link between these plausible rights and some of the provisional measures sought by South Africa, affirming the legitimacy of South Africa’s requests in the context of the Genocide Convention.

Legal and Political Implications

The ICJ’s examination of South Africa’s standing and the rights-protection aspect in the case against Israel reflects the intricate balance between legal principles and humanitarian concerns in international law. By affirming South Africa’s standing and acknowledging the plausibility of rights violations under the Genocide Convention, the Court has reinforced the role of international judicial processes in addressing grave humanitarian crises. Politically, this development underscores the responsibility of nations in the global community to address and prevent acts of genocide, reinforcing the collective commitment to uphold human rights and international legal standards. The ICJ’s approach in this case sets a significant precedent for future international legal disputes involving allegations of serious human rights violations.

Evaluating the Risk of Irreparable Prejudice and Urgency

The Court’s deliberation under this segment is centered around two crucial aspects: the risk of irreparable prejudice to the rights at stake and the urgency of addressing these risks.

  • Power to Indicate Provisional Measures: The Court, per Article 41 of its Statute, holds the power to prescribe provisional measures in situations where rights subject to judicial proceedings might suffer irreparable prejudice or face irreparable consequences if not addressed urgently. This power is contingent on the existence of a ‘real and imminent’ risk of such prejudice occurring before the Court can deliver its final decision.
  • Plausible Rights Under the Genocide Convention: The rights in question, as identified by the Court, are those of the Palestinian group in the Gaza Strip under the Genocide Convention. These include protection from acts of genocide and related prohibited acts. South Africa’s right to seek Israel’s compliance with its obligations under the Convention is also considered. The Court deemed these rights significant enough that any prejudice against them could result in irreparable harm.
  • Vulnerability of the Civilian Population: The Court acknowledged the extreme vulnerability of the civilian population in the Gaza Strip, aggravated by Israel’s military operations since October 7, 2023. The extensive casualties, widespread destruction of infrastructure, and massive displacement underscore the severity of the situation. The ongoing nature of the conflict and its impact on basic human necessities like food, water, and medical care further intensify the urgency.
  • Humanitarian Crisis: The Court highlighted the humanitarian crisis, including the risk to pregnant women and the expected rise in maternal and newborn mortality due to the lack of medical care. This catastrophic situation, per the Court, poses a serious risk of deteriorating further, reinforcing the need for urgent intervention.
  • Israel’s Steps and Legal Proceedings: While noting Israel’s efforts to alleviate the conditions in Gaza and legal actions against calls for intentional harm to civilians, the Court found these measures insufficient in eliminating the risk of irreparable prejudice.
  • Imminent Risk and Need for Provisional Measures: Concluding that there exists a real and imminent risk of irreparable prejudice to the rights involved, the Court underscored the necessity of provisional measures to protect these rights.

Legal and Political Implications

The ICJ’s assessment of irreparable prejudice and urgency in the Gaza Strip conflict is a critical juncture in international law, particularly in the context of the Genocide Convention. It emphasizes the Court’s proactive role in identifying and responding to humanitarian crises, especially in conflict zones. Politically, this decision places considerable emphasis on the responsibilities of states under international law to prevent actions that could lead to grave human rights violations. The Court’s findings and the consequent provisional measures could have significant implications for the Israeli-Palestinian conflict, potentially influencing future diplomatic and legal actions at both regional and international levels. The situation in Gaza, as articulated by the ICJ, calls for immediate and concerted efforts to mitigate the humanitarian crisis and uphold the principles of international law and human rights.

Conclusion and Adoption of Measures

The Court’s conclusion was driven by its earlier findings on the plausibility of rights violations and the urgent need to prevent irreparable harm. Given the catastrophic humanitarian situation in the Gaza Strip and the ongoing military operations, the ICJ deemed it necessary to prescribe specific provisional measures.

Provisional Measures Indicated by the Court

  • Prevention of Acts Constituting Genocide: The Court ordered Israel to take all measures within its power to prevent acts that fall within the scope of Article II of the Genocide Convention. These include preventing killing, causing serious harm, deliberately inflicting conditions of life leading to physical destruction, and imposing measures to prevent births within the Palestinian group in Gaza. The emphasis on immediate compliance underlines the urgency and severity of the situation.
  • Prohibition on Military Actions Leading to Genocide: Israel must ensure that its military forces refrain from committing any acts that could be construed as genocidal under the Convention. This measure underscores the responsibility of the state to control its armed forces and affiliated entities to prevent violations of international law.
  • Measures to Prevent and Punish Incitement to Genocide: Recognizing the role of rhetoric and public statements in escalating violence, the Court highlighted the need for Israel to actively prevent and punish any direct and public incitement to commit genocide against Palestinians.
  • Provision of Basic Services and Humanitarian Assistance: Acknowledging the dire humanitarian situation, the Court called on Israel to facilitate the provision of essential services and aid. This includes access to food, water, medical care, and other necessities, addressing the immediate needs of the Palestinian population.
  • Preservation of Evidence: Israel is mandated to preserve evidence related to allegations of acts within the scope of Articles II and III of the Genocide Convention. This measure is crucial for ensuring accountability and future legal proceedings.
  • Reporting Obligations: Israel must submit a detailed report to the ICJ within one month, outlining the measures taken in compliance with the Court’s order. This report will be communicated to South Africa, allowing for a transparent review process.

Legal and Political Implications

The ICJ’s decision to indicate these provisional measures carries profound legal and political implications. Legally, it reinforces the Genocide Convention’s role in international law and the obligation of states to adhere to its provisions. Politically, the ruling places significant pressure on Israel regarding its actions in the Gaza Strip, potentially influencing its military and diplomatic policies.

Operative Clause (Para. 86) of the Court’s Order

The operative clause outlines the provisional measures indicated by the International Court of Justice regarding the situation in Gaza, based on the Convention on the Prevention and Punishment of the Crime of Genocide. These measures are aimed at ensuring the protection of Palestinians in Gaza and preserving evidence related to allegations of genocide.

Provisional Measures Indicated

Prevention of Acts Constituting Genocide

  • Measure: Israel is obligated to prevent acts within the scope of Article II of the Genocide Convention.
  • Specific Prohibitions: These include preventing killing, serious harm, conditions leading to physical destruction, and measures to prevent births within the Palestinian group in Gaza.
  • Vote: 15 in favor, 2 against.
  • IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Moseneke;
  • AGAINST: Judge Sebutinde; Judge ad hoc Barak;

Prohibition of Military Acts Constituting Genocide

  • Measure: Israel’s military must refrain from committing any acts described in point 1.
  • Vote: 15 in favor, 2 against.
  • IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Moseneke;
  • AGAINST: Judge Sebutinde; Judge ad hoc Barak;

Prevention and Punishment of Incitement to Genocide

  • Measure: Israel must take measures to prevent and punish direct and public incitement to commit genocide against Palestinians in Gaza.
  • Vote: 16 in favor, 1 against.
  • IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judges ad hoc Barak, Moseneke;
  • AGAINST: Judge Sebutinde;

Provision of Humanitarian Assistance

  • Measure: Israel is required to take immediate and effective measures to provide urgently needed basic services and humanitarian assistance to Palestinians in Gaza.
  • Vote: 16 in favor, 1 against.
  • IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judges ad hoc Barak, Moseneke;
  • AGAINST: Judge Sebutinde;

Preservation of Evidence Related to Genocide Allegations

  • Measure: Israel must prevent the destruction and ensure the preservation of evidence related to allegations of acts constituting genocide against Palestinians in Gaza.
  • Vote: 15 in favor, 2 against.
  • IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Moseneke;
  • AGAINST: Judge Sebutinde; Judge ad hoc Barak;

Reporting Obligations

  • Measure: Israel must report to the Court on measures taken to implement this Order within one month from the date of the Order.
  • Vote: 15 in favor, 2 against.
  • IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Moseneke;
  • AGAINST: Judge Sebutinde; Judge ad hoc Barak;

Significance

These provisional measures represent the Court’s immediate response to the situation in Gaza, emphasizing the prevention of genocide and the protection of human rights within the framework of the Genocide Convention. The measures reflect the Court’s commitment to upholding international law and safeguarding vulnerable populations in conflict situations. The voting pattern indicates a strong consensus among the judges on most measures, with a notable divergence in a few instances, reflecting differing interpretations and perspectives on the situation.

Historic Decision: International Court Mandates Provisional Measures Against Israel Regarding Palestinians in Gaza

In a groundbreaking decision, the International Court has issued a comprehensive and legally binding order with potentially far-reaching implications for international law, geopolitical relations, and human rights. This decision, involving the State of Israel and its obligations towards Palestinians in Gaza, is a pivotal moment in the ongoing struggle for justice and human rights in the region.

The Operative Clause: A Detailed Analysis

The order, expressed in its operative clause, breaks down into several key directives, each carrying immense weight in terms of international law and human rights protection.

