Aman Kumar
The ICJ’s Order in Provisional Measures request submitted by South Africa in its case against Israel was delivered on 26 January 2024. Since then, various aspects of the Order have been analyzed by many international lawyers. In a series of posts, I am going to engage with them, while presenting a wholesome analysis of not just the Order, but also of the Dissenting Opinion of Judge Sebutinde, Separate Opinion of Judge Ad Hoc Barak, and the Declarations by Judge Xue, Judge Bhandari and Judge Nolte.
I will begin by discussing the court’s order on determination of ‘Dispute’. In the subsequent posts I will analyze the Orders on Erga Omnes Partes, Genocidal Intent, Plausibility, Genocide Convention versus International Humanitarian Law debate, and finally the measures ordered. Please note that I am not going to discuss the arguments made by South Africa and Israel on these points in the posts. I have published an Episode on my Podcast here where you can find what each party said on these points.
On Dispute
The first thing court had to decide was whether a dispute existed between the parties under Article IX of the GC. This article states:
“Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”
South Africa claimed that it’s allegations of Genocide being committed by Israel, of Palestinian people, was refuted by Israel, hence there was a dispute between them. The court agreed with South Africa’s argument noting that:
“…the Parties appear to hold clearly opposite views as to whether certain acts or omissions allegedly committed by Israel in Gaza amount to violations by the latter of its obligations under the Genocide Convention.” (para 28)
While reaching this conclusion of existence of a dispute, the court relied on statements made by the officials of both the parties. It noted that:
“…for the purposes of deciding whether a dispute existed between the Parties at the time of the filing of the Application, it takes into account in particular any statements or documents exchanged between the Parties, as well as any exchanges made in multilateral settings. In so doing, it pays special attention to the author of the statement or document, its intended or actual addressee and its content.”
Thus, the court relied on statements made by South Africa ‘in various multilateral and bilateral settings’ (para 26), like the one made at the UN and one made in the Note Verbale sent to Israel. I disagree with the court’s conclusion on these points for reasons explained below.
The court relied on the 1924 definition of a dispute given in the Mavrommatis Palestine Concessions by its predecessor Permanent Court of International Justice (PCIJ). There, the PCIJ had noted that “(a) dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.” (page 11) It further referred to the South West Africa case to note that in order for a dispute to exist, it must be shown that the claim of one party is positively opposed by the other. Based on these statements, the court concluded that there was a dispute between South Africa and Israel.
However, Israel never positively opposed South Africa’s allegations. The court mentions the FAQ where Israel calls the allegations of genocide ‘morally repugnant’. (para 21 of the Order) Israel argued that this statement “was not addressed directly or even indirectly to South Africa, (and) are not sufficient to prove the existence of a “positive opposition” of views, as required by the Court’s jurisprudence”. (para 23) I agree with Israel’s views here. Let me explain why.
The court said that statements made at multilateral and bilateral settings can be considered to determine existence of a dispute. While I agree that statements made bilaterally can be considered to determine existence of a dispute, I find myself struggling to find relevance of statements made at multilateral events, event at UN, especially when they are not opposed or replied to at the event. Statements made at the UN were used to determine dispute between Gambia and Myanmar too. However, there Myanmar has replied to Gambia in a speech at the UN, unlike the present case were no such reply was made by Israel.
More specifically, South Africa argued that on 12 December 2023, at the UNGA meeting, its representative stated that “the events of the past six weeks in Gaza have illustrated that Israel is acting contrary to its obligations in terms of the Genocide Convention” (para 21 of the Order). It then argues that Israel denied the allegation in the FAQs published on 6 December 2023 and updated on 8 December 2023, which makes the denial prospective, since South Africa’s allegation were made only on the 12th of December 2023.
On a bilateral basis, South Africa said that, on 9 November 2023, the Director General of its Department of International Relations and Cooperation told the Ambassador of Israel to South Africa that, ‘while South Africa “condemned the attacks on civilians by Hamas”, it considered Israel’s response to the attack of 7 October 2023 to be unlawful and it intended to refer the situation in Palestine to the International Criminal Court, calling for investigation of the leadership of Israel for war crimes, crimes against humanity and genocide’. (para 21 of the Order) This statement is valid only for the purposes of the Rome Statute of the International Criminal Court (ICC) and not for the GC since, under the GC, no matter can be referred to the ICC.
