Unsurprisingly, the International Court of Justice (ICJ) orders and opinions on South Africa’s case against Israel have met with diverse reactions. Ad hoc Judge Aharon Barak’s partial dissent has been viciously and vehemently trolled and has been criticised by many for not fully adopting the total dissenting opinion of Judge Julia Sebutinde. South Africa (SA) is upset by the fact that its requests were not fully taken cognisance of. The verdict is being seen by many as making Israel accountable for the first time, while others lament it as a disastrous portent for the just exercise of self-defence. Judge Barak found it “hard” to find a violation of the Genocide Convention (GC) by Israel. A Holocaust survivor, he is deeply aware of Israel’s commitment to the rule of law as a “Jewish and democratic state”.
The ICJ, however, decided only on the interplay of difficult realms of international law and found “plausible” some accusations of “violation of the GC.” The full judgment on the indictment must await trial and evidence on issues such as jurisdiction, intervenors (already Germany, Bangladesh, Jordan, and Nicaragua are seeking intervention), genocidal intent and other related matters. It found “at this early stage… the existence of a real and imminent risk of irreparable prejudice to the rights protected” under the GC and that “Israeli conduct in the Gaza Strip to minimise harm to civilians and to respond to incitement did not sufficiently remove the risk of irreparable harm.”
Of course, at the merits stage — to determine whether genocide is occurring — the Court has imposed the highest, almost insurmountable, standard of proof. In Bosnia v. Serbia (2007), the ICJ insisted that: “… for a pattern of conduct to be accepted as evidence of genocide of its existence it would have to be such that existence of such intent” is proved by “fully conclusive evidence” — that is, “the only inference that could reasonably be drawn from the acts in question”. But the provisional measures “need not be identical” to those requested by parties. Notably, the Court denied the first provisional measure, namely that “the State of Israel shall immediately suspend its military operations in and against Gaza”. The ICJ further maintained a stoic silence on SA’s request to identify its own obligations to prevent genocide.
The foremost provisional measure binding on the parties is by a majority of 15 ICJ judges (with Judges Sebutinde and Barak dissenting) and is not about a ceasefire but about Israel acting in accordance with its obligations under the Article 2 of GC to the take all measures to prevent the commission of all acts: “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”.
With the total dissent of Judge Sebutinde, the ICJ by 16 votes obligated Israel “to 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”. By 15 votes to 2, it asked Israel to take effective measures to allow humanitarian assistance in the Gaza Strip and prevent the destruction of evidence. The Court directed Israel to submit a report within one month on its compliance with all measures.
Judge Sebutinde holds the dispute between “the State of Israel and the people of Palestine” as “not a legal dispute” but a political one, calling for a diplomatic or negotiated settlement. And that SA “is yet to demonstrate that the acts allegedly committed by Israel… were done with the necessary genocidal intent.” Besides, the Court’s order will be read as its final judgment, erroneously because this may come after many years, or even decades. Moreover, in her view, “the order to enable the provision of basic services and humanitarian aid is beyond the scope of the court’s authority” under the GC because there is not a “sufficient link between the measure and the rights claimed under the convention”.
In sum, the dispute between “the State of Israel and the people of Palestine calls for a diplomatic or negotiated settlement”. A “permanent solution to the Israeli-Palestinian conflict can only result from good faith negotiations between Israeli and Palestinian representatives working towards a just and sustainable two-State solution,” not by judicial settlement or outside imposition. Further, according to the judge, SA has not even demonstrated prima facie that the acts allegedly committed by Israel… were committed with the “necessary genocidal intent”.
“Moreover, the order to enable the provision of basic services and humanitarian aid is beyond the scope of the court’s authority under the GC and there is also no basis to order the preservation of evidence absent a showing that Israel is deliberately destroying it.” No “basis exists to order the preservation of evidence absent a showing that Israel is deliberately destroying it”. Finally, given that SA has allegedly enjoyed and continues to enjoy “a cordial relationship with the leadership of Hamas,” it should use its influence to persuade Hamas to immediately and unconditionally release the remaining hostages, “as a good will gesture [that] would go a very long way in defusing the current conflict in Gaza.”
The learned judge’s dissent has been applauded by many. But is it not myopic to say that the ICJ has no power to promulgate provisional measures simply because on merits it may, after a long time, disallow a case? The potential of creative diplomacy is never to be undermined. However, law and jurisprudence have been equally known to overcome many a political stalemate. One hopes that Israel uses the month’s period to abate the horrors of war, displacement, deaths, devastation, and destruction in Gaza, and gives peace a much-needed chance.
The writer is professor of law, University of Warwick, and former vice chancellor of Universities of South Gujarat and Delhi
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31.01.2024
Unsurprisingly, the International Court of Justice (ICJ) orders and opinions on South Africa’s case against Israel have met with diverse reactions. Ad hoc Judge Aharon Barak’s partial dissent has been viciously and vehemently trolled and has been criticised by many for not fully adopting the total dissenting opinion of Judge Julia Sebutinde. South Africa (SA) is upset by the fact that its requests were not fully taken cognisance of. The verdict is being seen by many as making Israel accountable for the first time, while others lament it as a disastrous portent for the just exercise of self-defence. Judge Barak found it “hard” to find a violation of the Genocide Convention (GC) by Israel. A Holocaust survivor, he is deeply aware of Israel’s commitment to the rule of law as a “Jewish and democratic state”.
The ICJ, however, decided only on the interplay of difficult realms of international law and found “plausible” some accusations of “violation of the GC.” The full judgment on the indictment must await trial and evidence on issues such as jurisdiction, intervenors (already Germany, Bangladesh, Jordan, and Nicaragua are seeking intervention), genocidal intent and other related matters. It found “at this early stage… the existence of a real and imminent risk of irreparable prejudice to the rights protected” under the GC and that “Israeli conduct in the Gaza Strip to minimise harm to civilians and to respond to incitement did not sufficiently remove the risk of irreparable harm.”
Of course, at the merits stage — to determine whether genocide is occurring — the Court has imposed the highest, almost insurmountable, standard of proof. In Bosnia v. Serbia (2007), the ICJ insisted that: “…........
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