  • Prevention of Genocide Acts: The Court, with a majority of fifteen votes to two, mandated that Israel must take all measures within its power to prevent acts that could be construed as genocide against Palestinians in Gaza. This includes preventing killings, serious bodily or mental harm, conditions leading to physical destruction, and measures intended to prevent births within the Palestinian group. This directive aligns with Israel’s obligations under the Convention on the Prevention and Punishment of the Crime of Genocide. The specificity of these directives underlines the seriousness with which the Court views the potential for genocidal actions.
  • Immediate Military Compliance: By the same voting margin, the Court requires Israel to ensure that its military does not commit any of the acts described above. This measure serves as an immediate check on military actions, reflecting urgent concern for the protection of human rights.
  • Preventing and Punishing Incitement to Genocide: In a nearly unanimous decision (sixteen votes to one), the Court instructs Israel to take all necessary measures to prevent and punish direct and public incitement to commit genocide. This aspect of the ruling highlights the crucial role of rhetoric and public discourse in the genesis of genocidal actions.
  • Provision of Basic Services and Humanitarian Assistance: Recognizing the dire conditions in the Gaza Strip, the Court, again with only one dissenting vote, orders Israel to take immediate and effective measures to enable the provision of essential services and humanitarian assistance. This part of the ruling addresses the humanitarian crisis and underscores the right to basic necessities.
  • Preservation of Evidence: With fifteen votes to two, the Court emphasizes the importance of preserving evidence related to allegations of acts within the scope of the Genocide Convention. This directive is crucial for future accountability and justice processes.
  • Reporting Compliance: Finally, by the same majority, Israel is required to report back to the Court on measures taken in compliance with this order within one month. This requirement ensures ongoing oversight and accountability.

Legal and Political Implications

This decision marks a significant legal precedent in international law, particularly regarding the enforcement of the Genocide Convention. It demonstrates the International Court’s willingness to take a firm stance on issues of human rights and genocide prevention. Politically, this ruling could have far-reaching effects on Israel’s international relations and its domestic policies. The detailed nature of the directives reflects the Court’s intent to see tangible actions, not just rhetorical commitments, towards protecting the rights of Palestinians in Gaza.

Dissenting Opinion of Judge Sebutinde: Political and Diplomatic Dimensions in the Israel-Palestine Dispute

The recent provisional measures ordered by the International Court of Justice (ICJ) in the case involving the State of Israel and the Republic of South Africa have sparked widespread global interest and public scrutiny. This scrutiny is evident in various media reports and global demonstrations, underscoring the complexity and sensitivity of the issue at hand. Judge Sebutinde’s dissenting opinion provides a crucial perspective on this matter, emphasizing the fundamentally political nature of the Israel-Palestine dispute and questioning the legal framework applied by the Court.

The Limited Scope of the Provisional Measures Order

In her dissenting opinion, Judge Sebutinde cautions against any premature conclusions regarding the Court’s indication of provisional measures. She stresses that the Court has not made any definitive determination about Israel’s violation of its obligations under the Genocide Convention at this procedural stage. It is essential to understand that such a finding could only be made after a thorough examination of the merits of the case.

The Court’s primary concern at this stage is to preserve the rights that may eventually be adjudged to belong to either party, pending its final decision. This approach aligns with the Court’s earlier stance in the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). In that instance, the Court emphasized its role in determining the necessity of provisional measures for protecting rights under the Genocide Convention, rather than establishing the existence of breaches of the Convention.

Furthermore, Judge Sebutinde points out that the Court has not yet determined its jurisdiction to entertain South Africa’s claims on the merits or the admissibility of those claims. These issues will be addressed in a later phase of the case, after both South Africa and Israel have had the opportunity to present their arguments.

The Political and Diplomatic Nature of the Dispute

At the core of Judge Sebutinde’s dissent is the argument that the Israel-Palestine dispute is, in essence, a political conflict that requires a diplomatic or negotiated settlement. She underscores the need for the implementation of all relevant Security Council resolutions by all parties concerned in good faith, aiming for a permanent solution that allows for the peaceful coexistence of the Israeli and Palestinian peoples.

This perspective challenges the notion that the dispute is primarily legal and susceptible to judicial settlement by the Court. Instead, it highlights the complexities and historical underpinnings of the conflict, suggesting that a solely legal approach might not be sufficient or appropriate for resolving such a deeply rooted and multifaceted issue.

The Question of Genocidal Intent

A critical aspect of Judge Sebutinde’s opinion is her assessment of the allegations of genocidal intent by Israel. She notes that South Africa has not demonstrated, even on a prima facie basis, that the acts allegedly committed by Israel were done with the necessary genocidal intent. Consequently, these acts may not fall within the scope of the Genocide Convention. This observation raises questions about the plausibility of the rights asserted by South Africa and the protection it seeks through the indication of provisional measures under the Convention.

The Limited Jurisdiction of the Court in the Israel-Palestine Dispute and Its Political Underpinnings

Examining the Court’s Jurisdiction within the Genocide Convention

In a recent provisional measure, the International Court of Justice (ICJ) has been petitioned to address allegations related to the Genocide Convention in the context of the Israel-Palestine conflict. South Africa, in its application instituting proceedings, invoked Article IX of the Genocide Convention and Article 36(1) of the Court’s Statute. Both Israel and South Africa are signatories to the Genocide Convention without any reservations. This context defines the Court’s jurisdiction, limited exclusively to matters pertaining to the Genocide Convention. Consequently, the Court is not authorized to adjudicate alleged breaches of international humanitarian law (IHL) in this specific case.

This limitation is critical. While the ICJ acknowledges the potential for grave violations of IHL, possibly amounting to war crimes or crimes against humanity in Israel and Gaza, these actions do not inherently constitute acts of genocide as defined in Article II of the Genocide Convention. The essential criterion for such a classification is the demonstrable intent to destroy, wholly or partially, a national, ethnical, racial, or religious group. This interpretation confines the Court’s jurisdiction, preventing it from addressing broader alleged violations of IHL within the Israel-Palestine context.

The Historical Political Nature of the Israel-Palestine Controversy

In her dissenting opinion, Judge Sebutinde articulates a compelling viewpoint on the nature of the Israel-Palestine dispute. She posits that this controversy is fundamentally political, territorial, and ideological. This perspective suggests that the dispute extends beyond the legal realm and requires diplomatic negotiation and the good faith implementation of relevant United Nations Security Council resolutions. The aim of such diplomatic efforts should be to achieve a lasting solution that allows for the peaceful coexistence of Israeli and Palestinian peoples.

This interpretation of the conflict as primarily political rather than legal is crucial. It implies that the recourse to legal frameworks like the Genocide Convention might sometimes represent a strategic maneuver by states to judicialize what are essentially political disputes. In the case of Israel and Palestine, Judge Sebutinde perceives the invocation of the Genocide Convention as an attempt to fit a political controversy into a legal framework, likening it to forcing a case into the “proverbial Cinderella’s glass slipper.”

This perspective highlights a critical aspect of international disputes: the tendency of states to utilize international legal instruments as tools in broader political strategies. It underscores the challenges facing the ICJ in adjudicating issues that are deeply rooted in historical, political, and ideological grounds.

The Political Context and Evolution of the Israeli-Palestinian Conflict: A Path to Peace through Negotiation

The Israeli-Palestinian conflict, a central issue in Middle Eastern politics, has a long and complex history intertwined with the efforts of the United Nations and the broader international community. This article delves into the political evolution of this conflict, highlighting key resolutions and agreements that have shaped its course and the persistent pursuit of a peaceful resolution through negotiation.

The United Nations’ Involvement and the Partition Plan

The involvement of the United Nations in the Israeli-Palestinian conflict dates back to its inception. In 1947, the U.N. General Assembly adopted resolution 181 (II), recommending a partition plan for Palestine, which then was under British mandate. This plan proposed the creation of two independent states – one Jewish and one Arab – acknowledging the self-determination rights of both Jews and Arabs in the region. This resolution laid the groundwork for the establishment of the State of Israel in May 1948. However, the partition plan’s rejection by certain Arab leaders and the ensuing Arab-Israeli war in 1948 hindered the realization of a two-state solution.

Security Council Resolutions 242 and 338

The 1967 Arab-Israeli war led to Israel’s seizure of the West Bank and Gaza Strip, intensifying the conflict. In response, the U.N. Security Council passed resolution 242 in November 1967, calling for Israeli withdrawal from territories seized in the conflict and recognition of Israel’s right to exist peacefully within secure borders. This resolution became a cornerstone for future peace efforts. In 1973, following the Arab-Israeli war, the Security Council adopted resolution 338, urging a ceasefire and immediate negotiations for a just and durable peace in the Middle East.

The Oslo Accords and Subsequent Peace Agreements

The pursuit of peace saw significant developments with the signing of the 1979 peace treaty between Israel and Egypt and the 1994 peace agreement between Israel and Jordan. A landmark achievement was the 1993 Oslo Accords, wherein the Palestinian Liberation Organization recognized the State of Israel, and Israel acknowledged the PLO as the representative of the Palestinian people. These accords endorsed the framework of Security Council resolutions 242 and 338, emphasizing the need for reconciliation and a political process to achieve a comprehensive peace settlement.

The Role of the Quartet and the Two-State Solution

The U.N. Security Council, in resolution 1515 of 2003, endorsed the Quartet’s Roadmap to a Permanent Two-State Solution, comprising representatives from the United States, European Union, Russian Federation, and United Nations. This roadmap called for both parties to fulfill their obligations and work towards the vision of two states living side by side in peace and security. The Security Council’s subsequent resolutions, including resolution 1850 of 2008 and resolution 2334 of 2016, reiterated support for negotiations and emphasized the importance of a two-state solution.

General Assembly’s Support for the Two-State Solution

The U.N. General Assembly has consistently supported the two-state solution, recalling the Oslo Accords and the Quartet Roadmap in its resolutions. Resolutions such as 77/25 (2022), 76/10 (2021), and 75/22 (2020) have reiterated calls for a comprehensive peace based on relevant U.N. resolutions, the Madrid terms, the Arab Peace Initiative, and the Quartet Roadmap.

