Atul Alexander
The recent proceedings in the International Court of Justice (ICJ) involving South Africa and Israel have attracted widespread media attention unlike any other dispute. It is estimated that the overall death exceeded 20,000 civilians with 52, 000 people injured. Scholars’ support for South Africa’s application is extensive; however, Israel alleges that the entire exercise by South Africa is to politicize and engage in ‘genocidefare.’ Although the ICJ is the principal judicial organ of the United Nations that focuses fundamentally on legal claims, the arguments by both States displayed emotional overdose. For instance, the opening remarks by South Africa cites Nelson Mandela – “(i)n extending our hands across the miles to the people of Palestine, we do so in the full knowledge.”
Only the provisional measures would reveal the sanctity of these emotional appeals, as succinctly put by Juliette McIntyre, ‘court procedures utilise performance and aesthetics in order to enact justice.’ Beyond the emotional cacophony, it is conspicuous from the previous orders of the ICJ, barring a few individual opinions of Judges, that the ICJ complies with the specific standards to render provisional measures. This piece is a laconic reflection on the ongoing dispute between South Africa and Israel in the context of the provisional measures’ requirement.
At the outset, one may wonder why South Africa has approached the ICJ invoking the Genocide Convention. This is because the Genocide Convention is the sole basis for South Africa to invoke the jurisdiction of the ICJ under Art. IX (Genocide Convention) vis-à-vis Art. 36 (1) of the ICJ Statute. Therefore, the solitary focus on Genocide, which is acknowledged as the ‘crime of crimes,’ shouldn’t trivialise other non-genocidal crimes. Also, the ICJ was not the initial forum where the dispute was put to the test; the United Nations Security Council (UNSC) on Dec 22, 2023, passed a resolution calling for compliance with International Humanitarian Law (IHL), United Nations General Assembly (UNGA) voiced for an immediate ceasefire and the release of the hostage. Against this backdrop, the ICJ is called to render provisional measures, which creates a legally binding obligation on States; failing to comply with provisional measures leads to State responsibility.
The fundamental requirements for rendering provisional measures are developed by ICJ as the language of the ICJ Statute under Art. 41, only delineates the objectives of provisional measures; the provision reads as, “(t)he Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.” The ICJ, over the years, have developed parameters for granting provisional measures at different stages in its history; these are: a) prima facie jurisdiction, b) link between the right asserted and provisional measures sought, c) plausibility, d) risk of irreparable prejudice and e) urgency. In the previous cases involving the Genocide Convention, the ICJ favoured the applicant, although the specific requests were denied, this probably could be to maintain the equality between the parties and the balance of interest.
At the provisional measures stage, the ICJ need not satisfy that it definitely has jurisdiction. But the State has to ascertain the existence of a ‘dispute.’ Although considerable literature has flown on what constitutes a ‘dispute.’ In the current context, the dispute should be pertaining to the ‘interpretation, application or fulfilment’ (Art. IX) of the Genocide Convention. Dispute for the purposes of ICJ implies both States holding ‘clearly opposite views.’ In Gambia v. Myanmar, the ICJ took cognisance of the statements made in the multilateral settings, which addressed the situation of Rohingyas in the Rakhine State and also the communication made through the Note Verbale. The ICJ is required to objectively determine the existence of the ‘dispute’ after perusing the relevant materials. Interestingly, the ICJ went the extra mile in observing that the lack of response by the respondent State could not be inferred as the absence of dispute. In terms of prima facie jurisdiction, it applies if the dispute is capable of falling within the ambit of the Genocide Convention (any of the provisions). Moreover, the Genocide Reservations Case (Advisory Opinion) affirmed the nature of the Genocide Convention as being more in terms of common interest over any bilateral interest. Thereby providing an opportunity for every State party to the Convention to invoke the relevant provision.
The plausibility claim threshold adopted by the ICJ has shrinked significantly, i.e., the asserted right should possibly exist in international law and ‘at least plausible’. In Gambia v. Myanmar, Gambia contended that for ascertaining plausibility, there is a requirement to prove the ‘specific intent’. The ICJ placed reliance on the UN fact-finding report and UNGA resolution to prove the existence of plausibility. In the subsequent case of Ukraine v. Russia, the ICJ, unlike the Gambia case, did not rely on factual evidence to adduce plausibility. Thus, plausibility standards are quite low.
