International Court of Justice orders Israel to prevent acts of genocide |03 February 2024
A synopsis of the order of the International Court of Justice dated January 26, 2024 on the application by South Africa against Israel, for the indication of provisional measures for alleged violations in the Gaza Strip of Israel’s obligations under the genocide convention.
By Justice Anthony F. T. Fernando, President of the Court of Appeal
Application by South Africa
On December 29, 2023, the Republic of South Africa filed in the registry of the International Court of Justice, an application instituting proceedings against the State of Israel concerning alleged violations in the Gaza Strip of obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.
In its application, South Africa sought to find the International Court of Justice’s (ICJ) jurisdiction on article 36, paragraph 1, of the Statute of the ICJ and on article IX of the Genocide Convention. The application contained a request for the indication of provisional measures submitted, with reference to article 41 of the ICJ Statute and articles 73, 74 and 75 of the Rules of ICJ.
Request for provisional measures
The ICJ may indicate provisional measures under article 41 only if the provisions relied on by the applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but it need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case as was determined in the Provisional Measures Order, of March 16, 2022 in the case of Ukraine v Russian Federation. (I.C.J. Reports 2022 (I), pp. 217-218, para. 24).
ICJs jurisdiction under Article IX of the Genocide Convention, conditional on the existence of a dispute
Article IX of the Genocide Convention makes the court’s jurisdiction conditional on the existence of a dispute relating to the interpretation, application or fulfilment of the Convention. A dispute is “a disagreement on a point of law or fact, a conflict of legal views or of interests” between parties as was determined in Mavrommatis Palestine Concessions, Judgment No. 2, 1924. (P.C.I.J., Series A, No. 2, p. 11). In order for a dispute to exist, “It must be shown that the claim of one party is positively opposed by the other” as was determined in the judgment on Preliminary Objections, in the case of Ethiopia v South Africa and Liberia v South Africa. (I.C.J. Reports 1962, p. 328). The two sides must “‘hold clearly opposite views concerning the question of the performance or non-performance of certain international obligations” as was held in the judgment on the preliminary objections in the case of Nicaragua v Colombia. (I.C.J. Reports 2016 (I), p. 26, para. 50, citing Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74).
The court stated in the instant case, that to determine whether a dispute exists in the present case, the court cannot limit itself to noting that one of the parties maintains that the Convention applies, while the other denies it, as was held in the Provisional Measures Order, of March 16, 2022 in the case of Ukraine v Russian Federation (I.C.J. Reports 2022 (I), pp. 218-219, para. 28). The ICJ had stated that, for the purposes of deciding whether a dispute exists between the parties at the time of the filing of the application, it takes into account in particular any statements or documents exchanged between the parties, as well as any exchanges made in multilateral settings. In their order, the ICJ stated that “the existence of a dispute is a matter for objective determination by the court; it is a matter of substance, and not a question of form or procedure”.
The ICJ had taken into consideration statements made by South Africa in various multilateral settings, including the United Nations Security Council and the General Assembly that Israel was committing genocide, the Note Verbale sent by the Department of International Relations and Cooperation of South Africa to the Embassy of Israel in Pretoria, and Israel’s response to it. It was Israel’s position that South Africa did not give Israel a reasonable opportunity to respond to the allegations of genocide before South Africa filed its application. Israel had argued that South Africa’s unilateral assertions against Israel, in the absence of any bilateral interaction between the two States prior to the filing of the application, do not suffice to establish the existence of a dispute in accordance with article IX of the Genocide Convention. Israel had also argued that the acts complained of by South Africa were not capable of falling within the provisions of the Genocide Convention because the necessary specific intent to destroy, in whole or in part, the Palestinian people as such has not been proved, even on a prima facie basis. According to Israel, in the aftermath of the atrocities committed on October 7, 2023, facing indiscriminate rocket attacks by Hamas against Israel, it acted with the intention to defend itself, to terminate the threats against it and to rescue the hostages. Israel adds moreover that its practices of mitigating civilian harm and of facilitating humanitarian assistance demonstrate the absence of any genocidal intent.
Having considered the material placed before it both by South Africa and Israel the ICJ was of the view that the parties appear to hold clearly opposite views as to whether certain acts or omissions allegedly committed by Israel in Gaza amounted to violations by Israel of its obligations under the Genocide Convention and that the said elements are sufficient at this stage to establish prima facie the existence of a dispute between the parties relating to the interpretation, application or fulfilment of the Genocide Convention.
