International Court of Justice (ICJ): In a significant development in the proceedings against the State of Israel concerning alleged violations in the Gaza Strip of obligations under the Genocide Convention as initiated by South Africa; the 17-Judge Bench of the Court delivered its order on the request for indication of provisional measures in the matter on 26-01-2024.
The provisional measures are as follows-
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ICJ ratio 15:2- The State of Israel shall take all measures within its power to prevent the commission of all acts within the scope of Article II of Genocide Convention, in accordance with its obligations under the Convention, in relation to Palestinians in Gaza ; particularly – (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
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ICJ ratio 15:2- The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1.
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ICJ ratio 16:1- 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.
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ICJ ratio 16:1- 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.
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ICJ ratio 15:2-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 Genocide Convention against members of the Palestinian group in the Gaza Strip.
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ICJ ratio 15:2- 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.
Background: On 7-10-2023, Hamas and other armed groups present in the Gaza Strip carried out an attack in Israel, killing more than 1,200 persons, injuring thousands and abducting some 240 people, many of whom continue to be held hostage. Following this attack, Israel launched a large-scale military operation in Gaza, by land, air and sea, which is causing massive civilian casualties, extensive destruction of civilian infrastructure and the displacement of the overwhelming majority of the population in Gaza.
Legal Trajectory: With the situation in Gaza strip worsening since 07-10-2023 with multiple instances of violence getting visibility in the public domain via social media; South Africa on 29-12-2023 filed an Application instituting proceedings against Israel concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) in relation to Palestinians in the Gaza Strip.
In its Application, South Africa also requested the Court to indicate provisional measures in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide”.
Public hearings on the matter were conducted on 11/12-01-2024
Court’s Assessment: The Bench of President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judges ad hoc Barak, Moseneke; Registrar Gautier, deliberated over the following issues:
Rights whose Protection is Sought and the Link between such Rights and the Measures requested:
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The Court stated that the power to indicate provisional measures under Article 41 of the Statute of the Court, aims towards preservation of the respective rights claimed by the parties in a case, pending its decision on the merits thereof. Therefore, the Court may exercise this power only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible.
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At this stage of the proceedings, however, the Court has not been called upon to determine definitively whether the rights which South Africa wishes to see protected exist. It only needs to decide whether the rights claimed by South Africa, and for which it is seeking protection, are plausible. Moreover, a link must exist between the rights whose protection is sought and the provisional measures being requested.
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Perusing Articles I and III of the Genocide Convention, the Court pointed out that the provisions of the Convention are intended to protect the members of a national, ethnical, racial or religious group from acts of genocide or any other punishable acts enumerated in Article III.
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It was noted that in order 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. That is demanded by the very nature of the crime of genocide: since the object and purpose of the Convention as a whole is to prevent the intentional destruction of groups, the part targeted must be significant enough to have an impact on the group as a whole.”
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It was pointed out 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 Genocide Convention. It was observed that, as per sources of the United Nations, 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.
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It was noted that military operation being conducted by Israel following the attack of 7-10-2023 has resulted in a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure.
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The Court took note of the observations made by the WHO; UNHRC etc., and reporters on the dehumanising grim situation prevailing in the Gaza Strip and further took note of the various statements issued by the Israeli government officials.
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The Court was of the view that the facts and circumstances are sufficient to conclude that at least some of the rights claimed by South Africa for which it is seeking protection, are plausible. “This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention”.
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Vis-à-vis link between the plausible rights claimed by South Africa and the provisional measures requested, the Court considered that at least some of the provisional measures sought by South Africa are aimed at preserving the plausible rights it asserts on the basis of the Genocide Convention- namely the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts mentioned in Article III; and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention. “Therefore, a link exists between the rights claimed by South Africa that the Court has found to be plausible, and at least some of the provisional measures requested’’.
Risk of Irreparable Prejudice and Urgency:
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It was noted that the Court has been called upon to determine whether the circumstances require the indication of provisional measures for the protection of rights under Genocide Convention.
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It was noted that the civilian population in the Gaza Strip remains extremely vulnerable. It was further noted that the operation is ongoing and that the Prime Minister of Israel announced that the war “will take many more long months”. At present, many Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating.
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In these circumstances, it was noted that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment on this issue.
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Recalling Israel’s statement that it has taken certain steps to address and alleviate the conditions faced by the population in the Gaza Strip, the Court opined that while steps to lessen civilian sufferings are encouraged but they are insufficient to remove the risk that irreparable prejudice will be caused before the Court issues its final decision in the case.
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It was thus stated that there is 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.
Prima Facie Jurisdiction of ICJ:
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The Court noted that South Africa and Israel are parties to the Genocide Convention. Neither of the Parties has entered a reservation to Article IX or any other provision of the Convention which states that “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment 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, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”
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The Court stated that Since South Africa has invoked as the compromissory clause of the Genocide Convention the basis of the Court’s jurisdiction, the Court must also ascertain, at the present stage of the proceedings, whether it appears that the acts and omissions complained of by the Applicant are capable of falling within the scope of that convention ratione materiae.
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It was noted that South Africa issued public statements in various multilateral and bilateral settings in which it expressed its view that, in light of the nature, scope and extent of Israel’s military operations in Gaza, Israel’s actions amounted to violations of its obligations under the Genocide Convention. Meanwhile Israel dismissed any accusation of genocide in the context of the conflict in Gaza in a document published by the Israeli Ministry of Foreign Affairs on 6-12-2023 which was subsequently updated and reproduced on the website of the Israel Defense Forces
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Since the parties appear to hold clearly opposite views as to whether certain acts or omissions allegedly committed by Israel in Gaza amount to violations under the Genocide Convention, the Court thus found that the above-mentioned 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. Thus, prima facie, ICJ has jurisdiction pursuant to Article IX of the Genocide Convention to entertain the case.
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The Court also pointed out that at the present stage of the proceedings; the Court is not required to ascertain whether any violations of Israel’s obligations under the Genocide Convention have occurred. Such a finding could be made by the Court only at the stage of the examination of the merits of the present case.
South Africa’s Locus Standi:
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The Court noted that Israel did not challenge the standing of South Africa in the instant proceedings.
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The common interest in compliance with the relevant obligations under the Genocide Convention entails that any State party, without distinction, is entitled to invoke the responsibility of another State party for an alleged breach of its obligations erga omnes partes.
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Any State party to the Genocide Convention may invoke the responsibility of another State party, including through the institution of proceedings before the Court
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The Court thus concluded that prima facie, South Africa has standing to submit to it the dispute with Israel concerning alleged violations of obligations under the Genocide Convention.
The Court deemed it necessary to emphasize that all parties to the conflict in the Gaza Strip are bound by international humanitarian law and expressed its concerns about the fate of the hostages abducted during the attack in Israel on 07-10-2023 and held since then by Hamas and other armed groups, and called for their immediate and unconditional release.
Conclusions:
On basis of the afore-stated assessment, the Court concluded that the conditions required by its Statute for it to indicate provisional measures are met. It is therefore necessary 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.
[South Africa v. Israel, General List No 192, decided on 26-01-2024]
