South Africa has made a case against Israel under the Genocide Convention, 1948 for the latter’s genocide of Palestinians in Gaza. But what reliefs can South Africa avail when it is not directly affected? The ICJ’s ruling explains this dilemma.
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THE International Court of Justice (ICJ) has recently ordered Israel to prevent the commission of genocide of Palestinians in Gaza.
It has also ordered Israel to enable the provision of urgently needed basic services and humanitarian assistance to the Palestinians in Gaza.
The Order was given in a case filed at the world court by South Africa which claimed that Israel is committing genocide in its war against Hamas. South Africa argued that Israel’s actions in Gaza are in violation of its obligation to prevent and punish acts of genocide, mentioned under the Genocide Convention (GC), to which both countries are signatories.
South Africa had requested the court to order Israel to prevent the commission of genocide, or incite the commission of genocide, not to destroy evidence related to allegations of the commission of genocide.
While the case will go on for some time, South Africa had requested the court to grant nine provisional measures to stop the suffering of the Palestinian people. As per the rules of the ICJ, pending a final decision on the merits of the case, an applicant can ask to court to issue some provisional measures on an urgent basis.
For example, when Kulbhushan Jadhav was sentenced to execution by a court in Pakistan, India had asked the ICJ, on May 8, 2017, to issue a provisional measure ordering Pakistan to suspend the execution of that sentence pending the hearings.
On May 18, 2017, the court unanimously granted that provisional measure and ordered Pakistan to not execute Jadhav, pending the final decision in the case. Not only that, when India approached the court on May 8, 2017, seeking to stop the execution, the President of the ICJ sent a letter to the Prime Minister of Pakistan the very next day, asking him “to act in such a way as will enable any Order the court may make on this request to have its appropriate effects”.
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This was even before either party could present its oral arguments before the court. That is the significance of a provisional measure.
South Africa had requested the court to order Israel to prevent the commission of genocide, or incite the commission of genocide, not to destroy evidence related to allegations of the commission of genocide.
The court granted all these measures. But first, the court had to find that there was a ‘dispute’ between South Africa and Israel, that South Africa had a locus, that there were certain rights South Africa wanted to be protected, and that if the court would not issue provisional measures, there would be a risk of irreparable prejudice.
On the dispute
The first thing the court had to determine was the existence of a dispute between South Africa and Israel. This was because South Africa has invoked the court’s jurisdiction under Article IX of the Genocide Convention which says that a ‘dispute’ between parties to the Genocide Convention, regarding its interpretation, shall be submitted to the court.
The court noted how Israel had categorically denied committing genocide and had called such allegations ‘morally repugnant’. Thus the court concluded that there was a dispute between South Africa and Israel…
Article IX reads: “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.”
South Africa submitted how it had, in multiple forums, including the United Nations, warned Israel that its actions in Gaza amounted to genocide. It further submitted that it had sent a note verbale laying out its concerns regarding genocide, but Israel’s response did not address its concerns.
The court noted how Israel had categorically denied committing genocide and had called such allegations ‘morally repugnant’. Thus, the court concluded that there was a dispute between South Africa and Israel on the interpretation of the GC.
On South Africa’s locus
The fact that South Africa is not involved in the war with Israel has made people question its case against Israel. However, we need to understand that South Africa’s case is under the Genocide Convention.
Article I of the Genocide Convention states: “The contracting parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”
Thus, South Africa argued that, as per Article I of the Genocide Convention, every party to it has ‘an obligation to prevent’ the commission of genocide.
Under the terminology of international law, this is known as an obligation erga omnes partes, i.e. an obligation owed by any State party to all the State parties of the Genocide Convention. Hence, South Africa argued that Israel has an obligation against all parties of the Genocide Convention to prevent the commission of genocide.
The court then went on to issue provisional measures asking Israel to prevent the commission of genocide of Palestinians in Gaza; to prevent and punish incitement to genocide; to enable humanitarian assistance; and to not destroy evidence on allegations of genocide.
