Memorandum on the Order of the International Court of Justice on the Request for the Indication of Provisional Measures Submitted by South Africa, dated 26 January 2024 (South Africa v. Israel)

INTERNATIONAL COURT OF JUSTICE ORDER - REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES

Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)

            Pursuant to South Africa’s Request for the Indication of Provisional Measures, the International Court of Justice (‘ICJ’) has, on 26 January 2024, adjudicated that the prerequisites for the imposition of provisional measures have been satisfied. However, the prescribed measures deviate from those originally requested by the Applicant. It is imperative to underscore that all parties to the conflict bear a legal obligation to comply with the tenets of international humanitarian law.

The Court acknowledges the contextual background, starting from the October 7, 2023 attack by Hamas and other armed groups in the Gaza Strip on Israel, leading to substantial casualties and abductions. In response, Israel initiated a significant military operation, causing extensive harm to civilians and the infrastructure, and the displacement of majority of the population in Gaza. The Court recognizes the gravity of the situation and the ongoing human suffering. While the United Nations has addressed aspects of the Israeli-Palestinian conflict through resolutions of various organs, it is essential to note that the present legal case brought forth by South Africa is limited to the framework provided by the Genocide Convention.[1]

The Court’s decision is three-fold as follows:

  • Prima Facie Jurisdiction

Articles IX of the Genocide Convention stipulates that disputes among the Contracting Parties, including a State’s responsibility for genocide and other punishable acts under Article III, are to be referred to the ICJ by any one of the Parties involved. This current stage of the proceedings does not involve an exhaustive evaluation of the merits. Instead, it entails an assessment of whether the actions submitted by the Applicant are ‘capable of falling under the Convention’.

As Judge Xue emphasized in her appended declaration to the Order, “there are certain international obligations owed to the international community as a whole; by the very nature of their importance, all States have a legal interest in their protection” and that the legal standing of a State Party to the Convention to institute proceedings on the basis of erga omnes partes” should be acknowledged by the Court.

Israel and South Africa, holding clearly opposing views, are parties to the Convention with no reservations made for this provision. In this regard the Court, prima facie, established its jurisdiction and rejected Israel’s request for the case’s removal, opting to move forward with the proceedings.

  • The Rights Whose Protection is Sought and the Link Between Such Rights and the Measures Requested

The Court is authorized to enforce provisional measures, in line with Article 41 of the ICJ Statute, only when it is convinced that the rights claimed by the party seeking such measures are, at a minimum, plausible.

South Africa’s arguments are aimed at safeguarding both the rights of the Palestinians in the Gaza Strip and its own entitlement to ensure compliance with the Convention. The former rights encompass the protection from “acts of genocide, attempted genocide, direct and public incitement to commit genocide, complicity in genocide and conspiracy to commit genocide”. The foundation for these assertions lies in the discernible pattern of conduct aligned with the intent, as evidenced in statements made by Israeli officers during the commission of acts that satisfy the actus reus and mens rea requirements stipulated in the relevant provisions of the Convention. Furthermore, it is argued that Israel’s self-defense arguments do not negate the evident genocidal intent.

Israel’s submission discusses the applicable legal framework to the ongoing conflict, positing that international humanitarian law is the framework rather than the Convention. The Respondent argues that civilian casualties should be construed as the “unintended consequence of lawful use of force against military objects”, asserting a commitment to mitigating hardships in Gaza. Additionally, Israel underscores its obligations, particularly in the light of the October 7 attacks, emphasizing its responsibility towards citizens held captive by Hamas and reiterating the paramount right of self-defense.

In its deliberations, the ICJ thoroughly examined the obligations delineated in the Convention, substantiating its position with the information and statements from authoritative sources including the UN Under-Secretary General for Humanitarian Affairs and Emergency Relief Coordinator, World Health Organization, UN Relief and Works Agency for Palestine Refugees in the Near East Commissioner-General. These sources collectively assert that Gaza has reached an uninhabitable state, marking an unprecedented level of crises.

The initial decision rendered is the classification of the Palestinians as a distinct “national, ethnical, racial or religious group” within the meaning of Article II of the Convention. The Court observes that the military operations, the magnitude of casualties, widespread destruction of the city of Gaza and the forcible displacement of the majority of the population meet the substantiality requirement set in the precedent case of Bosnia and Herzegovina v Serbia and Montenegro.[2]

Furthermore, the Court references reports from the UNHRC and its 37 Special Rapporteurs to establish what is characterized as “dehumanizing language” by the Defense Minister, then Minister of Energy and Infrastructure, and the President of Israel are evidenced as additional evidence supporting the plausibility of the rights sought for protection.

In the light of the foregoing, the Court considers that the link between the said rights claimed and the provisional measures requested by the Applicant are, at the very least, credible and likely to be valid. Formun Üstü

 

  • Risk of Irreparable Prejudice and Urgency

In consideration of the provisional measures requirement, the Court seeks to determine whether there exists a real and imminent risk of irreparable prejudice to the rights claimed before the issuance of the final judgment.

South Africa contends that such risks encompass serious threats to human life, fundamental rights, and the well-being of the survivors, especially children. The Applicant further argues that humanitarian relief is not a comprehensive solution and there is a pressing need to collect and preserve evidence for the subsequent merits stage of the proceedings, which is at risk of being irretrievably lost. In response, Israel counters these claims by citing the assistance and measures directed at recognizing and safeguarding the rights of the civilians in the Gaza Strip through the provision of humanitarian aid.