The Court’s Advisory Opinion on Peaceful Negotiations

The International Court of Justice, in its Advisory Opinion on the construction of a wall in the Occupied Palestinian Territory, emphasized the obligation of both Israel and Palestine to adhere to international humanitarian law and highlighted the need for good faith implementation of Security Council resolutions 242 and 338. The Court recognized the Roadmap as a recent effort to initiate negotiations and stressed the importance of achieving a negotiated solution based on international law.

The October 7, 2023, Crisis: A Detailed Examination

The Attack on October 7, 2023

On October 7, 2023, a significant and devastating event unfolded when Hamas launched a large-scale attack on Israel. This attack involved thousands of rockets and a ground invasion, leading to substantial casualties and destruction:

  • Israel reported over 1,200 people murdered, more than 5,500 maimed, and over 240 hostages abducted.
  • The hostages included a wide demographic range, such as infants, entire families, the elderly, the disabled, and Holocaust survivors.

Israel’s Retaliation and Gaza’s Humanitarian Impact

In response to this attack, Israel initiated a military operation into Gaza with two primary objectives: to defeat Hamas and to rescue Israeli hostages. The ensuing armed conflict over the following 11 weeks had severe humanitarian consequences for Gaza’s population:

  • 1.9 million Palestinians (85% of Gaza’s population) were internally displaced.
  • Over 22,000 Palestinians were killed, including over 7,729 children.
  • More than 7,780 are missing or presumed dead under the rubble.
  • Over 55,243 suffered severe injuries or mental harm.
  • Extensive destruction of infrastructure occurred, including 355,000 homes, places of worship, hospitals, and other critical facilities.

South Africa’s Legal Action Against Israel

On December 28, 2023, South Africa filed an Application against Israel at the International Court of Justice (ICJ), alleging violations of the Genocide Convention:

  • South Africa claimed that Israel’s actions in Gaza amounted to genocide, targeting a substantial part of the Palestinian national, racial, and ethnical group.
  • The application accused Israel of failing to prevent genocide, committing genocide, and inciting genocide.

Israel’s Defense and Position

Israel, while acknowledging the severe impact of the conflict on civilians, contested the accusation of genocide:

  • Israel argued that its military operation was a legitimate defense against Hamas.
  • It emphasized its right under international humanitarian law to protect its citizens and territory from an armed group intent on annihilating the Jewish State.
  • Israel requested the ICJ to reject South Africa’s request for provisional measures and to dismiss the case from its General List.

Political and Legal Implications

This situation presents a complex legal and political challenge. The ICJ is tasked with determining whether Israel’s actions fall within the scope of the Genocide Convention. This involves an assessment of the intent behind Israel’s military actions and whether these actions meet the legal criteria for genocide.

The events of October 7, 2023, and their aftermath represent a critical moment in the Israeli-Palestinian conflict, raising profound questions about international law, human rights, and state responses to non-state actors. The ICJ’s decision on this matter will not only impact Israel and Palestine but also influence international legal norms and the application of the Genocide Convention in complex geopolitical conflicts.

Some of the Conditions for the Indication of Provisional Measures Have Not Been MetTop of Form

The International Court of Justice (ICJ) plays a crucial role in resolving international disputes and upholding international law. One of the essential tools at its disposal is the power to indicate provisional measures under Article 41 of its Statute. These measures are designed to preserve the rights of parties to a dispute pending the final resolution. In this article, we delve into the legal standards and criteria that the ICJ has progressively developed to determine whether to exercise its power to indicate provisional measures. We also discuss recent cases and their implications for these criteria.

Prima Facie Jurisdiction:

To initiate the process of indicating provisional measures, the Court must first determine whether it has prima facie jurisdiction to entertain the alleged dispute between the Parties. This determination is crucial and serves as a threshold requirement.

In the case of Ukraine v. Russian Federation, the Court examined allegations of genocide under the Convention on the Prevention and Punishment of the Crime of Genocide. In its Provisional Measures Order of 16 March 2022, the Court underscored the importance of this criterion (I.C.J. Reports 2022 (I), p. 217, para. 24). This decision aligns with the principles established in previous cases, such as The Gambia v. Myanmar (I.C.J. Reports 2020, pp. 9-17, paras. 16-42).

The development of this criterion ensures that the ICJ does not exercise its power arbitrarily but only when there is a genuine dispute within its jurisdiction.

Plausible Rights with a Link to Requested Measures:

Another essential aspect the ICJ considers is whether the rights asserted by the requesting party are plausible and have a connection with the requested provisional measures. This criterion aims to prevent the abuse of the Court’s powers and ensures that the measures requested are directly related to the rights claimed.

In the case of the Islamic Republic of Iran v. United States of America, involving alleged violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights, the Court emphasized the importance of this criterion in its Provisional Measures Order of 3 October 2018 (I.C.J. Reports 2018 (II), p. 638, para. 53).

This standard prevents parties from seeking measures that are unrelated or disproportionate to the rights they assert, maintaining the integrity of the Court’s decision-making process.

Urgency and Risk of Irreparable Prejudice:

The third critical factor in determining the indication of provisional measures is whether the situation is urgent and presents a risk of irreparable prejudice to the rights asserted. This criterion safeguards the interests of the parties involved by addressing situations where immediate action is necessary to prevent significant harm.

In the Islamic Republic of Iran v. United States of America case, the Court assessed the urgency and risk of irreparable prejudice in detail (I.C.J. Reports 2018 (II), pp. 645-646, paras. 77-78). This analysis ensures that the ICJ’s intervention is justified and serves the purpose of preserving rights effectively.

The International Court of Justice has established clear legal standards and criteria for the indication of provisional measures, as demonstrated in recent cases. These standards require the Court to determine its jurisdiction, evaluate the plausibility of asserted rights, and assess the urgency and risk of irreparable prejudice. By adhering to these criteria, the ICJ maintains the integrity of its decision-making process and upholds the principles of international law.

These standards are crucial in guiding the Court’s actions and ensuring that provisional measures are indicated when appropriate, ultimately contributing to the peaceful resolution of international disputes.

Assessment of Genocidal Intent

A pivotal aspect of this case is the determination of genocidal intent, a distinctive feature separating genocide from other grave international law violations. South Africa’s allegations against Israel include acts like killing, causing harm, inflicting destructive conditions, and preventing births within the Palestinian group in Gaza, all potentially falling under Article II of the Genocide Convention.

South Africa’s Claims

South Africa asserts that Israel’s military operation in Gaza exhibits genocidal intent, citing various acts and statements by Israeli officials. They point to the systematic nature of the operations and public statements as indicative of a state policy against Palestinians in Gaza.

Israel’s Counterarguments

Israel firmly denies any genocidal intent, framing its military operation as a defensive response against Hamas, a terrorist organization, and not against the Palestinian people as a whole. They emphasize:

  • Targeted attacks on legitimate military objectives.
  • Efforts to mitigate civilian harm and facilitate humanitarian assistance.
  • The context and interpretation of Israeli officials’ statements, arguing that they have been misconstrued or taken out of context by South Africa.

The Judge’s Perspective

The Judge, after examining the evidence, expresses skepticism about the presence of genocidal intent on Israel’s part. Key observations include:

  • Israel’s operation was initiated in response to Hamas’ attack on October 7, 2023.
  • Measures taken by Israel to minimize civilian casualties and the provision of humanitarian aid.
  • The lack of genocidal rhetoric in the official policy and statements of Israeli government officials.

Contextualizing the Conflict

The Judge also notes that the ongoing conflict and the events of October 7, 2023, stem from a deeper political controversy between Israel and Palestine. The tactics employed by Hamas, such as embedding within civilian populations, exacerbate the humanitarian situation in Gaza.

Conclusion on the Genocide Convention Scope

The Judge concludes that the acts complained of by South Africa do not demonstrate the necessary genocidal intent to fall within the scope of the Genocide Convention. This conclusion is based on a thorough examination of Israel’s policies, objectives, and the context of the statements made by its officials.

Link Between Asserted Rights and Provisional Measures

Finally, the Judge finds that there is no clear link between the rights asserted by South Africa and the provisional measures sought. This lack of correlation further undermines the case for the indication of provisional measures under the current legal framework.

There is no link between the asserted rights and the provisional measures requested by South Africa

Examination of the First and Second Requested Measures

Context of the Measures

  • The first and second measures requested by South Africa focus on Israel’s military operations in Gaza, with an emphasis on ceasing acts of genocide as outlined in Articles II and III of the Genocide Convention.
  • However, these measures extend beyond preventing acts of genocide, encompassing the suspension of all military operations in Gaza. This includes scenarios where Hamas, not a party to these proceedings, continues its hostilities or retains Israeli hostages.

Realistic Assessment and Scope

  • The expectation for Israel to unilaterally cease hostilities in this context is deemed unrealistic. The broad nature of these measures lacks a clear link to the rights asserted by South Africa under the Genocide Convention.
  • The focus on Israeli military operations targeting Hamas and other armed groups, rather than the civilian population of Gaza, falls outside the convention’s scope. This distinction is crucial, especially for operations compliant with international humanitarian law.

Precedents and Legal Rationale

  • The Court’s approach in similar cases, such as Bosnia v. Serbia and The Gambia v. Myanmar, provides a precedent. In these cases, provisional measures indicated by the Court did not prevent the continuation of military operations in general.
  • The measures indicated were explicitly restricted to preventing acts of genocide, not extending to broader military actions.