Since both South Africa and Israel are parties to the Genocide Convention, the court accepted that South Africa had locus in the case. Agreeing on the issue of erga omnes obligations, Judge Xue issued a declaration.
On the nature of rights
South Africa claimed that the rights it is seeking to protect are first the rights of Palestinians in Gaza to be protected from genocide and secondly, its own right to seek Israel’s compliance with the Genocide Convention.
The court accepted this argument too. In this regard, the case was similar to the case filed by Gambia against Myanmar to protect the rights of Rohingyas under the Genocide Convention.
On plausibility and prejudice
The court, under Article 41 of its statute, possesses the authority to grant interim measures when there is a risk of causing irreparable harm to rights under consideration in legal proceedings or when the alleged violation of such rights could result in irreparable consequences.
Article 41 states: “The court shall have the power to indicate if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.”
The court had to assess whether such a risk existed in the current proceedings and that the rights asserted by South Africa were at least plausible. South Africa had argued that there was a substantial risk of irreparable harm to Palestinians’ right to exist.
Israel had argued that if it were asked to suspend its military actions, that would lead to a violation of its right of self-defence and it would be susceptible to further attacks from Gaza.
Citing the court’s past rulings, South Africa emphasised the urgency of the provisional measures and presented daily statistics, including casualties and property damage.
It contended that unchecked violence by Israel would jeopardise evidence collection. Israel denied any imminent harm, highlighting efforts to safeguard Palestinian rights and provide aid. It cited measures such as reopening bakeries with substantial daily capacity.
The court noted the humanitarian intent of the Genocide Convention to safeguard the right to exist of human groups and said that Palestinians appear to constitute a distinct “national, ethnical, racial or religious group”.
Emphasising the extreme vulnerability of the Palestinians in Gaza, the court found a real and imminent risk of irreparable harm to their right to exist. On this issue of plausibility, Judge Dalveer Bhandari, the only Indian judge in the case, agreed with the majority and issued a declaration.
Judge Georg Nolte, while agreeing with the majority, noted in his declaration that not all the rights violations that South Africa had alleged are plausible.
The court then went on to issue provisional measures asking Israel to prevent the commission of genocide of Palestinians in Gaza; to prevent and punish incitement to genocide; to enable humanitarian assistance; and to not destroy evidence on allegations of genocide.
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While the ruling was majorly unanimous, Judge Julia Sebutinde dissented on the issuance of provisional measures and ruled that the dispute between Israel and Palestine is ‘essentially and historically a political one’.
Conclusion
The court noted that its provisional measures are binding on the parties and that they create an international legal obligation for Israel. It 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.” (para 83 of the Order)
South Africa had asked the court to order Israel to suspend its military actions in and against Gaza. The court did not order this and rightly so.
Israel had argued that if it were asked to suspend its military actions, that would lead to a violation of its right of self-defence and it would be susceptible to further attacks from Gaza, a non-state entity that is not a party to the case.
While the ruling was majorly unanimous, Judge Sebutinde dissented on the issuance of provisional measures and ruled that the dispute between Israel and Palestine is ‘essentially and historically a political one’.
Israel called this aspect of the decision ‘just’ and labelled allegations of genocide ‘outrageous’.
Noting the difficulty of asking only one party— Israel— to stop the hostilities, Judge Bhandari ordered all the parties in the conflict to ensure that all fighting and hostilities come to an immediate halt.
He declared, “Going further … all participants in the conflict must ensure that all fighting and hostilities come to an immediate halt and that remaining hostages captured on October 7, 2023, are unconditionally released forthwith.”
Coincidently, the court is also considering an advisory opinion request by the UN General Assembly to decide on the Palestinian occupation. The hearings on the same will begin soon on February 19, 2024.
It would be interesting to follow how that proceeding pans out.
Aman Kumar, PhD Candidate, Australian National University, Canberra.
Nabeela Siddiqui, Assistant Professor, Vinayaka Mission’s Law School, Chennai.