Also, the FAQs aren’t a denial of South Africa’s claim. They were general statements. And even if one argues that the denial was aimed at South Africa, they, in themselves, don’t indicate dispute. The South West Africa judgment itself, cited approvingly by the court, says so. It notes “(a) mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its nonexistence.” (page 328, emphasis mine) What’s required is a positive opposition of the claim. While it’s true that Israel denied committing Genocide, its denial was not a reply to South Africa’s claims of genocide. South Africa wasn’t the only one to claim genocide. As its own Application notes, multiple bodies, including UN experts and the Committee on the Elimination of Racial Discrimination had referred to the events in Gaza as genocide. (South Africa’s Application, para 3). Some of these allegations were made before South Africa alleged genocide on 12 December, which was 6 days after Israel had denied such allegations. As such, it seems more prudent to assume that Israel’s FAQs were more directed towards the UN experts and other bodies claiming genocide, than towards South Africa which hadn’t even claimed genocide on 6 December, 2023.
Another example of South Africa engaging with Israel on a bilateral basis is the Note Verbale it sent on 21 December 2023. To me, this was the most appropriate tool to determine existence of a dispute. In the Gambia v Myanmar case, Note Verbale was used to prove existence of a dispute. When Myanmar claimed that there was no dispute between itself and Gambia and that Gambia was acting on behalf of Organization of Islamic Cooperation, the court noted that by not replying to Gambia’s Note Verbale, Myanmar had shown that it disputes Gambia’s position on the matter of law. It noted:
“In light of the gravity of the allegations made therein, the Court considers that the lack of response may be another indication of the existence of a dispute between the Parties. As the Court has previously held, “the existence of a dispute may be inferred from the failure of a State to respond to a claim in circumstances where a response is called for”.” (para 28, emphasis mine)
In my review of the Court’s Order on Provisional Measures in that case, I had noted how Note Verbale was the most appropriate tool to ascertain that there was a dispute between Gambia and Myanmar.
Same could have been the case here. South Africa’s allegations were grave. And though neither the Application nor the Order tells us about the content of the Note Verbale, based on the oral arguments made, it’s safe to assume that some response by Israel was warranted. However, South Africa, after receiving a reply to its Note Verbale, which asked for further discussion, filed a case within eight days of sending the Note Verbale. While there is no fixed time frame to wait for a reply, just to contrast, Gambia waited for a month for Myanmar’s reply. It sent the Note Verbale on 11 October 2019, and filed an Application to the ICJ on 11 November 2019. Even then, Myanmar claimed that:
“…the Note Verbale in question did not call for a response as it did not formulate specific allegations of violations of the Convention, and, in any event, such a response could not be expected within a month”. (para 24, emphasis mine)
Another reason why the Note Verbale should have more prominence in determining the dispute is because of the court’s jurisprudence saying that “(t)he date on which the existence of a dispute must be determined is in principle the date on which the application is filed.” (para 52, Nicaragua v. Colombia) South Africa filed the Application on 29 December, eight days after sending the Note Verbale and seemingly being uninterested in engaging in negotiations with Israel on its claims. as per court’s jurisprudence, 29 December is the date for determination of dispute. By that date, South Africa had claimed genocide, Israel had denied claims of Genocide, but these two parties never really addressed each other directly on the allegations of Gencoide. The only direct communication between the two parties happened via the Note Verbale and that communication too was nipped in the bud.
On the failure of any fruitful outcome of the Note Verbale, due to South Africa’s apparent denial of negotiations, Judge Ad Hoc Barak noted that:
“While the jurisdictional clause of the Genocide Convention does not require formal negotiations, the principle of good faith dictates that at least some efforts should be made to resolve disputes amicably before resorting to the Court.” (para 15)
Conclusion
I would like to recall what the court said in its Order – “(t)he existence of a dispute is a matter for objective determination by the Court; it is a matter of substance, and not a question of form or procedure.” (para 25) This is the part which threatens to make my entire argument invalid. The court has since long maintained that determination of a dispute is in the substance, rather than the procedure. Hence, the fact that South Africa claims that Israel is committing Genocide in Gaza and Israel’s denial of any claims of Genocide is enough substance to prove existence of a dispute. Having said that, in international adjudications, and specially where crime of Genocide is under consideration, evidence of dispute needs to be proved, rather than assumed. Israel’s FAQs weren’t denial of South Africa’s claims (which didn’t even exist at the time). Further, South Africa’s unwillingness to engage with Israel on the matter contained in the Note Verbale and its subsequent filing of Application seems more rushed than urgent.
A final counterargument to my analysis could be that at the Provisional Measures stage, the threshold to prove a dispute is very low. However, in its Order, the court didn’t say so. While it agreed that for other aspects of the Order, evidentiary threshold is very low at the Provisional Measures stage, there was no such restriction for determination of a dispute.
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