Irreparable prejudice to the right would mean any disregard for these rights could potentially lead to irreparable consequences. Interestingly, the ICJ in Gambia v. Myanmar took recourse to the Genocide Reservations case (Advisory opinion) to [MOU1] [AA2] [AA3] highlight the nature of the Genocide Convention in terms of “its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality” because of the fundamental values sought to be protected under the genocide Convention the ICJ considers “right of the Rohingya group in Myanmar and of its members to be protected from killings and other acts threatening their existence as a group, are of such a nature that prejudice to them is capable of causing irreparable harm”, further by relying on the fact-finding report, the ICJ considered the measures taken by Myanmar appeared insufficient. Urgency, as stated in Ukraine v. Russia, implies acts suspectable of causing irreparable prejudice, which can occur at any moment. The ICJ clearly observed in the context of the military operation carried out by Russia that the civilian population affected by the conflict was extremely vulnerable and also took note of the UNGA resolution expressing concern over civilians
Pending Dispute
The current case involving South Africa and Israel is expected to pan out on similar lines, notwithstanding the emotional appeal by South Africa. If the ICJ adopts a liberal approach, the order is expected to go in favour of South Africa, at least in the provisional measures stage (some of the requests would be granted, if not all). Israel tried to pass the responsibility to Hamas as the trigger, in para 27 (Vebatium), as co-agent Becker puts it, “to let Hamas not just get away with its murder, literally, but render Israel defenceless as Hamas continues to commit it.” On prima facie jurisdiction, Israel relies on the previous provisional measures in order to assert what constitutes a dispute and thus contends that there is no positive opposition by Israel to the claims of South Africa. However, Israel appears to have contradicted its own assertion by claiming that Israel had replied to the Note Verbale at a later date.
In terms of the ‘specific intent’, although the ICJ, in the earlier cases, has reserved adjudicating on it for the merits, Israel contends otherwise and attempts to prove a lack of genocidal intent through the statements of its state apparatus. Regarding the plausibility requirement, Israel attempted to disprove the factual matrix presented by South Africa by observing that “(p)lausibility cannot be determined based on the unsubstantiated allegations of one party to the proceedings alone, if Article 41 of the Court’s Statute is to have any meaning.” However, South Africa, like in the Gambia case, has relied on the report of UN Special rapporteurs, resolution, etc., to prove plausibility, which is likely to succeed as the threshold of plausibility is significantly low.
On the question of the risk of Irreparable Prejudice and Urgency, Israel’s contention is that at the ground level, the situation is restored, and civilians are only affected by the acts of Hamas. But as it is evident from multiple UN reports, the Israeli retaliation has injured and killed innocent civilians in Gaza; one report indicates nearly 4 per cent of the population is wiped out. Unlike the earlier case, South Africa has sought nine provisional; it is highly likely that the ICJ would not agree to all the requests, like submitting regular reports to court or preventing destruction of the evidence, however, considering the humanitarian catastrophe and nature of the Genocide Convention, the ICJ would stick to its previous jurisprudence. A debatable provisional measure sought by South Africa is directing Israel to suspend military operations; many might argue that this may not be a feasible option because Israel faces continuous threats from Hamas. Yet another provisional measure sought by South Africa requires Israel to ‘“desist” from committing acts within the scope of Article II of the Convention. This, as Israel contends, would require delving into the question of ‘genocidal intent’, and humanitarian aid entering Gaza would be categorised as a breach.
Conclusion
This provisional measure would be of particular interest because the order would contribute to the evolving jurisprudence on provisional measures involving the Genocide Convention. The aspect of specific intent would be only reserved for the merits, and is likely to favour Israel. (In the Bosnia case, only one event (Srebrenica) qualified the threshold of specific intent.) However, the provisional measure order is likely to be in favour of South Africa, as the threshold for provisional measures remains low and ICJ appear to consider human vulnerability as a determining factor in rendering provisional measures. Since the LaGrand case, considerable interest is generated on provisional measures, thus deployment of the Genocide Convention dispute settlement clause; scholars are also sceptical of the rise of Genocide Cases before the ICJ, as it could potentially dilute the seriousness of the crime and result in the abuse of process. It should be noted that the Genocide Convention provides the opportunity for States as a last resort, and any benefit of the doubt in the provisional measure stage should favour the applicant.
(Dr. Atul Alexander is an Assistant Professor (Law) at the West Bengal National University of Juridical Sciences (WBNUJS), Kolkata, and Faculty Advisor of International Law Student Association-WBNUJS Chapter.)
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