Nithyakalyani Narayanan. V
After concluding that it was “plausible” that Israel was violating Palestinians’ rights under the Convention on the Prevention and Punishment of the Crime of Genocide, the International Court of Justice (ICJ) in the Hague granted a number of interim remedies to protect those rights on January 26, 2024. This order includes a number of steps “to protect the rights claimed by South Africa that the Court has found to be plausible”, but it is not a final ruling in the case.
The Court mentioned that it is not compelled to investigate whether Israel has violated any of its responsibilities under the Genocide Convention at this point in the proceedings. The ICJ clarified before deciding that it had the authority to investigate the problem and that South Africa had the standing to bring its claim against Israel that such a finding could only be made by the Court at the level of the consideration of the merits of the current case.
The order was issued following South Africa’s complaint to the ICJ, in which it claimed that Israel had violated the Genocide Convention in the Gaza Strip. Invoking the Convention, South Africa contended that Israel’s recent actions of aggression in Gaza constituted a violation of it.
Israel was to be compelled to stop any conduct that violated the Genocide Convention, according to the application. According to South Africa, Israel must take all appropriate steps to stop the genocide against the Palestinian people. In addition, South Africa demanded that Israel be directed to gather and preserve any proof of genocide against Palestinians in Gaza, including individuals who have been driven from the region.
Out of 17 judges of the ICJ, 15 judges unanimously issued different forms of temporary protection. President Joan E. Donoghue of the United States of America, Vice-President Kirill Gevorgian of Russia, Judge Peter Tomka of Slovakia, Judge Ronny Abraham of France, Judge Mohamed Bennouna of Morocco, Judge Abdulqawi Ahmed Yusuf of Somalia, Judge Xue Hanqin of China, Judge Bhandari of India, Judge Patrick Lipton Robinson of Jamaica, Judge Nawaf Salam of Lebanon, Judge Iwasawa Yuji of Japan, Judge Georg Nolte of Germany, Judge Hilary Charlesworth of Australia, Judge Leonardo Nemer Caldeira Brant of Brazil, and ad hoc Judge Dikgang Ernest Moseneke of South Africa are the fifteen judges who rendered this decision. Judge Julia Sebutinde (Uganda) dissented from the decision on all counts. Ad hoc judge Aharon Barak, appointed by Israel, disapproved of most of the interim measures, disagreeing on all but two of them.
Despite South Africa’s request, a cease-fire is not included in the interim measures. The following are the issued provisional directives:
- Israel must do everything in its ability to stop activities that fall under Article II of the Prevention of Genocide Convention with regard to Palestinians living in Gaza. The “acts” in question consist of the following: (a) killing “members of the group,” or Palestinians; (b) seriously harming Palestinians physically or psychologically; (c) purposefully subjecting the group to conditions of life calculated to cause its physical destruction, either entirely or in part; and (d) enforcing laws meant to prevent births within the group.
- Regarding the Palestinian group residing in the Gaza Strip, Israel must do everything within its power to stop and punish blatant and open incitement to violence. Judge Sebutinde of Uganda was the only judge who disagreed with the 16 judges who supported the extension of this measure.
- In order to alleviate the harsh living conditions that Palestinians in the Gaza Strip endure, Israel must act swiftly and decisively to facilitate the delivery of much-needed humanitarian aid and essential services. Judge Sebutinde disagreed with this too, the only judge to disagree.
- Israel needs to take decisive action to stop the destruction of evidence and make sure that it is preserved in relation to claims that members of the Palestinian group in the Gaza Strip have been the victims of activities that violate the Genocide Convention.
- Within a month of the order’s date, the State of Israel is required to report to the Court on all actions taken to implement this directive.
The ICJ further stated that in accordance with Article 41 of the ICJ Statute, these interim remedies had a “binding effect”. It is unclear, nevertheless, if such a binding impact will be upheld in real life. The Court further demanded the unconditional and prompt release of hostages taken by Hamas and other militant organisations.
Judge Sebutinde stated in her dissenting opinion that the Israel-Palestine conflict is not a legal problem that the Court can resolve, but rather one that requires diplomatic or negotiated resolution. The judge additionally stated that there was no need for the court to order provisional measures because South Africa had not proven, even prima facie, that Israel’s purported actions had “genocidal intent.” The judge went on to call South Africa’s case a “desperate bid” to compel a case to be heard in accordance with a treaty in order to support its legal resolution.
Ad hoc Judge Barak voiced concerns in a separate decision over the sincerity of South Africa’s dispute-bringing, citing the country’s refusal to accept an invitation from Israel to have talks. He claimed that the death and devastation in Gaza had “personally and deeply affected” him and that he was not diminishing the “suffering of innocent Palestinians”. He also concurred with Israel’s position that international humanitarian law, not the Genocide Convention, should be the relevant legal framework used to assess the Gaza situation. He disagreed sharply with the majority that there was genocidal intent on Israel’s part and that genocide was “plausible” in this particular case. Judge Barak stated that there was “scant” evidence to back up such a determination.
Judge Barak went on to say that there is proof that Israel took a number of steps to lessen the impact of hostilities on civilians. A cease-fire order, if the court added, would have effectively tied Israel’s hands and prevented it from retaliating in line with international law, while “the hands of Hamas would have been free to continue harming Israelis and Palestinians alike”. As he concluded, the judge stated that despite having been appointed by Israel as an ad hoc judge, he is not functioning as “an agent of Israel”.
Name of the case: Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa vs. Israel)
Bench: Joan E Donoghue (United States of America), Vice-President Kirill Gevorgian (Russia); Judge Peter Tomka (Slovakia); Judge Ronny Abraham (France); Judge Mohamed Bennouna (Morocco); Judge Abdulqawi Ahmed Yusuf (Somalia), Judge Xue Hanqin (China); Judge Bhandari (India); Judge Patrick Lipton Robinson (Jamaica); Judge Nawaf Salam (Lebanon); Judge Iwasawa Yuji (Japan); Judge Georg Nolte (Germany); Judge Hilary Charlesworth (Australia); Judge Leonardo Nemer Caldeira Brant (Brazil), Judge Julia Sebutinde (Uganda), ad hoc Judge Dikgang Ernest Moseneke (South Africa) and ad hoc Judge Aharon Barak (Israel).