Source: Indian Express

Introduction

The recent verdict by the International Court of Justice (ICJ) regarding South Africa's case against Israel has sparked varied reactions globally. The dissenting opinions, particularly that of Judge Barak and Judge Julia Sebutinde, have intensified the discourse surrounding the ICJ's role in addressing complex international conflicts. The proceedings instituted by South Africa against Israel concerning alleged violations in the Gaza Strip under the Convention on the Prevention and Punishment of the Crime of Genocide, 1948 (Genocide Convention) mark a significant legal confrontation.

What is the Background of the Case?

• Lodging of Application:
  • On 29^th December 2023, South Africa lodged an Application with the Court, alleging Israel's violations of the Genocide Convention in Gaza.
  • The Application was accompanied by a Request for provisional measures urgently seeking Israel's suspension of military operations and adherence to the Convention's obligations.
• Context Behind Proceedings:
  • The context leading to the proceedings was the 7^th October 2023 attack by Hamas and other armed groups in Israel, resulting in significant casualties and subsequent Israeli military operations in Gaza.
• Acknowledgment by Court:
  • The Court acknowledged the human tragedy unfolding in the region and the international community's concern, as evidenced by resolutions passed by various UN organs.
• Request for Provisional Measures:
  • South Africa's request for provisional measures encompassed nine points, aiming primarily at halting military operations, ensuring protection for Palestinians, and preventing genocide-related acts.
  • These measures underscored the urgency and gravity of the situation in Gaza, as perceived by South Africa.

What was the Judgment on South Africa’s Case Against Israel?

The Court, in its judgment, undertook a thorough examination of prima facie jurisdiction, the standing of South Africa, and the necessity for provisional measures.

• Prima Facie Jurisdiction:
  • The Court reiterated its precedent that provisional measures can only be indicated if the applicant's provisions offer a basis for jurisdiction, without definitive assessment of the merits.
  • South Africa invoked Article 36(1) of the Statute of the Court and Article IX of the Genocide Convention to establish jurisdiction.
  • Notably, both South Africa and Israel being parties to the Convention without reservations to Article IX, prima facie jurisdiction was recognized.
• Existence of a Dispute:
  • Article IX of the Genocide Convention mandates the Court's jurisdiction upon the existence of a dispute regarding interpretation, application, or fulfillment of the Convention.
  • The Court examined statements from both parties, noting South Africa's allegations of genocide and Israel's rebuttals.
  • The Court found prima facie evidence of a dispute, with acts alleged by South Africa possibly falling under the Convention's provisions.
• South Africa’s Stand:
  • Israel did not contest South Africa's standing, recognizing all Genocide Convention parties' common interest in preventing genocide.
  • Hence, South Africa's standing to bring forth the dispute was confirmed by the Court.

What were the Different Opinions of Judges?

• Opinion of Judge Xue:
  • In her concurrence, Judge Xue underscores the longstanding presence of the Palestinian issue on the UN agenda, emphasizing the unfulfilled right to self-determination for Palestinians, particularly those in Gaza.
  • She highlighted the UN's perpetual responsibility towards Palestine until resolution according to international legitimacy.
  • Judge Xue argued for robust protection of Palestinians from genocide, stressing the international community's obligation, including the court, to ensure such safeguards.
  • Expressing deep concern over the dire humanitarian situation in Gaza, exacerbated by Israeli military actions, she recalled historical precedents where legal proceedings failed to address breaches, tarnishing the court's reputation.
  • Judge Xue advocated for recognizing the legal standing of states under erga omnes partes, especially for protected groups like Palestinians, citing the Genocide Convention.
  • She supported the court's provisional measures as warranted in addressing the crisis.
• Dissenting Opinion of Judge Sebutinde:
  • Judge Sebutinde dissented characterizing the Israel-Palestine conflict as primarily political, advocating for diplomatic resolution guided by relevant Security Council resolutions.
  • She questioned South Africa's claims, arguing they lack prima facie evidence of genocidal intent under the Genocide Convention.
  • Judge Sebutinde deemed the rights asserted by South Africa implausible and contends that the court's indicated provisional measures are unwarranted.
• Declaration of Judge Bhandari:
  • Judge Bhandari condemned attacks on civilians while cautioning that the court lacks a complete factual record.
  • He argued for considering the plausibility of South Africa's claims based on available evidence, emphasizing the humanitarian catastrophe in Gaza.
  • Judge Bhandari supported the court's provisional measures as justified under the circumstances.
• Declaration of Judge Nolte:
  • Judge Nolte agreed with the court's decision on provisional measures, emphasizing the plausible risk to Palestinian rights under the Genocide Convention due to statements by Israeli officials.
  • He supported South Africa's claims and the necessity of the indicated provisional measures.
• Separate Opinion of Judge ad hoc Barak:
  • Judge ad hoc Barak emphasized Israel's existing obligations under international law and questions South Africa's good faith in initiating proceedings.
  • He challenged the plausibility of South Africa's claims regarding genocidal intent and criticizes the court's assessment of provisional measures.
  • Judge ad hoc Barak underscored the importance of international humanitarian law in addressing the Gaza conflict and expresses regret over the court's handling of the situation regarding hostages and evidence.

Conclusion

The Court concluded that the conditions for indicating provisional measures were met. It directed Israel to take immediate steps to prevent genocide-related acts, ensure humanitarian assistance, preserve evidence, and submit reports on measures taken. In its judgment, the Court emphasized adherence to international humanitarian law by all parties involved and urged the immediate release of hostages held by armed groups.