Critical Observations

  1. Overly Broad Nature: The first and second measures proposed by South Africa are seen as overly broad and not sufficiently tailored to the specific rights under the Genocide Convention.
  2. Lack of Clear Link: There is a lack of a direct link between these measures and the rights asserted by South Africa, particularly given the context of an armed conflict where actions targeting armed groups are differentiated from those impacting civilians.
  3. Compliance with International Law: The consideration of Israel’s compliance with international humanitarian law in its operations against armed groups is a vital factor. Operations that adhere to these laws are outside the scope of the Genocide Convention’s obligations.
  4. Precedent from Prior Cases: Past ICJ cases demonstrate a nuanced approach where provisional measures focus strictly on preventing acts of genocide without impeding broader military operations against armed groups.
  5. Realism in Conflict Scenarios: The expectation for unilateral ceasefire, especially in a scenario involving active hostilities and hostage situations, is viewed as impractical and not grounded in the realities of conflict situations.

Third Measure: “Preventing Genocide”

The third measure requested by the Applicant, South Africa, seeks to apply certain obligations to both Israel and South Africa, even though South Africa is not a party to the Gaza conflict. This measure primarily targets Israel, as it is the party directly involved in the conflict. However, several key points must be considered:

  1. Applicability to Israel: The measure, while extending its scope to South Africa, is primarily directed at Israel. It requests Israel to take “reasonable measures within their powers to prevent genocide” in Gaza. However, this essentially restates the existing obligation of Israel and other State parties under the Genocide Convention. In this sense, the measure appears redundant.
  2. Genocidal Intent: The text raises the importance of establishing genocidal intent. The Genocide Convention requires the intent to “destroy, in whole or in part” a particular group. Therefore, the measure’s effectiveness hinges on proving such intent, which may not be straightforward in the context of the Israel-Gaza conflict.

Fourth and Fifth Measures: “Specific Actions” and “Conditions of Life”

The fourth and fifth measures requested by South Africa pertain to specific actions by Israel and are linked to its obligations under the Genocide Convention. However, when scrutinized, these measures seem to be more aligned with International Humanitarian Law (IHL) rather than the Genocide Convention:

  • Unilateral Cessation of Hostilities: The fourth measure essentially requires Israel to unilaterally stop hostilities with Hamas to guarantee that acts listed in Article II of the Genocide Convention do not occur. This could be seen as an effort to ensure the safety and well-being of the Palestinian population in Gaza. Nevertheless, when the requirement of genocidal intent is removed, it becomes a demand for Israel to adhere to IHL, a different legal framework.
  • Deprivation of Humanitarian Supplies: The text correctly notes that the deprivation of humanitarian supplies would only constitute genocide if special intent is proven. In this case, the text suggests that such intent is not evident, making this measure unwarranted under the Genocide Convention.
  • Vague Language in Fifth Measure: The fifth measure addresses the “destruction of Palestinian life in Gaza,” but its wording appears vague and overlaps with the requirement for Israel to refrain from deliberately inflicting conditions of life calculated to bring about the physical destruction of the Palestinian population of Gaza. This raises questions about the necessity of separately indicating this measure.

Clarification on Genocidal Intent:

It is essential to emphasize that for these measures to be applicable under the Genocide Convention, clear evidence of genocidal intent must be presented. Forced displacement, while concerning, does not necessarily constitute genocide unless it is intended to bring about the physical destruction of the group.

Sixth Measure: Repetition of Prohibitions

The sixth measure, as presented by South Africa, appears to replicate the prohibitions already outlined in the fourth and fifth measures. Below are key points concerning this measure:

  • Redundancy: The sixth measure is written in such a way that it essentially restates the prohibitions mentioned in the fourth and fifth measures. As a result, it does not seem to introduce any new obligations or rights beyond what has already been requested.
  • Lack of Distinct Purpose: It is important to question the necessity of including a measure that duplicates existing requests. Without a clear, distinct purpose or objective, the inclusion of this measure may raise questions about its relevance to the case.

Seventh Measure: Preservation of Evidence

The seventh measure pertains to the preservation of evidence and access to Gaza. It is crucial to assess its validity in the context of the Genocide Convention and international law. The following points offer a comprehensive analysis:

  • Existence of a Link: The judge’s opinion acknowledges that in the Gambia v. Myanmar case, the ICJ found a link between a similar measure and the preservation of evidence. However, in the present Israel-South Africa case, there is no evidentiary basis for concluding that Israel is intentionally destroying evidence related to genocide.
  • Access to Gaza: Part of the requested measure concerns granting access to Gaza for fact-finding missions and other entities. It should be noted that this requirement potentially extends beyond Israel’s obligations under the Genocide Convention.
  • Preservation of Evidence Under Control: A fundamental principle in international law is that a state may be obligated to preserve evidence under its control. However, the requirement to allow access to Gaza by third parties goes beyond the preservation of evidence and raises questions about its relevance to South Africa’s asserted rights.
  • Precedent of Access Request: The judge’s opinion refers to a prior ICJ case where Canada and the Netherlands sought access by independent monitoring mechanisms in the context of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This request was rejected, indicating the court’s stance on such access requests.

Eighth and Ninth Measures: Preventing Actions and Providing Information

The eighth and ninth requested measures, as highlighted by the ICJ, serve a specific purpose within the context of the case:

  • Preventing Actions: These measures are aimed at preventing actions that could exacerbate or prolong the existing dispute or make its resolution more challenging. In the context of an ongoing conflict with Hamas, which is not a party to these proceedings, it becomes a complex issue to limit one belligerent party’s actions while not applying the same limitations to the other. Israel would argue its right to self-defense against Hamas, which could be seen as a move that “aggravates the situation in Gaza.”
  • Providing Information on Compliance: Another aspect of these measures involves providing information on the compliance of the Parties with specific provisional measures indicated by the Court. This is important for transparency and accountability in the context of international law.

Plausibility of South Africa’s Asserted Rights under the Genocide Convention

In conclusion, the judge’s opinion raises doubts about the plausibility of the rights claimed by South Africa under the Genocide Convention for several key reasons:

  1. Acts Not Falling Within the Scope: The acts complained of by South Africa do not appear to fall within the scope of the Genocide Convention. While they may constitute grave violations of International Humanitarian Law (IHL), they lack the necessary genocidal intent required by the Convention.
  2. Genocidal Intent Absence: The text underscores that the acts in question are not prima facie accompanied by the essential genocidal intent. The Genocide Convention explicitly necessitates the intent to “destroy, in whole or in part” a particular group.
  3. Unwarranted Provisional Measures: In addition to questioning the plausibility of the asserted rights, the text also expresses doubts about the necessity of the provisional measures requested by South Africa. These doubts are based on the reasoning provided within the text.

Plausibility of South Africa’s Asserted Rights under the Genocide Convention

  • Scope of the Genocide Convention: The Genocide Convention is a legally binding international treaty that sets strict criteria for defining genocide. The Judge concludes that South Africa’s assertions do not appear to align with the Convention’s scope, suggesting that the acts complained of may not meet the specific criteria outlined in the Convention.
  • Absence of Genocidal Intent: A fundamental element of genocide, as defined by the Convention, is the presence of genocidal intent – the intent to “destroy, in whole or in part,” a particular group. The Judge asserts that the acts in question do not prima facie demonstrate the necessary genocidal intent required by the Convention.
  • Grave Violations of IHL: While acknowledging that the acts in question may constitute grave violations of International Humanitarian Law (IHL), the Judge emphasizes that such violations do not automatically satisfy the stringent requirements of the Genocide Convention. The Convention sets a higher threshold by mandating the presence of genocidal intent, which appears to be lacking in this case.

Evaluation of Requested Provisional Measures

  • Lack of Direct Link to Asserted Rights: The Judge questions the direct link between the provisional measures requested by South Africa and the rights asserted under the Genocide Convention. This raises concerns about the appropriateness and relevance of the requested measures in the context of the case.
  • View on Unwarranted Provisional Measures: Without providing specific details, the Judge expresses a viewpoint that the provisional measures requested by South Africa are considered unwarranted. The reasons for this perspective are not elaborated in the provided text.

Judicial Analysis: The Unwarranted Nature of the Court’s Provisional Measures

Redundancy of First Measure:

  • The First measure obligates Israel to prevent acts within the scope of the Genocide Convention.
  • The judge argues that this measure is redundant as it mirrors the obligations already incumbent upon Israel under Articles I and II of the Genocide Convention.

Redundancy of Second Measure:

  • The Second measure obligates Israel to ensure its military does not commit acts described in point 1.
  • The judge believes this measure is either already covered under the first measure or mirrors existing obligations under Articles I and II of the Genocide Convention.

Redundancy of Third Measure:

  • The Third measure obligates Israel to prevent and punish direct and public incitement to commit genocide.
  • The judge asserts that this measure is redundant as it mirrors the obligations already incumbent upon Israel under Articles I and III of the Genocide Convention.

Irrelevance of Fourth Measure:

  • The Fourth measure obligates Israel to provide humanitarian assistance to Palestinians in the Gaza Strip.
  • The judge argues that this measure has no direct link to the rights claimed under the Genocide Convention. Under this Convention, states do not have a duty to provide humanitarian assistance.

Doubts about Fifth Measure:

  • The Fifth measure obligates Israel to preserve evidence related to allegations of acts within the scope of the Genocide Convention.
  • The judge questions the evidentiary basis for assuming that Israel is deliberately destroying evidence and suggests that infrastructure destruction may be due to the ongoing conflict.

Unnecessary Sixth Measure:

  • The Sixth measure requires Israel to submit a report on measures taken to comply with the Court’s order.
  • The judge argues that, given the lack of necessity for the other measures, there is no reason for Israel to be required to submit such a report.

