JUSTICE - No. 71

32 No. 71 JUSTICE measures took great liberties in how they disregarded the absence of Israel’s genocidal intent. For example, Judge Georg Nolte of Germany declared that he also was “not persuaded that South Africa has plausibly shown” genocidal intent,16 an element he said was “indispensable at the provisional measures stage of proceedings involving allegations of genocide.”17 Notwithstanding, he supported imposing the measures that his own analysis rendered unwarranted, reasoning that he viewed them as simply “reminding Israel of its obligations under “the Genocide Convention.”18 To be sure, Israel needs no reminding of the effects and dangers of genocide, the Jewish People having been the primary target of the attempted annihilation by the Nazis and its collaborators during the Shoah. The first provisional measure references, and in a way mirrors, Article II of the Genocide Convention, but does so without specifying the important required element of “intent to destroy.” It states that Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, 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, in particular: (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; and (d) imposing measures intended to prevent births within the group.19 The second provisional measure takes things a step further, by invoking part of the first measure while sidestepping the reference to the Convention and the embedded element of genocidal intent, stating “The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above.”20 This language could be interpreted to mean that any death, injury or even mental injury of any Gazan, including a Hamas terrorist, caused by Israel’s ongoing response to Hamas’s terror onslaught, may constitute a violation of the order even without a finding of genocidal intent. Sebutinde criticized this maneuver by the Court, observing that it is not enough to “only look at allegations of the grave breaches enumerated in paragraphs (a) to (d) of Article II . . . [t]he rights must be shown to plausibly derive from the Genocide Convention.”21 Effectively, by taking the Article II definition requiring genocidal intent out of the equation, the Tribunal empowered itself to hold Israel as violating an order issued under the Genocide Convention without ever substantiating an actual finding of genocide. A Familiar Foe at the Helm On February 6, 2024, days after the order was issued, the President of the Court departed and was replaced by Nawaf Salam of Lebanon.22 Lebanon has never explicitly recognized Israel and technically remains in a state of war with it.23 Hezbollah, a designated terror organization which, like Hamas, is an Iran-backed proxy, has been actively launching rockets and missiles against Israel both before and since October 2023. As Lebanon’s ambassador to the United Nations from 2007 to 2017, Mr. Salam sponsored several dozen General Assembly resolutions condemning Israel’s military conduct and presence in the disputed territories, negating Israel’s territorial rights and supporting programs aimed at creating anti-Israel propaganda under the auspices of international policy.24 Uniquely situated as the head of the Court to further promulgate his age-old bias and propaganda as findings of international law, which can 16. 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, Nolte Declaration at ¶¶ 13, 15, available at https://www. icj-cij.org/sites/default/files/case-related/192/19220240126-ord-01-04-en.pdf 17. Id., at ¶¶ 11, 12. 18. Id., at ¶ 17. 19. Supra note 9, at ¶ 86 (1). 20. Id., at ¶ 86(2). 21. Supra note 12, at ¶ 18. 22. See ICJ Current Members List, available at https://www. icj-cij.org/current-members 23. Maya Gebeily and Maayan Lubell, “Israel, Lebanon finalise maritime demarcation deal without mutual recognition,” REUTERS, Oct. 27, 2022, available at https:// www.reuters.com/world/middle-east/lebanon-israel-setapprove-maritime-border-deal-2022-10-27/ 24. See UN GA Res. A/62/80-85; A/63/26-31; A/64/16-21; A/65/13-18; A/66/14-19; A/67/19-25; A/68/12-17; A/69/20-25; A/70/12-17; A/71/20-25; A/72/11-16.