ICJ not required to ascertain whether any violations of Israel’s obligations under the Genocide Convention have ‘in fact’ occurred at the stage of an application under article IX of the Convention
At the present stage of the proceedings, the ICJ was not required to ascertain whether any violations of Israel’s obligations under the Genocide Convention have in fact occurred. Such a finding could be made by the court only at the stage of the examination of the merits of the present case. The task of the ICJ when a request for the indication of provisional measures is made is to establish whether the acts and omissions complained of by the applicant appear to be capable of falling within the provisions of the Genocide Convention.
In the court’s view, at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention and thus it had jurisdiction to entertain the case and therefore did not accede to Israel’s request to reject the request for the indication of provisional measures submitted by South Africa and that the case be removed from the General List.
Locus standi of South Africa
Israel did not challenge that South Africa had locus standi to bring the present proceedings before the ICJ. In the judgment on the preliminary objections, in the case of The Gambia v Myanmar (I.C.J. Reports 2022 (II), pp. 516-517, paras. 107-108 and 112), where article IX of the Genocide Convention was also invoked, the ICJ observed that any State party to the Genocide Convention may invoke the responsibility of another State party, including through the institution of proceedings before the Court, with a view to determining the alleged failure to comply with its obligations ‘erga omnes partes’ [obligations owed by any State party to all the other State parties] under the Convention and to bringing that failure to an end. In other words, all the State parties to the Convention have a common interest to ensure the prevention, suppression and punishment of genocide, by committing themselves to fulfilling the obligations contained in the Convention and which implies that the obligations in question are owed by any State party to all the other States parties to the convention. South Africa and Israel are parties to the Genocide Convention. Israel deposited its instrument of ratification on March 9, 1950 and South Africa deposited its instrument of accession on December 10, 1998. Neither of the parties has entered a reservation to Article IX or any other provision of the Convention. The court thus concluded, prima facie, that South Africa has standing to submit to it, the dispute with Israel concerning alleged violations of obligations under the Genocide Convention.
ICJ to be satisfied that the rights asserted by the Applicant seeking provisional measures under Article 41 of the Statute are Plausible.
In the Provisional Measures Order, in the case of Ukraine v Russian Federation (Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 223, para. 50) it was stated that the ICJ may indicate provisional measures only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible. The Court is not at this stage called upon to determine definitively whether the rights which South Africa wishes to see protected exist. The object being the preservation of the respective rights claimed by the parties in a case, pending its decision on the merits thereof.
There needs to be a link between the rights whose protection is sought and the provisional measures being requested.
The need for the existence of a linkbetween the rights whose protection is sought and the provisional measures being requested was emphasised in the Provisional Measures Order, in the case of Ukraine v Russian Federation (March 16, 2022, I.C.J. Reports 2022 (I), p. 224, para. 51)
Risk of irreparable prejudice and urgency
In the Provisional Measures Order, in the case of Ukraine v Russian Federation (16 March 2022, I.C.J. Reports 2022 (I), p. 226, para. 65) it was held that the court, pursuant to Article 41 of its Statute, has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings or when the alleged disregard of such rights may entail irreparable consequences.
However, the power of the court to indicate provisional measures will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court gives its final decision. The condition of urgency is met when the acts susceptible of causing irreparable prejudice can “occur at any moment” before the court makes a final decision on the case (Provisional Measures Order, in the case of Ukraine v Russian Federation (March 16, 2022, I.C.J. Reports 2022 (I), p. 226, para. 66). It was also South Africa’s position that, “should Israel’s violations of the Genocide Convention go unchecked”, the opportunity to collect and preserve evidence for the merits stage of the proceedings would be seriously undermined, if not lost entirely.
Having considered the material before it, the ICJ had been of the view that there was urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, before it gives its final decision.
Israel’s argument, that the Court must, in the present case, consider and “balance” the respective rights of South Africa and Israel
It was Israel’s position that it bears the responsibility to protect its citizens, including those captured and held hostage as a result of the attack that took place on October 7, 2023 and thus claimed, that its right to self-defence is critical to any evaluation of the present situation.