Concern for Israeli Hostages:

  • The judge expresses grave concern about Israeli hostages held by Hamas and other armed groups following an attack in October 2023.
  • The judge supports the Court’s call for their immediate and unconditional release.
  • There’s a suggestion that South Africa, as a party to the proceedings and with connections to Hamas leadership, could potentially use its influence to help secure the hostages’ release.

This judge’s opinion provides a comprehensive analysis of the provisional measures indicated by the International Court of Justice and raises concerns and doubts about their necessity and relevance. Additionally, it highlights the ongoing issue of hostages held by armed groups in Gaza and suggests a potential role for South Africa in resolving this conflict.

In conclusion, the undersigned, Judge Julia SEBUTINDE, maintains a firm stance against the provisional measures indicated by the Court in the Order. The following key points summarize the judge’s position:

  • Lack of Warranted Measures: The judge firmly believes that the provisional measures outlined by the Court in this Order are not warranted. The reasoning behind this stance is rooted in a detailed analysis of each measure, demonstrating that they are either redundant, irrelevant, or unsupported by sufficient evidence.
  • Political Nature of the Dispute: The judge underscores the view that the dispute between the State of Israel and the people of Palestine is fundamentally a political issue, which, in their opinion, necessitates a diplomatic or negotiated settlement. This position suggests that legal remedies alone may not suffice to resolve the underlying issues.
  • Call for Diplomatic Resolution: The judge emphasizes the importance of a diplomatic approach to resolve the conflict. They advocate for the implementation of all relevant Security Council resolutions by all parties involved, urging a commitment to finding a permanent solution that enables peaceful coexistence between the Israeli and Palestinian peoples.

In light of these considerations, Judge Julia SEBUTINDE maintains that the provisional measures ordered by the Court are unwarranted and that a diplomatic and political approach remains essential for achieving a lasting resolution to the Israeli-Palestinian conflict.


DECLARATION OF JUDGE NOLTE

  • The circumstances of this case are undeniably tragic and complex. On 7th October 2023, individuals associated with Hamas launched a series of attacks against Israel from the Gaza Strip, resulting in numerous casualties, including the loss of more than 1,000 Israeli lives and the taking of over 200 hostages. Rocket attacks on Israeli territory persist, and in response, Israel initiated a military operation in the Gaza Strip. This military action has led to a devastating toll, including the deaths and injuries of thousands of Palestinian civilians, the displacement of a significant majority of Gaza’s Palestinian population, and the destruction of a substantial portion of the region’s infrastructure and housing. This apocalyptic situation must be understood within the context of a deeply intricate political and historical background. It is crucial to acknowledge the diverse global perspectives on responsibility for the ongoing crisis, the broader conflict, and the necessary steps towards resolution.

II. The Limited Role of the Court

  • It is imperative to recognize that the scope of the Court’s involvement in this case is restricted. South Africa has brought forth its application against Israel solely based on the Genocide Convention. Consequently, this case solely addresses alleged violations of the Genocide Convention and, more specifically, alleged violations by Israel. It does not encompass potential violations of other international laws, such as war crimes, nor does it pertain to alleged violations of the Genocide Convention by individuals associated with Hamas. While these constraints may be unsatisfactory to some, it is imperative to understand that the Court is obliged to respect these limitations. It is essential to emphasize that individuals associated with Hamas remain accountable for any acts of genocide they may have committed, and both Israel and individuals associated with Hamas are legally liable for potential breaches of other rules of international law, including international humanitarian law, which can be examined through separate legal processes.

III. The Genocide Convention: A Unique Treaty

  • The Genocide Convention, established in 1948, holds a distinctive position in the realm of international treaties. Its inception followed the Holocaust perpetrated by Nazi Germany against the Jewish population in Europe. The Convention’s preamble affirms that “genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world.” It underscores humanity’s commitment to eradicate such a heinous scourge. Article II of the Convention defines genocide as specific acts committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” Given that Israel was established in 1948 as a sanctuary for the Jewish people, including protection from the specter of another genocide, it is understandable that Israel vehemently denies any allegations of Genocide Convention violations.

IV. Israel’s Acceptance of the Court’s Jurisdiction

  • Despite Israel’s reservations, it is essential to note that, by acceding to the Genocide Convention, Israel has acknowledged the Court’s jurisdiction under Article IX of the Convention, which covers “[d]isputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III.”

V. The Current Phase of Proceedings

  • In the present phase of proceedings, the Court’s role is not to ascertain the veracity of South Africa’s claims of genocide. Instead, the Court’s focus lies in determining whether the circumstances warrant the indication of provisional measures to safeguard rights under the Genocide Convention, which are at risk of being violated before a final decision on the merits is reached. The Court is not obliged to delve into contentious issues such as the right to self-defense, the right of self-determination of peoples, or territorial status at this stage. It is crucial to recognize that the Genocide Convention is not primarily designed to govern armed conflicts, even those characterized by excessive force and significant civilian casualties.

VI. The Need for a Summary Assessment

  • Given the limited scope of the current proceedings, the Court is tasked with providing a summary assessment of the divergent claims presented by the Parties. Regrettably, during the oral proceedings, the Parties often failed to engage constructively, with South Africa primarily emphasizing the 7th October 2023 attack and Israel barely acknowledging United Nations reports on the humanitarian situation in the Gaza Strip. South Africa neglected to address Israel’s efforts to evacuate civilians from conflict zones, while Israel failed to satisfactorily address problematic forms of speech and conduct by its officials, including military personnel.

VII. Application of Legal Standards

  • In light of the disparate presentations by the Parties, the Court is compelled to apply established legal standards. This case is not the first instance in which a State has sought provisional measures based on the Genocide Convention. The Court has previously indicated such measures, as evidenced by the 2020 case between The Gambia and Myanmar. Despite the exceptional nature of this case, the Court possesses the requisite tools to handle it, drawing upon its own jurisprudence. The present Order adheres to the standards developed in previous cases, albeit without specifying the distinctions between this case and previous ones before the Court or the relative significance of certain factors. Consequently, I wish to elucidate the reasons behind my vote in favor of the Order.

VIII. The Essential Characteristic of Genocide

  • A fundamental aspect that distinguishes genocide from other criminal acts, such as crimes against humanity and war crimes, is the presence of an “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such”2. The Court, in previous cases, has established a high threshold for definitively determining genocidal intent, especially at the stage of the merits. In the absence of a “general plan to this effect,” the “intent to destroy, in whole or in part, a protected group” can only be inferred from “a pattern of conduct” if it is the “only reasonable inference that can be drawn” from the circumstances3.

IX. The Purpose of Provisional Measures

  • It is important to underscore that, in the current phase of the proceedings, the Court’s role is not to definitively determine whether violations of rights under the Genocide Convention have occurred. Rather, the Court’s task is to assess whether these rights are “plausible” and whether there exists a “real and imminent risk of irreparable injury” to these rights before the Court delivers its final judgment on the merits4.

X. The Ambiguity Surrounding “Plausibility”

  • The Court’s jurisprudence does not offer an entirely clear definition of what “plausibility” entails. Recent rulings suggest that any request for provisional measures must be supported by some level of evidence substantiating the allegations, including indications of the presence of essential mental elements. In the current Order, the Court acknowledges the significance of specific genocidal intent without explicitly addressing its plausibility in the present case (refer to paragraphs 44 and 78).

XI. The Imperative of Plausibility for Genocidal Intent

  • Given the pivotal role of genocidal intent concerning rights under the Genocide Convention and the distinction between genocidal acts and other criminal acts, I firmly believe that the plausibility of this mental element is indispensable at the provisional measures stage in cases involving allegations of genocide. This perspective is reinforced by the Court’s Order of 23rd January 2020 in The Gambia v. Myanmar. While the Court stated in paragraph 56 of that Order that the “exceptional gravity of the allegations” does not necessarily warrant a determination of genocidal intent at the present stage, it does not negate the need for plausibility. In the Court’s view, the facts and circumstances outlined in the preceding paragraphs are adequate to conclude that the rights under the Genocide Convention are plausible.

XII. The Importance of Plausible Genocidal Intent

  • It is crucial to emphasize that the existence of genocidal intent must be shown to be plausible within the given circumstances. In the same paragraph 56, the Court emphasizes that the Order is grounded in the facts and circumstances detailed in the preceding paragraphs. These circumstances include comprehensive reports by the Independent International Fact-Finding Mission on Myanmar. Each of these reports extensively examines and ultimately deems plausible the presence of genocidal intent9. Paragraph 55 of the aforementioned Order explicitly acknowledges the conclusion drawn in the reports that “on reasonable grounds . . . the factors allowing the inference of genocidal intent [were] present.” It was based on these findings regarding genocidal intent that the Court considered the rights under the Genocide Convention to be plausible. The Order of 23rd January 2020, therefore, underscores that the existence of plausible genocidal intent is a prerequisite for indicating provisional measures based on the Genocide Convention.

XIII. South Africa’s Assertions on Israel’s Military Operation and Genocidal Intent

It is pertinent to analyze South Africa’s assertions concerning Israel’s military operation and its alleged genocidal intent. South Africa contends that Israel’s military actions do not align with the Genocide Convention’s criteria for genocide. The key argument presented is that South Africa’s evidence differs significantly from the evidence considered in The Gambia v. Myanmar, a case where the Court found reasonable grounds to infer genocidal intent.

Firstly, South Africa’s evidence on Israel’s military operation has been found to be fundamentally distinct from the reports provided by the United Nations fact-finding mission on Myanmar’s “clearance operation” in 2016 and 2017. These Myanmar reports comprehensively detailed the involvement of military and security forces in committing atrocities against the Rohingya group, ultimately leading to the Court’s issuance of an Order on 23 January 2020. The Order indicated that there were reasonable grounds to infer the presence of genocidal intent.

