JUSTICE - No. 71

24 No. 71 JUSTICE innocent Palestinian civilians. During the hearings, South Africa could not provide any evidence of actual or attempted genocide. Nevertheless, the Court was clearly reluctant to dismiss the case at this preliminary stage. The Court relied upon the standard of proof in a hearing for interim provisional measures, which is lower than in the substantive case. Therefore, the Court decided that there was sufficient evidence of a plausible danger to Palestinians’ right “to be protected from acts of genocide.”12 The Court concluded that “The facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa, and for which it is seeking protection are plausible.”13 The Court continued that “The right of Palestinians in the Gaza Strip to be protected from acts of genocide . . . are of such a nature that prejudice to them is capable of causing irreparable harm.”14 By such qualified and amorphous statements, the Court managed to establish its tenuous jurisdiction to order provisional measures. The Court consequently issued an order for provisional measures that Israel must take to prevent genocide: to punish incitement to genocide; to provide humanitarian assistance to Palestinians in the Gaza Strip; to preserve evidence related to allegations of genocide; and to submit a report to the Court within one month.15 In a dissenting opinion, Judge Julia Sebutinde, from Uganda,16 wrote, unequivocally, that she was not convinced that The…criteria for the indication of provisional measures have been met in the present case. 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.17 As to bellicose statements made by Israeli politicians, Judge Sebutinde wrote, “A careful examination of Israel’s war policy and of the full statements of the responsible government officials further demonstrates the absence of a genocidal intent.” It has not been shown, even on a prima facie basis, that Israel’s conduct in Gaza is accompanied by the necessary genocidal intent.” Justice Barak, in his separate opinion, agreed with the issuance of provisional orders concerning relief issues, which Israel was clearly already carrying out. However, Justice Barak emphatically denied that genocide or intent to genocide existed, writing; “I strongly disagree with the Court’s approach regarding plausibility and, in particular, I disagree on the question of intent.” “The Court’s approach opens the door for States to misuse the Genocide Convention in order to curtail the right of self-defence, in particular in the context of attacks committed by terrorist groups.” Judge Nolte, from Germany, who also concurred in the issuing of the provisional orders, nevertheless declared that “I am not persuaded that South Africa has plausibly shown that the military operation undertaken by Israel, as such, is being pursued with genocidal intent.” Most importantly, the Court did not issue an order for Israel to cease its military campaign, although South Africa had requested the Court to do so. This might well be a result of the efforts of Israel’s vigorous legal defense team and the presence on the Court of Israel’s renowned jurist, Justice Aharon Barak. Moreover, even this Court denied South Africa’s subsequent request for a further interim order, ruling, “This perilous situation demands immediate and effective implementation of the provisional measures indicated by the Court in its Order of January 26, 2024, which are applicable throughout the Gaza Strip, including in Rafah, and does not demand the indication of additional provisional measures.” Nevertheless, South Africa succeeded in tainting Israel with the odious stain of the plausibility of its committing genocide. Israel will have to submit a report to the Court, and at the time of writing (February 2024), there is a possibility that some Arab States may bring the issue to the UN Security Council. The substantive hearing of the case can take years, and there is little doubt that the charge will eventually be dismissed. In the meantime, another step has been taken to delegitimize Israel and the national movement of the Jewish People. n Robbie Sabel, professor of international law, Hebrew University of Jerusalem and a member of the Academic Advisory Board of JUSTICE. 12. Id., ¶ 66. 13. Id., ¶ 54. 14. Id., ¶ 66. 15. Id., ¶ 86. 16. Judge Sebutinde has since been appointed by her fellow judges as Vice President of the Court. 17. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Dissenting Opinion of Judge Sebutinde (Jan. 26, 2024), ¶ 17, available at https:// www.icj-cij.org/sites/default/files/case-related/192/19220240126-ord-01-02-en.pdf

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