The Court referenced the UN Secretary-General’s letter warning of the “risk of collapse of the humanitarian system” in the current situation in question, building up on the General Assembly Resolution 96(I) of 1946, highlighting the purposes of the Convention as follows: safeguarding the most fundamental right of human groups to exist and upholding the elementary principles of morality.

While the Court recognizes and encourages Israel’s efforts to address and alleviate the conditions, it finds them insufficient. The urgency stemming from the “real and imminent risk that irreparable prejudice will be caused to the rights” necessitates immediate measures before the ICJ reaches a final decision.

  • Measures to be Adopted:
  • The State of Israel shall, in accordance with its obligations under the 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 (By fifteen votes to two)
  • The State of Israel shall ensure with immediate effect that its military does not commit any acts [described in the previous point (killing members of the group; causing serious bodily or mental harm, imposing measures intended to prevent births within the group…)] ( (By fifteen votes to two)
  • 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 (By sixteen votes to one)
  • 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 (By sixteen votes to one)
  • 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 Convention against members of the Palestinian group in the Gaza Strip (By fifteen votes to two)
  • 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. (By fifteen votes to two)

            As Judge Bhandari stated in his appending declaration to the order, at this preliminary stage, the Court’s decision is limited to determining the plausibility of rights under the Convention. The ICJ is solely addressing South Africa’s specific request for provisional measures, which is distinct and separate from the overall merits of the case and the evidence currently on record justifies the Court’s grant of provisional measures in the specified terms. However, it is important to highlight that the ICJ’s orders are binding on the addressed parties under Article 41 of its Statute, but are not enforceable.

Reflections on the Implications of the Order

While this decision marks a preliminary stage, it prompts inquiries into liability, particularly under Article III(e) of the Convention, addressing complicity in genocide. Although not an immediate concern, an adverse ICJ decision against Israel may subsequently raise issues of aiding and abetting, particularly regarding the supply of arms by various States in the ongoing conflict. The implications of this order suggest that later arguments from States claiming non-agreement or unawareness of the ICJ’s label may carry diminished persuasiveness. As highlighted by Chile Eboe-Osuji, former President of the ICC, this alignment becomes evident in South Africa’s deliberate choice to submit the matter to the Court instead of pursuing a military intervention.[3] Nevertheless, South Africa’s decision to confine the litigation’s scope to the Genocide Convention raises two significant inquiries.

Firstly, the high threshold of dolus specialis requires for the mens rea of the crime of genocide, the intent to destroy, is a high threshold that reflects the gravity of the offense and is upheld in the Court’s precedent. Given the extensive consequences, encompassing harm to a predominantly civilian population and the occurrence of widespread and systematic attacks, various bases exist to characterize the acts and omissions perpetrated by the State of Israel over the past three months.[4] 

Furthermore, the exclusion of Palestine and Hamas as participating parties in the proceedings necessitates careful consideration. While this may spark legal discussions on the recognition of the State of Palestine, evaluation of its relationship with Hamas and the status of Hamas itself, this omission provided an opportunity for Israel to present a pertinent and compelling argument. In the course of the oral pleadings, a crucial question arose regarding whether the plea for a provisional measure to cease hostilities would exclusively restrict Israel’s actions, leaving those of Hamas unaffected.

In conclusion, while this preliminary decision is crucial in upholding international peace and security, it faces criticism for not explicitly endorsing a ceasefire among the parties to the conflict.[5] It is imperative to note that the merits of the case have not yet been fully discussed and consequently, the ruling should not be construed as a conviction. Recognizing that international crises demand comprehensive solutions, this decision is regarded as an essential step towards preventing and alleviating humanitarian emergencies in the region.

Ultimately, this unparalleled conflict demands enduring and urgent solutions. A compelling argument can be made, contending that the inadequacies of both political and military strategies underscore the imperative for guidance from the ICJ and a steadfast commitment to the principles of the rule of law.

Regards, Tunca Attorney Partnership

 

[1] Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entry into force 12 January 1951) 78 UNTS 277;

Protection of Civilians and Upholding Legal and Humanitarian Obligations, GA Res ES-10/21, UN Doc A/RES/ES-10/21 (30 October 2023, adopted on 27 October 2023; Illegal Israeli Actions in Occupied East Jerusalem and the Rest of the Occupied Palestinian Territory, GA Res ES-10/L.27, UN Doc A/RES/ES-10/22 (10 December 2023, adopted on 12 December 2023); United Nations Security Council (UNSC) Res 2712 (15 November 2023) UN Doc S/RES/2712 (2023); UNSC Res 2720 (22 December 2023) UN Doc S/RES/2720 (2023)

 

[2] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 126, para. 198.

[3] Chile Eboe-Osuji, ‘International Courts as the Last Hope for Humanity’ (Just Security, 24 January 2024) <https://www.justsecurity.org/91448/international-courts-as-the-last-hope-for-humanity/>

[4] Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (4th edn, Cambridge, 2021)

[5] Further reading: Nico Krisch, ‘Speaking the Law, Plausibly: The International Court of Justice on Gaza’ (EJIL: Talk!, 27 January 2024) < https://www.ejiltalk.org/speaking-the-law-plausibly-the-international-court-of-justice-on-gaza/>; ‘Top Experts’ Views of Int’l Court of Justice Ruling on Israel Gaza Operations (South Africa v Israel, Genocide Convention Case)’ (Just Security, 26 January 2024) < https://www.justsecurity.org/91457/top-experts-views-of-intl-court-of-justice-ruling-on-israel-gaza-operations-south-africa-v-israel-genocide-convention-case/>

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