In contrast, South Africa’s evidence on Israel’s military operation lacks similar detailed indications of genocidal intent. The Court has carefully examined various possible inferences from the available information, including security considerations. Despite this analysis, the evidence does not appear to present a “veritable check-list” of genocidal intent, as was the case in The Gambia v. Myanmar. Instead, the Court must assess whether other plausible inferences can be drawn from the available information.

In light of the above, the Court has considered that, given the circumstances, the rights of the Palestinian group in Gaza, as alleged by South Africa under Article II (a) to (d) of the Genocide Convention, remain plausible but not definitively established.

XIV. Assessing South Africa’s Evidence on Israel’s Military Operation

This opinion aims to address the adequacy of South Africa’s evidence and arguments concerning Israel’s military operation. While acknowledging the significant human suffering and destruction caused by Israel’s military actions, it is crucial to scrutinize the substance of South Africa’s claims.

The Court recognizes that the Applicant, South Africa, may not be in a position to provide detailed reports from an international fact-finding mission, akin to what was available in The Gambia v. Myanmar. However, it is essential for South Africa to move beyond highlighting the severe consequences of Israel’s military operation.

South Africa must engage with various aspects, including:

  • The stated purpose of Israel’s operation, which is primarily to “destroy Hamas” and secure the release of hostages.
  • Consideration of calls made to the civilian population to evacuate, indicating an effort to minimize civilian harm.
  • Official policies and orders issued to Israeli soldiers, emphasizing the avoidance of civilian casualties.
  • An evaluation of the conduct of opposing forces on the ground.
  • The facilitation of the delivery of humanitarian aid to the affected population.

These factors may collectively contribute to alternative plausible inferences regarding the alleged “pattern of conduct.” While these measures by Israel are not conclusive in themselves, they create a scenario where it is, at the very least, plausible that Israel’s military operation is not driven by genocidal intent.

It is noteworthy that South Africa has not sufficiently questioned or countered these underlying circumstances, which may have implications for the plausibility of the rights of Palestinians in Gaza under the Genocide Convention. Therefore, it is incumbent upon South Africa to address these factors comprehensively and engage with their potential impact on the case at hand.

XV: Military Operation and Genocidal Intent

  • The judge begins by expressing their perspective on the plausibility of the military operation in Gaza Strip having genocidal intent.
  • Despite their doubts about genocidal intent, the judge explains their vote in favor of Court-recommended measures.
  • The decision to support these measures is based on South Africa’s plausible claim about certain statements made by Israeli State officials posing a real and imminent risk to Palestinians’ rights under the Genocide Convention.
  • The judge clarifies that, at this stage of the proceedings, it is not necessary to determine if these statements amount to direct and public incitement to commit genocide.
  • The judge notes the ambiguity in some of these statements and highlights their potential contribution to a risk of genocide.
  • They refer to evidence presented by South Africa, which has not been contradicted by Israel, suggesting that parts of these statements have been echoed in a threatening manner by members of the Israeli armed forces.
  • The judge concludes that such statements may contribute to a “serious risk” of acts of genocide other than direct and public incitement, thus imposing an obligation on Israel to prevent genocide.

XVI: Discrepancies in Statements Regarding Humanitarian Assistance

  • The judge discusses the varying statements made by Israel and United Nations agencies regarding the access of Palestinians in the Gaza Strip to essential humanitarian assistance, particularly food, water, and other necessities.
  • United Nations agencies claim that there is a desperate lack of essential goods necessary for the survival of the Gaza Strip population.
  • The judge points out that these statements raise questions about whether Israeli authorities are unjustifiably restricting the delivery of such goods to the civilian population in Gaza or substantial parts of it.
  • Given the critical situation faced by the group of Palestinians in Gaza, the judge believes that greater weight should be given to the assessments made by United Nations agencies.
  • As a result, the judge votes in favor of measure (4), without specifying the details of this particular measure.

XVII: Plausible Rights and the Role of the Court

  • The  judge acknowledges South Africa’s efforts in presenting its case and asserts their view that some of the rights alleged by South Africa are plausible, albeit not all of them, at this preliminary stage of the proceedings.
  • The judge highlights the importance of the measures indicated by the Court in response to these plausible risks to the rights of Palestinians in the Gaza Strip, as outlined under the Genocide Convention.
  • They emphasize that these measures serve a dual purpose: to address certain plausible risks to Palestinians’ rights and to remind Israel of its obligations under the Genocide Convention.

This section underscores the judge’s belief in the significance of the measures proposed by the Court in the context of the ongoing legal proceedings and their potential impact on the protection of rights and the fulfillment of international obligations.


Declaration of Judge Xue

Section 1: Position of South Africa

The judge agreed with his colleagues in granting South Africa the prima facie right to bring proceedings against Israel for alleged violations of the Genocide Convention and feels obliged to offer a brief explanation of his position at this stage.

Section 2: Context of the Palestinian issue

  • The judge provided historical context, emphasizing that the issue of Palestine has been on the agenda of the United Nations since its inception.
  • The judge noted that Palestinian territory, including the Gaza Strip, is currently under Israeli occupation.
  • The judge stressed that the Palestinian people, including those in Gaza, were unable to exercise their right to self-determination.
  • Reference is made to the Wall Advisory Opinion and General Assembly resolution 57/107 of 3 December 2002, which states that “the United Nations has an ongoing responsibility towards the Palestinian question until the issue is resolved in all its aspects satisfactorily in accordance with international legitimacy.” This responsibility includes ensuring the protection of the Palestinian people under international law, in particular from acts of genocide.

Section 3: The situation in Gaza

The judge presented a comprehensive account of the situation in Gaza over the past 109 days, which included:

  • Noting hostilities between Israeli military forces and Hamas, resulting in a significant number of civilian casualties.
  • Highlighting Israeli military actions, encompassing ground operations and aerial bombardments targeting civilian infrastructure, hospitals, schools, and refugee camps.
  • Emphasizing the disruption of essential supplies, such as food, water, fuel, electricity, and telecommunications, alongside the ongoing denial of humanitarian assistance from outside sources.
  • Providing specific statistics indicating that at least 25,700 Palestinians were killed, with over 63,740 injured, and approximately 360,000 housing units destroyed or partially damaged.
  • Mentioning that about 75 percent of Gaza’s population, totaling 1.7 million individuals, were internally displaced.
  • Underlining that a majority of the victims were children and women.
  • Describing the dire humanitarian situation in Gaza, including deteriorating living conditions, severe hunger, a critical shortage of potable water, and the collapse of the medical and health system.
  • Acknowledging the imminent threat of contagious diseases.
  • Citing reports from the United Nations, specifically referencing the UN Office for the Coordination of Humanitarian Affairs (OCHA) and reports on the impact of hostilities in the Gaza Strip and Israel.

Section 4: Historical Perspective on Legal Standing

  • The judge began by referencing a historical context over sixty years ago when Ethiopia and Liberia had initiated legal proceedings against South Africa for its alleged breaches of obligations as the Mandatory Power in South West Africa.
  • The judge highlighted that, at that time, the Court had rejected the standing of those two applicants, citing a lack of legal interest in the cases.
  • They noted that this rejection had led to significant indignation among Member States of the United Nations and had negatively impacted the Court’s reputation.
  • The judge referenced the Barcelona Traction case, where the Court had acknowledged the existence of international obligations owed to the international community as a whole, known as obligations erga omnes. However, they clarified that the Court had not addressed the issue of standing in that judgment.
  • The judge asserted that, in cases involving a protected group like the Palestinian people, it had been less contentious that the international community had shared a common interest in their protection.
  • In the judge’s view, this case had fallen within the category where the Court should have recognized a State party’s legal standing under the Genocide Convention to initiate proceedings based on erga omnes partes, invoking another State party’s responsibility for breaching its obligations under the Genocide Convention.

Section 5: Agreement with Provisional Measures

  • The judge concluded his opinion by expressing agreement with the provisional measures outlined in the Court’s order and affirmed that those measures were justified given the circumstances presented in the case.

Detailed Analysis of Judge Ad Hoc Barak’s Opinion

This document presents an in-depth analysis of the separate opinion of Judge Ad Hoc Barak regarding the case brought by South Africa to the International Court of Justice about the military operations in the Gaza Strip.

Context of the Case

South Africa approached the International Court of Justice seeking an immediate suspension of military operations in the Gaza Strip. The Court, however, rejected South Africa’s main contention. Instead, it focused on recalling Israel’s existing obligations under the Genocide Convention, affirming Israel’s right to self-defense, and emphasizing the need for humanitarian aid in Gaza.

Key Points:

  • Rejection of South Africa’s Request: The Court’s decision to reject the request for immediate suspension signifies a nuanced understanding of the conflict.
  • Israel’s Rights and Obligations: The Court’s emphasis on Israel’s right to defend its citizens while adhering to the Genocide Convention highlights the complex balance of national security and international obligations.

Emphasis on International Humanitarian Law

The Court underscored the binding nature of international humanitarian law on all parties involved in the Gaza Strip conflict, including Hamas. The Court expressed grave concerns regarding the fate of hostages taken by Hamas and other armed groups on 7 October 2023, calling for their immediate and unconditional release.

Analytical Observations:

  • Universality of Humanitarian Law: The emphasis on international humanitarian law reinforces its universal applicability and importance in conflict situations.
  • Concern for Hostages: The specific mention of hostages indicates the Court’s attention to individual human rights amidst broader conflict scenarios.

