International court of justice icj-cij.org
The International Court of Justice (ICJ) at Hague on Friday issued a series of provisional measures to protect the rights of Palestinians in the Gaza Strip after finding that it was “plausible” that their rights under the Prevention of Genocide Convention were being violated by Israel.
This order is not a final verdict in the matter but contains a series of measures “to protect the rights claimed by South Africa that the Court has found to be plausible.”
“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,” explained the ICJ before ruling that it had the jurisdiction to examine the matter and that South Africa had the standing to file its application against Israel.
The order was passed after South Africa filed an application before the ICJ alleging violations of the Genocide Convention by Israel in the Gaza Strip. South Africa invoked the convention to argue that the recent acts of aggression by Israel in Gaza amounted to a violation of the convention.
The application called for a direction to Israel to cease any acts violating the Genocide Convention.
South Africa asserted that Israel has a duty to take all reasonable measures to prevent genocide in relation to Palestinians.
South Africa also called for Israel to be ordered to collect and conserve evidence of any genocidal acts committed against Palestinians in Gaza including those displaced from the strip.
Fifteen of the seventeen judges on the ICJ bench including Indian-origin Judge Dalveer Bhandari were unanimous in issuing these provisional protection measures.
The fifteen judges who ruled for extending such protection measures are President Joan E Donoghue (United States of America), Vice-President Kirill Gevorgian (Russia); Judge Peter Tomka (Slovakia); Judge Ronny Abraham (France); Judge Mohamed Bennouna (Morocco); Judge Abdulqawi Ahmed Yusuf (Somalia), Judge Xue Hanqin (China); Judge Bhandari (India); Judge Patrick Lipton Robinson (Jamaica); Judge Nawaf Salam (Lebanon); Judge Iwasawa Yuji (Japan); Judge George Nolte (Germany); Judge Hilary Charlesworth (Australia); Judge Leonardo Nemer Caldeira Brant (Brazil) and to this Judge News Ernest Moseneke (South Africa).
Judge Julia September (Uganda) disagreed on all counts and pronounced a dissenting opinion.
Meanwhile, to this Judge Aharon Barakwho was Israel’s choice of judge (while South Africa chose Judge Moseneke) on the bench, dissented on most of the provisional measures except two.
The provisional measures issued by the ICJ (by a majority) do not include a cease-fire though the same was sought by South Africa. The provisional directions issued are as follows:
1. Israel must in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of acts within the scope of Article II of the Prevention of Genocide Convention. The “acts” referred to include (a) killing “members of the group” i.e. Palestinians (b) causing serious bodily or mental harm to Palestinians (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.
“Israel must ensure with immediate effect that its military forces do not commit any of the above-described acts,” the ICJ said.
2. 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. Sixteen judges were in favour of extending this measure with only Judge Sebutinde (Uganda) dissenting.
3. Israel must 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. Sixteen judges were in favour of extending this measure with only Judge Sebutinde dissenting.
4. Israel must take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts violating the Genocide Convention against members of the Palestinian group in the Gaza Strip.
5. The State of Israel shall submit a report to the Court on all measures taken to give effect to this order within one month from the date of the order.
The ICJ added that these provisional measures have “binding effect” under Article 41 of the Statute of the ICJ. However, it remains to be seen whether such a binding effect would be adhered to in practice.
The Court also called for the immediate and unconditional release of hostages abducted by Hamas and other armed groups.
In her dissenting opinion, Judge Sebutinde said that the Israel-Palestine conflict calls for a diplomatic or negotiated settlement and that it was not a legal dispute that could be settled by the Court.
The Judge further opined that South Africa has not demonstrated even on a prima facie basis, that the alleged acts of Israel had “genocidal intent”, owing to which provisional measures were not warranted from the court.
The judge went on to term South Africa’s case a “desperate bid” to force a case into the context of a treaty to foster its judicial settlement.
In a separate opinion, ad hoc Judge Barak expressed doubts over whether South Africa had brought its dispute in good faith given that it declined to accept an offer from Israel to engage in consultations.
“South Africa, instead of accepting this offer, which could have led to fruitful diplomatic talks, decided to institute proceedings against Israel before this Court. It is regrettable that Israel’s attempt to open a dialogue was met with the filing of an application,” Judge Barak said.
He went on to express that he was “personally and deeply affected by the death and destruction in Gaza” and that he is not undermining the “suffering of innocent Palestinians.“
He further agreed with Israel’s stance that the appropriate legal framework applicable to analyse the Gaza situation is International Humanitarian Law and not the Genocide Convention.
Pertinently, he strongly disagreed with the majority that genocide was “plausible” in the present case and that there was genocidal intent on Israel’s part. There was “scant” evidence to support such a conclusion, Judge Barak said.
“In the present case, the Court concluded, with scant evidence, that “the right of the Palestinians in Gaza to be protected from acts of genocide” is plausible.”
The judge added that there is evidence to show that Israel adopted several measures to minimise the impact of hostilities among civilians.
The judge also opined that if the ICJ had in fact ordered a cease-fire, it would have amounted to tying Israel’s hands and denying it the ability to fight back in accordance with international law, while “the hands of Hamas would have been free to continue harming Israelis and Palestinians alike.”
On a parting note, the judge commented that he is not acting as “an agent of Israel” even though he had joined as an ad hoc judge on being chosen by Israel.
[Read dissenting opinions]
