On 29 December 2023, the Republic of South Africa filed in 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.
The Court after hearing the matter, ordered provisional measures in the case that Israel must, in accordance with its obligations under the Genocide Convention, 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.
The Court was also of the view that Israel must 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.
In the order, only one judge Justice Sebutinde voted against all orders of the Court. Justice Sebutinde wrote her different opinion, in which she defended her decision.
Opinion of Justice Sebutinde
Here is an analysis of her dissenting opinion-
The dispute is Political and not Legal
In my respectful dissenting opinion the dispute between the State of Israel and the people of Palestine is essentially and historically a political one, calling for a diplomatic or negotiated settlement, and for the implementation in good faith of all relevant Security Council resolutions by all parties concerned, with a view to finding a permanent solution whereby the Israeli and Palestinian peoples can peacefully coexist.
It is not a legal dispute susceptible of judicial settlement by the Court. Some of the preconditions for the indication of provisional measures have not been met.
The Court’s jurisdiction is limited to the Genocide Convention and does not extend to grave breaches of international humanitarian law
For the purposes of the provisional measures Order, the Court’s prima facie jurisdiction is limited to the Genocide Convention and does not extend to alleged breaches of international humanitarian law.
Thus, while it is not inconceivable that grave violations of international humanitarian law amounting to war crimes or crimes against humanity could have been committed against the civilian populations both in Israel and in Gaza (a matter over which the Court has no jurisdiction in the present case), such grave violations do not, in and of themselves, constitute “acts of genocide” as defined in Article II of the Genocide Convention, unless it can be demonstrated that they were committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.
There are no indicators of a genocidal intent on the part of Israel
In particular, South Africa has not demonstrated, even on a prima facie basis, that the acts allegedly committed by Israel, and of which the Applicant complains, were committed with the necessary genocidal intent and that, as a result, they are capable of falling within the scope of the Genocide Convention.
What distinguishes the crime of genocide from other grave violations of international human rights law (including those enumerated in Article II, paragraphs (a) to (d), of the Genocide Convention) is the existence of the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.
Accordingly, the acts complained of by South Africa, as well as the rights correlated to those acts, can only be capable of “falling within the scope of the said Convention” if a genocidal intent is present, otherwise such acts simply constitute grave violations of international humanitarian law and not genocide as such.
Thus, even at this preliminary stage of provisional measures, the Court should have examined the evidence put before it to determine whether there are indicators of a genocidal intent (even if it is not the only inference to be drawn from the available evidence at this stage), in order for the Court to conclude that the acts complained of by the Applicant are, prima facie, capable of falling within the scope of the Genocide Convention.
Unfortunately, the scale of suffering and death experienced in Gaza is exacerbated not by genocidal intent, but rather by several factors, including the tactics of the Hamas organization itself which often entails its forces embedding amongst the civilian population and installations, rendering them vulnerable to legitimate military attack.
Regarding the statements of Israeli top officials and politicians that South Africa cited as containing genocidal rhetoric, a careful examination of those statements, read in their proper and full context, shows that South Africa has either placed the quotations out of context or simply misunderstood the statements of those officials. The vast majority of the statements referred to the destruction of Hamas and not the Palestinian people as such.
Certain renegade statements by officials who are not charged with prosecuting Israel’s military operations were subsequently highly criticized by the Israeli Government itself. More importantly, the official war policy of the Israeli Government, as presented to the Court, contains no indicators of a genocidal intent. In my assessment, there are also no indicators of incitement to commit genocide.
In sum, I am not convinced that the acts complained of by the Applicant are capable of falling within the scope of the Genocide Convention, in particular because it has not been shown, even on a prima facie basis, that Israel’s conduct in Gaza is accompanied by the necessary genocidal intent.
In conclusion, I am not convinced that the rights asserted by South Africa are plausible under the Genocide Convention, in so far as the acts complained of by the Applicant do not appear to fall within the scope of that Convention. While those acts may amount to grave violations of IHL, they are prima facie, not accompanied by the necessary genocidal intent.
The provisional measures indicated by the court are not warranted
In my view,
- The First measure obligating Israel to “take all measures within its power to prevent the commission of all acts within the scope of Article II of [the Genocide] Convention” effectively mirrors the obligation already incumbent upon Israel under Articles I and II of the Genocide Convention and is therefore redundant.
- The Second measure obligating Israel to ensure “with immediate effect that its military does not commit any acts described in point 1 above” also seems redundant as it is either already covered under the first measure or is a mirror of the obligation already incumbent upon Israel under Articles I and II of the Genocide Convention.
- The Third measure obligating Israel to “take all measures within its power to prevent and punish the direct and public incitement to commit genocide” also mirrors the obligation already incumbent upon Israel under Articles I and III of the Genocide Convention and is therefore redundant.
- The Fourth measure obligating Israel to “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” has no link with any of the rights purportedly claimed under the Genocide Convention.
In other words, under that Convention, a State party has no duty to provide or to enable the provision of, humanitarian assistance, as such. There may be an equivalent duty under IHL but not the Genocide Convention. Besides, there is evidence before the Court that the provision of humanitarian assistance is already taking place with the involvement of Israel and other international organizations, notwithstanding the continuing military operation. The evidence also points to an improvement in the provision of basic needs in the affected areas. This measure too seems unnecessary in the circumstances.
- Regarding the Fifth measure obligating Israel to “take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Articles II and III of the [Genocide] Convention”, there does not seem to be any evidentiary basis for assuming that Israel is engaged in the deliberate destruction of evidence as such.
Any destruction of infrastructure is not attributable to the deliberate efforts of Israel to destroy evidence but rather to the exigencies of an ongoing conflict with Hamas, which is not a party to these proceedings.
It is difficult to envisage how one of the belligerent parties can be expected to unilaterally “prevent the destruction of evidence” while leaving the other one free to carry on unabated.
- Finally, in respect of the Sixth measure, given that the other measures are not warranted, there is no reason for Israel to be required to “submit a report to the Court on all measures taken to give effect to th[e] Order”.
In its Request for provisional measures, South Africa emphasised that both Parties to these proceedings have a duty to act in accordance with their obligations under the Genocide Convention in relation to the situation in Gaza, leaving one wondering what positive contribution the Applicant could make towards defusing the ongoing conflict there.
During the oral proceedings in the present case, it was brought to the attention of the Court that South Africa, and in particular certain organs of government, have enjoyed and continue to enjoy a cordial relationship with the leadership of Hamas.