Genocide: An Autobiographical Remark

Judge Barak delves into the historical and personal significance of the term “genocide,” coined by Raphael Lemkin in 1942, and its deep connection to the Jewish people, particularly during the Holocaust.

Personal Historical Context:

  • Holocaust Experience: Judge Barak narrates his personal experience during the Holocaust, including the occupation of Kaunas and the horrific events that ensued, highlighting the gravity and personal impact of genocide.
  • Survival and Resilience: His survival story, involving hiding and eventual liberation, illustrates the human capacity for resilience amidst extreme adversity.

Influence on Judicial Perspective

Judge Barak discusses how his personal history has shaped his views on the State of Israel, human dignity, and the importance of human rights.

Insights:

  • State of Israel’s Importance: The judge’s view that the existence of Israel might have altered the fate of Jews during World War II underlines the significance of national sovereignty in providing refuge and security.
  • Belief in Human Dignity: Despite the attempts to dehumanize during the Holocaust, the preservation of humanity and dignity in dire circumstances profoundly influences his judicial philosophy.

Israel’s Legal Framework and International Law

The opinion highlights Israel’s democratic structure, emphasizing the balance between national security and human rights, and how this is reflected in the rulings of the Israeli Supreme Court.

Case Examples:

  • Humanitarian Aid During Military Operations: Instances where the Supreme Court ordered the army to provide humanitarian aid and repair damages during ongoing operations.
  • Targeted Killings Judgment: The ruling that Israel must act in accordance with international humanitarian law, avoiding excessive civilian harm.

Role of International Law in Military Conduct

Judge Barak emphasizes the embeddedness of international law in the actions of the Israeli Defense Forces and the Israeli judicial system.

Key Observations:

  • Guidance of International Law: The notion that every Israeli soldier carries the rules of international law in their “backpack” symbolizes the deep integration of these laws in military operations.
  • Democratic Constraints in Combating Terrorism: The adherence to law and democratic values, even when fighting non-compliant adversaries like Hamas, showcases the commitment to legal and ethical standards.

Prohibition of Torture and Protection of Human Rights

The Israeli Supreme Court’s stance against torture during interrogations and its protection of religious sites, clergy, and captives is highlighted.

Institutional Safeguards and Accountability:

  • Ethical Standards of IDF: The Code of Ethics for the Israeli Defense Forces, emphasizing the responsible use of power and protection of civilians and prisoners.
  • Judicial Oversight: The role of the Attorney General and Military Advocate General in upholding legal standards, with the possibility of judicial review.

Israel’s Commitment to the Rule of Law and International Humanitarian Law

Balancing National Security and Human Rights

  • Democratic Framework: Israel is characterized as a democratic state with a robust legal system and an independent judiciary. The nation prioritizes maintaining a balance between national security and the protection of human rights.
  • Interplay of Security and Rights: The principle that security and human rights are mutually dependent is emphasized. The judge asserts that democracy thrives on the equilibrium between collective security and individual liberties.

Supreme Court’s Role in Balancing Interests

  • Case of Military Operation in Gaza: The Supreme Court’s intervention in a military operation in Gaza highlights its role in upholding human rights. The court mandated the repair of water pipes damaged by military tanks and ordered the provision of humanitarian aid to civilians, along with a pause in hostilities for the burial of the dead.
  • Targeted Killings Judgment: This ruling underlines Israel’s commitment to international humanitarian law, specifically the directive to avoid targeting terrorists if it results in excessive civilian harm.

International Law in Military Conduct

  • Guidance for Soldiers: Israeli soldiers are portrayed as being guided by international law in their operations. This metaphorical depiction of soldiers carrying the rules of international law in their “backpack” underscores the ingrained nature of these laws in military conduct.
  • Democratic Constraints in Counter-Terrorism: The opinion notes the challenges faced by a democratic state in combating terrorism, particularly against groups like Hamas, which are seen as not adhering to international law. The insistence on Israel’s part to abide by the law and uphold democratic values is stressed.

Judicial Oversight and Human Rights Protection

  • Prohibition of Torture: The Israeli Supreme Court has ruled against the use of torture during the interrogation of terrorists, emphasizing the adherence to human rights standards.
  • Protection of Religious Sites and Clergy: The court has also advocated for the safeguarding of religious sites, clergy, and the provision of fundamental guarantees to all captives.
  • Public and Military Support: Despite some criticism within Israel, these rulings are generally supported by the public and upheld by the military.

Ethical Standards and Accountability in the Israeli Army

  • Code of Ethics of the Israeli Defense Forces: The IDF’s ethical code is detailed, focusing on the responsible use of power and the protection of civilians and prisoners. It emphasizes humanity in both combat and routine situations.
  • Enforcement of Norms: When violations occur, the Israeli legal system, including the Attorney General and the Military Advocate General, takes necessary actions to ensure accountability, with decisions subject to judicial review.

Institutional Safeguards and Commitment to Law and Human Life

  • Legal Advice During Hostilities: Israel’s legal framework provides real-time advice during military operations, ensuring compliance with international law.
  • Military Objectives and Proportionality: Military strikes are scrutinized for their alignment with defined military objectives and the rule of proportionality.
  • Collective Commitment: The document concludes by emphasizing Israel’s deep-rooted commitment to the rule of law and the value of human life, ingrained in its collective memory, institutions, and traditions.

The Court’s Prima Facie Jurisdiction

Affirmation of Jurisdiction and Question of Good Faith

  • Prima Facie Jurisdiction: The Court affirmed its prima facie jurisdiction to indicate provisional measures, as noted in the Order, paragraph 31.
  • South Africa’s Approach Questioned: The judge expresses doubts about the good faith behind South Africa’s approach. After a diplomatic communication from South Africa on 21 December 2023 concerning Gaza, Israel responded with an offer for consultations, which South Africa did not accept.
  • Preference for Political Negotiations: The judge reflects on historical precedents, such as the 1978 Camp David Accords between Egypt and Israel, to illustrate that political negotiations, often with a third-party facilitator like the United States, have been more effective in resolving Middle Eastern conflicts than judicial actions.
  • Missed Opportunity for Dialogue: The judge views South Africa’s decision to proceed with legal action instead of engaging in diplomatic discussions as a missed opportunity, especially in light of the potential to address the humanitarian situation in Gaza through dialogue.

Limitations in Addressing the Conflict Involving Hamas

  • Hamas’ Non-Participation: A significant complication in this case is the absence of Hamas, the other belligerent in the armed conflict in Gaza, from the proceedings. This absence makes it impossible for the Court to direct measures at Hamas in the operative clause of its Order.
  • Jurisdictional Challenges: While the non-participation of Hamas does not impede the Court’s jurisdiction, it poses a challenge in determining suitable measures or remedies. The situation highlights the limitations of judicial interventions in complex international conflicts where not all parties are represented or accountable to the Court’s decisions.

The Armed Conflict in Gaza

Context of the Case

  • Initial Events: The Court recalls the events of 7 October 2023, involving an attack by Hamas and Israel’s subsequent military response. However, the judge notes that the Court’s account does not fully capture the complex situation that unfolded in Gaza since that day.

Detailed Account of the 7 October Attack

  • Scale and Nature of Attack: Over 3,000 Hamas terrorists, along with members of the Palestinian Islamic Jihad, initiated a multi-faceted assault on Israeli territory, involving a barrage of rockets and ground infiltration.
  • Impact on Civilians: The attack resulted in widespread alerts across Israel, leading to civilian casualties in shelters and homes, and horrific violence at the Reim Nova Music Festival. The judge reports more than 1,200 civilian deaths, including infants and the elderly, 240 kidnappings, and over 12,000 rockets fired at Israel since that day.

Israel’s Military Response

  • Objective of Operation: Israel launched a military operation with the declared goals of dismantling Hamas, destroying its military and governmental capabilities, rescuing hostages, and securing its borders.

Ongoing Threat from Hamas

  • Hamas’s Stance: The judge highlights Hamas’s vow to “repeat October 7” and describes Hamas as an existential threat to Israel.
  • Tactics of Hamas: The judge accuses Hamas of war crimes, including the use of civilian infrastructure for military purposes, endangering its own population, and indiscriminate rocket attacks.

Examples of Hamas’s Actions

  • Misuse of Humanitarian Aid: The judge alleges that Hamas diverts humanitarian aid for its own purposes.
  • Tunnel Network: Tunnels are claimed to be used for Hamas fighters rather than civilian protection.
  • Compromising Civilian Sites: The judge claims schools and hospitals in Gaza are used for military activities, undermining their civilian nature.

Situation of Hostages

  • Hostage-Taking by Hamas: The act of taking hostages on 7 October is described as a grave breach of the Geneva Conventions and criminalized under the Rome Statute.
  • Lack of Information and Access: There is no information on the status of the hostages, and Hamas has reportedly denied ICRC access, extending the suffering of the hostages and their families.

Acknowledgement of Palestinian Suffering

  • Judge’s Personal Reflection: The judge expresses deep personal regret for the loss of innocent Palestinian lives and the dire humanitarian situation in Gaza, including potential food and water shortages and disease outbreaks.

Context of Israel’s Situation

  • Impact on Israel: The judge describes the profound impact of the 7 October attack on Israel’s sense of security and the ongoing fear of additional attacks.
  • Importance of Context in Legal Analysis: The judge argues that this immediate context should have been more central in the Court’s reasoning, as it forms an essential backdrop for analyzing Israel’s actions, even while acknowledging Israel’s legal obligations.

