JUSTICE - No. 71

31 Spring 2024 national, ethnical, racial or religious group, as such: (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; (d) Imposing measures intended to prevent births within the group.7 Under international law, “for a pattern of conduct to be accepted as evidence of existence of genocidal intent, it must be such that it could only point to the existence of such intent [and]. . . it is necessary and sufficient that this is the only inference that could reasonably be drawn from the acts in question”8 (emphasis added). Thus, Israel’s legal obligation and stated motive of rescuing the kidnapped hostages should have made it impossible for even the most biased of tribunals to conclude that Israel was intending to commit or had perpetrated genocide under the law as it exists today. Moreover, experts have lauded Israel as a very moral army, citing its unprecedented acts and success in attempting to minimize civilian casualties. Nevertheless, South Africa, with its questionable standing to act on behalf of the Palestinians under the Genocide Convention, invited the ICJ to blame all ills on Israel, without regard to the truth, facts and self-documented and published evidence of the atrocities undertaken by Hamas. Predictably, the ICJ found a way to manufacture a degree of merit for South Africa’s claims in its preliminary ruling of January 26, 2024.9 The ICJ did not affirmatively find Israel to be committing genocide, nor did it grant South Africa’s ceasefire request. While the Court expressed concern for the hostages, it astoundingly and absurdly did not include as a provisional measure any order for Hamas to release the hostages.10 Instead, the ICJ imposed six provisional measures “other than those requested,”11 each against Israel and each of which was supported by all of the empaneled judges, except Ugandan Judge Julia Sebutinde who opposed each, and Israeli ad hoc Judge Aharon Barak who opposed four of them. Justice Sebutinde should be noted for her dissent, which rightly concluded that South Africa failed to demonstrate that “the acts allegedly committed by Israel…were committed with the necessary genocidal intent.”12 She found that “any ‘genocidal intent’ alleged by the Applicant is negated by (1) Israel’s restricted and targeted attacks of legitimate military targets in Gaza; (2) its mitigation of civilian harm by warning them through leaflets, radio messages and telephone calls of impending attacks; and (3) its facilitation of humanitarian assistance.”13 She rightly decried the entire matter as a “pretextual invocation of treaties like the Genocide Convention, in a desperate bid to force a case into the context of such a treaty, in order to foster its judicial settlement.”14 Sebutinde’s position was informed by a clear and logical application of law to fact, disconnected from the political interests of her home country, as reflected by the Ugandan government’s immediate statement denouncing her position as inconsistent with that of the government.15 The Devil Is in the Details Meanwhile, those Judges who supported the adopted 7. Convention on the Prevention and Punishment of the Crime of Genocide, adopted and proposed for signature and ratification or accession by General Assembly resolution 260 A (III) of 9 December 1948, entered into force on 12 January 1951, in accordance with article XIII, available at https://www.un.org/en/genocideprevention/ documents/atrocity-crimes/Doc.1_Convention%20on%20 the%20Prevention%20and%20Punishment%20of%20 the%20Crime%20of%20Genocide.pdf 8. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia, Judgment), Feb. 3, 2015, I.C.J. REPORTS 2015 at ¶ 148, available at https://www.icj-cij.org/sites/default/files/ case-related/118/118-20150203-JUD-01-00-EN.pdf 9. Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Order of Jan. 26, 2024, I.C.J. REPORTS 2024, available at https://www. icj-cij.org/sites/default/files/case-related/192/19220240126-ord-01-00-en.pdf 10. Id., at ¶ 85. 11. Id., at ¶ 76. 12. Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Jan. 26, 2024, Dissenting Opinion of Judge Sebutinde at ¶ 17, available at https://www.icj-cij.org/sites/default/files/ case-related/192/192-20240126-ord-01-02-en.pdf 13. Id., at ¶ 20. 14. Id., at ¶ 4. 15. Reuters and TOI Staff, “Uganda disowns its dissenting judge in court ruling on Israel genocide claim,” TIMES OF ISRAEL, Jan. 28, 2024, available at https://www. timesofisrael.com/uganda-disowns-its-dissenting-judgein-court-ruling-on-israel-genocide-claim/

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