Australia / Israel Review

On January 26, the day before the UN officially observed International Holocaust Remembrance Day, the International Court of Justice (ICJ) made a mockery of the rule of law and the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) by ordering provisional measures against Israel in a case brought by South Africa claiming Israel committed genocide in Gaza.

The ICJ, in its provisional measures, ordered Israel “in accordance with its obligations under the Genocide Convention,” to “take all measures within its power to prevent the commission of acts within the scope of Article II of the Genocide Convention” in Gaza. (Article II defines “genocide” as acts “committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group” [emphasis added] and provides examples of such acts including “killing members of the group” and “causing serious bodily or mental harm to members of the group”). 

Significantly, the ICJ did not order a ceasefire as the ICJ did, incidentally, regarding Russia’s actions in Ukraine in another proceeding under the Genocide Convention.

Judge Julia Sebutinde (the Ugandan Judge on the ICJ) in her Dissenting Opinion concluded that the provisional measures ordered by the Court were not warranted – because the measures ordered, requiring Israel to comply with the Genocide Convention, are “redundant” since Israel is already under an obligation to take these actions under the Genocide Convention.

The South African Minister of International Affairs stated at a press conference after the ICJ decision was announced that the ICJ did order a ceasefire “by implication” – but this was clearly not the case.

The ICJ should not have issued provisional measures at all and should have stopped the case immediately because South Africa failed to prove the required elements of law necessary for the ICJ to issue provisional measures or even to go forward with the case.

However, in a paper-thin analysis of the law, circumventing its own precedents and basic legal reasoning and logic, the ICJ issued provisional measures against Israel, ordered Israel to report back within a short period of time (and thereafter at additional intervals) and allowed the case to proceed to the merits phase where the Court will fully evaluate whether Israel has committed “genocide” – when no proof of intent to commit genocide on Israel’s part was ever provided and can ever be provided for that matter.

Some of the flaws in the ruling include:

• Stating that casualty figures can’t be independently verified, but then simply quoting Hamas’ casualty figures as fact;
• Quoting representatives of the WHO, UNRWA, the UN Human Rights Council as well as the UN Secretary-General to back up its decision. By doing this, the ICJ failed to act as a court applying the law, and became an embarrassing political appendage of the UN.
• Avoiding the ICJ’s own precedents to the effect that “for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent”. (Bosnia v. Serbia, 2007)[emphasis added]. This means that for the ICJ to infer genocidal intent “it must be the only inference that could reasonably be drawn from the acts in question” (Croatia v. Serbia, 2015). In this case as applied to Israel, the inference of such an intent is impossible and implausible!

Let’s take a look at the persuasive dissenting opinions of Judge Sebutinde and Judge Aharon Barak, the Israeli judge sitting ad hoc specifically on this case (Judges Sebutinde and Barak were the only two dissenting judges):

The Genocide Convention Is Inapplicable to the Events in Gaza. As Judge Barak stated, the “appropriate legal framework for analysing the situation in Gaza is International Humanitarian law (IHL) – and not the Genocide Convention.” He pointed out that the “drafters of the Genocide Convention clarified in their discussions that ‘[t]he infliction of losses, even heavy losses, on the civilian population in the course of operations of war, does not as a rule constitute genocide…” Judge Sebutinde in her dissenting opinion was similarly of the view that the ICJ does not have jurisdiction under the Genocide Convention in this case, since the “[t]he Court’s jurisdiction is limited to the Genocide Convention and does not extend to grave breaches of international humanitarian law… unless it can be demonstrated that they were committed ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.’”

“Intent” Element Must be Proved in a Genocide Case. As Judge Barak pointed out, “[c]entral to the crime of genocide is the element of intent …” He explained that provisional measures can be ordered only if the Court “is satisfied that the rights asserted by the party requesting such measures are at least plausible” (Gambia v. Myanmar, Provisional Measures, January 2020). In his view, the Court’s approach here was “erroneous” in finding that the “right of Palestinians in Gaza to be protected from acts of genocide” is “plausible” (ICJ Order Para. 54). He compared the Gaza case to Gambia v. Myanmar where the reports in the case were based on the meticulous collection of evidence including 400 interviews with victims and eyewitnesses. There was an Independent Fact-Finding Mission (the “Mission”) which travelled to many countries to interview victims and witnesses. The Mission concluded that there were “reasonable grounds to conclude that serious crimes under international law ha[d] been committed” “including genocide”. Judge Barak noted that in the present case “there is no evidence comparable to that available in the Gambia case.” The Court in this case relied on reports of various UN agencies and affiliates (such as WHO and UNRWA) which, says Judge Barak, are “insufficient to prove plausible intent” as “[n]one of these statements mention the term genocide or point to any trace of intent.” This, says Judge Barak, is “in stark contrast to the evidence available to the Court in the Gambia Case.” 

The Court ignored the evidence Israel presented of its efforts to “minimise the impact of hostilities on civilians” (Image: IDF)

Indeed, says Judge Barak, Israel has presented evidence in this case of its efforts to “minimize the impact of hostilities on civilians” which proves quite the opposite of intending to commit genocide. Judge Sebutinde concluded that: “South Africa has not demonstrated, even on a prima facie basis, that the acts allegedly committed by Israel… were committed with the necessary genocidal intent and that, as a result, they are capable of falling within the scope of the Genocide Convention”. “…[T]here is no indication that the acts allegedly committed were accompanied by genocidal intent”. 

Perhaps Israel should never have appeared to argue its case – and Israel should seriously consider not continuing to cooperate with the ICJ or appear at the upcoming merits phase of the case – as many State parties have done in other ICJ and international tribunal proceedings.

In my view, South Africa knew that it had no case against Israel under the Genocide Convention but its sole objective was to extract provisional measures from the Court ordering a ceasefire in Gaza. That failed miserably. Now the case will go nowhere.

Notwithstanding all this, Israel should probably continue to make its meritorious case. Eventually, whatever political solution is reached which hopefully effectuates the release of all of the hostages and ends Hamas’ rule in Gaza will make this whole proceeding moot. At the end of the day, with the combined forces of Israel, the United States and its allies, we can be confident that the forces of mayhem and cruelty, namely, Hamas, Hezbollah, the Houthis and Iran, will inevitably be completely defeated. It is sad, however, that the ICJ lowered itself and its standards of jurisprudence to produce this ill-advised decision in the Gaza case.

Mark Meirowitz, J.D., Ph.D., is a Professor at the State University of New York (SUNY) Maritime College. Reprinted from InSIGHT magazine. © Jewish Policy Center (jewishpolicycenter.org), reprinted by permission, all rights reserved.