The Appropriate Legal Framework for Analyzing the Situation in Gaza

Basis of South Africa’s Appeal

  • Genocide Convention as the Jurisdictional Basis: South Africa approached the Court based on the Genocide Convention, specifically Article IX, which concerns the Court’s jurisdiction over disputes related to the interpretation, application, or fulfillment of the treaty, including state responsibility for genocide.
  • Relevance of the Genocide Convention: The judge raises a question about the suitability of the Genocide Convention as the legal framework for analyzing the Gaza situation.

International Humanitarian Law (IHL) as the Appropriate Framework

  • Preferential Framework: The judge argues that International Humanitarian Law, rather than the Genocide Convention, should be the primary legal lens through which the Gaza situation is analyzed.
  • Principles of IHL: IHL stipulates that harm to civilians and civilian infrastructure should not be disproportionate to the anticipated military advantage. The unintentional loss of innocent lives, while tragic, is not automatically deemed unlawful under IHL, provided it adheres to the principles and rules of IHL.

Distinction Between Genocide and War Operations

  • Interpretation by the Drafters of the Genocide Convention: The judge cites the drafters of the Genocide Convention, who differentiated between the concept of genocide and the losses suffered by civilians in wartime. The drafters acknowledged that civilian losses, even heavy ones, during military operations do not typically constitute genocide. Such losses are seen as an inevitable part of modern warfare, where destruction of infrastructure and consequent civilian casualties occur.
  • Limiting Civilian Losses: The drafters suggested that while limiting civilian losses is desirable, this concern falls within the regulation of conditions of war, not the domain of genocide.

Obligation to Investigate Violations of IHL

  • Responsibility for Investigating Violations: The judge emphasizes that any violations of International Humanitarian Law occurring in the context of the armed conflict must be thoroughly investigated and prosecuted by the competent Israeli authorities. This point underscores the necessity for accountability and legal scrutiny in the conduct of military operations.

Lack of Intent

The Element of Intent in Genocide

  • Definition: Genocide centrally involves the intent to destroy, wholly or partially, a national, ethnic, racial, or religious group.
  • Establishing Intent: International courts, including the International Criminal Tribunal for Rwanda (ICTR), have set high standards for proving the specific intent required for genocide, as seen in the Akayesu case.

State Responsibility in Genocide Cases

  • ICTY and ICJ Precedents: The International Criminal Tribunal for Yugoslavia (ICTY) and the International Court of Justice (ICJ) adopted similar standards. In cases like Bosnia and Herzegovina v. Serbia and Montenegro, and Croatia v. Serbia, the ICJ concluded that the atrocities, except for Srebrenica, lacked the specific intent to destroy a particular group, thus not constituting genocide.

Proof of Intent at Preliminary Stage

  • Different Standard for Preliminary Stage: At this stage, the proof of intent does not need to conclusively show genocide but must be plausible enough to consider the claim.

Disagreement with the Court’s Approach

  • Question of Plausibility and Intent: The judge expresses disagreement with the Court’s approach to determining the plausibility of intent, suggesting a different interpretation might be necessary.

Criteria for Provisional Measures

  • Plausibility of Rights Assertion: The Court indicates provisional measures only if the rights asserted are plausible. In the present case, the judge finds the Court’s conclusion that the Palestinian rights to be protected from genocide are plausible to be based on insufficient evidence.

Comparison with the Gambia Case

  • Evidence Standard: The judge contrasts the current case with the Gambia v. Myanmar case, where the ICJ had extensive evidence, including reports from the Independent International Fact-Finding Mission (IIFFM), to conclude plausibility.

Assessment of Evidence in the Present Case

  • Lack of Comparable Evidence: The judge notes that the evidence in the present Gaza case, including reports from OCHA, WHO, and UNRWA, does not provide a sufficient basis to infer a plausible intent of genocide.

Evaluation of Death and Injury Figures

  • Questionable Data Source: The judge criticizes the reliance on figures from the Ministry of Health of Gaza, controlled by Hamas, and points out their lack of distinction between civilians and combatants or military objectives and civilian objects.

Inappropriate Language by Israeli Officials

  • Investigation of Israeli Officials’ Statements: The judge acknowledges that some Israeli officials used inappropriate language, but argues that this is not sufficient to infer an intent to commit genocide.

Israel’s Opposing Intent

  • Measures to Minimize Civilian Impact: Israel’s efforts to minimize harm to civilians, such as supplying water, medical supplies, and avoiding civilian casualties, are cited as evidence of a lack of genocidal intent.

Court’s Failure to Consider Israeli Measures

  • Overlooked Evidence: The judge is critical of the Court for not adequately considering Israel’s actions and statements when assessing the intent.

Comparison with the Gambia Case

  • Different Evidence Standard: The judge argues that, unlike the Gambia case, where there was compelling evidence of atrocities against the Rohingya, the evidence in the present case does not meet the same standard.

Concerns Over Misapplication of the Genocide Convention

  • Potential Misuse: The judge expresses concern that applying the Genocide Convention inappropriately could undermine its integrity and dilute the concept of genocide. He warns against the potential misuse of the Convention in limiting the right of self-defense, especially in the context of terrorist attacks.

The Measures Indicated by the Court

The Court’s Provisional Measures

  • Lack of Findings on Genocide Convention Claims: The judge notes that the Court has not made any findings regarding South Africa’s claims under the Genocide Convention at this preliminary stage. The claims remain unproven, and the conclusions do not prejudge the outcome.

Conditions for Indicating Provisional Measures

  • Dissent on Genocidal Intent: The judge disagrees with the argument about the plausibility of rights related to genocidal intent, leading to his vote against the first and second provisional measures. However, he acknowledges that these measures restate obligations Israel already has under the Genocide Convention.

Support for Third and Fourth Measures

  • Public Incitement Measure: The judge voted in favor of the third provisional measure regarding acts of public incitement, hoping it would decrease tensions and discourage harmful rhetoric.
  • Humanitarian Aid Measure: The fourth measure, aimed at ensuring the delivery of humanitarian aid to Gaza, was supported due to the judge’s humanitarian convictions and the belief that it aligns with Israel’s obligations under International Humanitarian Law (IHL).

Lack of Measures for Hostage Protection

  • South Africa’s Role in Hostage Release: The judge expresses regret that the Court could not order South Africa to take measures to protect the hostages held by Hamas and facilitate their release, viewing it as a missed opportunity for South Africa to positively contribute to ending the conflict.

Opposition to Fifth Provisional Measure

  • Preservation of Evidence: The judge voted against the fifth measure concerning the preservation of evidence, arguing that there is no basis to the claim that Israel has destroyed or concealed evidence.

Personal Reflection on Accusations of Genocide

  • Genocide and Personal History: The judge, a genocide survivor, finds the accusation of Israel committing genocide personally challenging, emphasizing his commitment to the objectives of the Genocide Convention and the rule of law in Israel.

Implications of Halting Israel’s Military Operation

  • Consequences of Granting South Africa’s Request: The judge argues that if the Court had ended Israel’s military operation in Gaza, it would have left Israel defenseless against ongoing assaults, hindering its ability to protect its citizens.

Role as an Ad Hoc Judge

  • Position of Neutrality and Justice: Although appointed by Israel, the judge clarifies that he is not an agent of Israel. His focus is on morality, truth, and justice, and he highlights the sacrifices made by Israelis in a conflict he views as not of their choosing.

Declaration of Judge Bhandari

Humanitarian Situation in Gaza and Provisional Measures

Agreement with Court’s Order

  • Additional Perspective: Judge Bhandari agrees with the Court’s reasoning and adds further insights to the Order.

Background of the Conflict

  • Condemnation of Attacks: The judge condemns the attacks on Israeli civilians on 7 October 2023, noting the heavy toll of 1,200 Israeli lives lost and 5,500 wounded.

Humanitarian Crisis in Gaza

  • Civilian Casualties and Damage: Over 25,000 Gazan civilians reportedly killed, thousands missing, and tens of thousands injured. Significant destruction of homes, businesses, hospitals, and schools, with 85% of Gaza’s population displaced.

Relevance of International Law

  • Applicable Legal Frameworks: The judge notes the relevance of international humanitarian law in addition to the Genocide Convention in armed conflicts.

Nature of Provisional Measures

  • Purpose and Power of the Court: Under Article 41(1) of the Statute, the Court has the power to indicate provisional measures to preserve the rights of either party in a dispute.

Limitations of Current Proceedings

  • Preliminary Stage: The Court has not yet fully argued the case or established a complete factual record, so it is not deciding on the actual claims under the Genocide Convention or the relief requested by South Africa.

Decision on Provisional Measures

  • Distinct Legal Tests and Thresholds: The decision on South Africa’s request for provisional measures involves different legal criteria than a decision on the merits of the case.

Consideration of Evidence for Provisional Measures

  • Evaluating Plausibility of Rights: The Court must consider available evidence, even if preliminary, to assess the plausibility of the rights claimed. The widespread destruction in Gaza and loss of life are critical factors in this evaluation.

Determining Genocidal Intent at Provisional Stage

  • No Final Judgment on Intent: The Court is not deciding whether genocidal intent exists but whether rights under the Genocide Convention are plausible. Previous cases, such as The Gambia v. Myanmar, are referenced to illustrate the Court’s approach.

Justification of Provisional Measures

  • Sufficient Evidence at Current Stage: Given the lower standards for provisional measures compared to the merits stage, the current evidence justifies the Court’s decision to grant provisional measures.

Call for Immediate Action

  • Hostilities and Hostage Release: The judge urges all parties in the conflict to immediately cease hostilities and unconditionally release any remaining hostages captured on 7 October 2023.

APPENDIX – 1


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REFERENCE LINK : https://www.icj-cij.org/case/192

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