Mens Rea of the offence of genocide
In the judgment of Bosnia and Herzegovina v Serbia and Montenegro (I.C.J. Reports 2007 (I), p. 126, para. 198.), for acts to fall within the scope of article II of the Genocide Convention, the intent must be to destroy at least a substantial part of the particular group and the part targeted must be significant enough to have an impact on the group as a whole. The ICJ was of the view that the Palestinians appear to constitute a distinct “national, ethnical, racial or religious group”, and hence a protected group within the meaning of article II of the Convention. The Court observed that, according to United Nations sources, the Palestinian population of the Gaza Strip comprises over 2 million people. Palestinians in the Gaza Strip form a substantial part of the protected group.
Power of the ICJ to indicate measures that are, in whole or in part, other than those requested under article 75, paragraph 2, of the Rules of Court
This power had been exercised in the past on several occasions, for example in the Provisional Measures Order, in the case of The Gambia v Myanmar (Order of 23 January 2020, I.C.J. Reports 2020, p. 28, para. 77). In the present case, having considered the terms of the provisional measures requested by South Africa and the circumstances of the case, the Court had found that the measures to be indicated need not be identical to those requested.
ICJ calls for the immediate and unconditional release of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas.
The court had deemed it necessary to emphasise that all parties to the conflict in the Gaza Strip are bound by international humanitarian law and was gravely concerned about the fate of the hostages abducted during the attack in Israel on October 7, 2023 and held since then by Hamas and other armed groups, and has called for their immediate and unconditional release.
Do orders of ICJ on provisional measures have a binding effect and create international obligations?
The court has recalled that its Orders on provisional measures under article 41 of the Statute have binding effect and thus create international legal obligations for any party to whom the provisional measures are addressed as stated in the Provisional Measures Order, in the case of Ukraine v Russian Federation (16 March 2022, I.C.J. Reports 2022 (I), p. 230, para. 84).
Decision of the ICJ on the application of South Africa to indicate provisional measures
The court had concluded on the basis of the material before it and on a consideration of all matters that the conditions required by its Statute for it to indicate provisional measures are met. It was therefore necessary, pending its final decision, for the court to indicate certain measures in order to protect the rights claimed by South Africa that the court has found to be plausible.
Provisional measures indicated by the ICJ in its majority decision
(1) The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of article II of this Convention, in particular: - (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group.
(2) The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above.
(3) The State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip.
(4) The State of Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.
(5) The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip.
(6) The State of Israel shall submit a report to the court on all measures taken to give effect to this order within one month as from the date of this order.
Comments on the provisional measures indicated by the ICJ
ICJ has not specifically stated in its order on provisional measures, that Israel shall immediately suspend its military operations in and against Gaza as requested by South Africa, nor that there shall be no steps in furtherance of the military operations taken by Israel and shall refrain from any action and shall ensure that no action is taken which might aggravate or extend the dispute before the court makes it decision or make it more difficult to resolve. It had however in the body of its order stated that it considers that Israel must ensure with immediate effect that its military forces do not commit any of the acts set out in point (1) of the provisional measures set out above.
There is also no specific order against expulsion and forced displacement of Palestinians from their homes.
There is also no specific order that Israel shall not act to deny or otherwise restrict access by fact-finding missions, international mandates and other bodies to Gaza to assist in ensuring the preservation and retention of said evidence.
ICJ had given Israel a period of one month from the date of its order to submit a report to the court on all measures taken to give effect to its order, although the period for reporting sought by South Africa had been one week.
I am of the view that some of the provisional measures sought by South Africa have not been granted probably in view of Israel’s position that it bears the responsibility to protect its citizens, including those captured and held hostage as a result of the attack that took place on October 7, 2023 and in view of its claim to the right to defend itself, which needs to be looked into before any evaluation of the present situation. The absence of a specific order against expulsion and forced displacement of Palestinians from their homes may be due to Israel’s claim that Hamas fighters are hiding in homes, hospitals and schools in Gaza and using Palestinian civilians as human shields to carry out their attacks under cover. A specific order that Israel shall not act to deny or otherwise restrict access by fact-finding missions, international mandates and other bodies to Gaza probably had not been granted as it would be difficult to distinguish between genuine fact-finding missions, and other bodies, from Hamas fighters in camouflage in a time of crisis. The ICJ obviously would have been of the view that the one-week period sought by South Africa for Israelto submit a report to the ICJ on all measures taken to give effect to the court’s order was not sufficient and thus have given Israel one month to give effect to the court’s order. The ICJ when acting under the provisions of article 41 of the statute has to carry out a balancing act between South Africa’s claim that Israel is guilty of committing genocide and Israel’s claim that it bears the responsibility to protect its citizens, and thus have a right to self-defence.