Aman Kumar
Continuing with the analysis of the ICJ’s Provisional Measures Order in South Africa v Israel case, I will discuss the order on obligations Erga Omnes Partes and Plausibility in this post. In the previous post of this series, I had discussed court’s observation on ‘Dispute’.
On obligation Erga Omnes partes
A dispute can be brought before the ICJ by a state, who is a member of the UN. Article 93 of the UN Charter states:
All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.
The ongoing war in Palestine is between Israel, a state, and Hamas, a non-state entity. But the dispute brought before the court was by South Africa (SA), which is not directly involved in the war. Therefore, the court had to decide on SA’s locus standi before it.
As discussed in the previous post, South Africa has brought the case under the Genocide Convention (GC). It has invoked court’s dispute settlement authority under Article IX of the GC. For its locus, SA referred to Article I of the GC, which states:
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
SA claimed that under the GC, it has an obligation to prevent commission of genocide, under Article I. Israel didn’t challenge this. The court noted in its judgment that:
all the States parties to the Convention have a common interest to ensure the prevention, suppression and punishment of genocide, by committing themselves to fulfilling the obligations contained in the Convention.(para 33, emphasis mine)
For this, the court referred to its decision in The Gambia v Myanmar case for this ‘common interest’. As per the court, under the GC, obligations are owed by any state party to all the other state parties and such obligations are known as obligations erga omnes partes. In Gambia case too, Myanmar wasn’t involved in a conflict with Gambia. Rather, it was accused of committing genocide inside its territory. However, the court ruled that Myanmar had erga omnes obligations towards all the other members of the GC to not commit genocide. Therefore, the court concluded that SA had standing to submit its dispute with Israel regarding alleged violations of the GC. (para 34)
Writing on this principle, Judge Xue noted in her Declaration that:
in international law there are certain international obligations owed to the international community as a whole; by the very nature of their importance all States have a legal interest in their protection. They are obligations erga omnes. (para 4 of her Declaration)
She noted how the court had failed to recongnise the standing of Ethiopia and Liberia in their case against South Africa for breach of its mandatory power in South West Africa.
Invoking erga omnes obligation has not been a recent phenomenon at the ICJ. The court used it way back in 1970 in its Judgment in Barcelona Traction case. More recently, the principle was used in the Gambia v Myanmar case. In Gambia case, the question was whether Gambia could allege dispute with Myanmar under the GC, while not suffering any injury. The court ruled that it could. The current case is a bit different as it involves a third party too, i.e. Palestine. In Gambia case, Myanmar was accused of committing Genocide against its own nationals. But SA’s accusation against Israel are for committing Genocide of non-Israeli people, i.e. of Palestinians. This complexity is dealt with by Jan-Phillip Graf in his post here.
What’s also of interest is the convergence of the erga omnes partes obligation with the question of locus standi. Judge Xue has long held the position that “the Court’s pronouncement on the obligations erga omnes partes cannot be taken as a legal basis for (a state’s) standing in the case before the Court.” She expressed this view in her dissent in The Gambia v Myanmar case. (para 37) In the current case, divergin from her earlier opinion, she noted that:
"this is the very type of case where the Court should recognize the legal standing of a State party to the Genocide Convention to institute proceedings on the basis of erga omnes partes to invoke the responsibility of another State party for the breach of its obligations under the Genocide Convention " (para 4 of her Declaration)
This is a significant depatrure, specially for Xue considering her historical stance against mixing the obligation with question of standing before the court. (For an analysis of her stance, read Priya Urs brilliant analysis here.)
On Plausibility
Article 41 of the Statute of the ICJ states that:
The 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.
Pending the final settlement of disputes between the parties, the court can grant certain ‘provisional measure’, if the Applicant requests so. In the current case, SA requested the court to grant nine such measures. The court granted most of those measures after it was satisfied ‘that the rights asserted by the party requesting such measures (we)re at least plausible’. It noted that:
This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention. (para 54)
as one can notice, there are two rights the court recognised: rights of Palestinians in Gaza to exist, and SA’s right to seek Israel’s compliance with the GC. The court noted that both these rights were under threat of immediate violation. It said that the these rights are under Article II of the GC, as claimed by SA. This Article says:
In the present Convention, genocide means any of the following acts committed with
intent to destroy, in whole or in part, a 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;
(e) Forcibly transferring children of the group to another group.(Emphasis mine)
The court noted that ‘the intent must be to destroy at least a substantial part of the particular group’. Interestingly, it observed that:
The Palestinians appear to constitute a distinct “national, ethnical, racial or religious group”, and hence a protected group within the meaning of Article II of the Genocide Convention. The Court observes that, according to United Nations sources, the Palestinian population of the Gaza Strip comprises over 2 million people. Palestinians in the Gaza Strip form a substantial part of the protected group. (para 45)
The court didn’t say if Palestinians are a ‘national’ group, since the question of statehood is sub judice before the court. However, the court didn’t say anything on the question of Genocidal intent. In the next and final part of this analysis, I discuss the glaring absence of genocidal intent in the court’s order.
After noting that the rights claimed by SA existed, the court then determined that such rights were under the risk of irreparable prejudice and urgency. It said that it:
has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings or when the alleged disregard of such rights may entail irreparable consequences." (para 60)
It then noted that:
The condition of urgency is met when the acts susceptible of causing irreparable prejudice can “occur at any moment” before the Court makes a final decision on the case (para 61)
After noting the reports in the situation in Gaza by the Secretary-General of the UN, UNRWA, WHO, it observed that the situation in Gaza is at the serious risk of deteriorating further before the court gives it final judgment (which might take years). Thus, it observed that there was an imminent threat to the rights claimed by SA.
Judge Ad Hoc Barak disagreed with the court’s holding on plausibility. He compared the current case with The Gambia v Myanmar and noted how in that case reports of fact finding missions were relied upon to determine the violation of rights, and writes that ‘(i)n the present case, there is no evidence comparable to that available to the Court in the Gambia case.’ He links the reports of UNRWA, WHO etc with the requirement of ‘genocidal intent’ and notes that none of these reports ‘mention the term genocide or point to any trace of intent’.
In the next and final part of the series, I discuss the issue of Genocidal Intent, Measure given and the debate about GC versus International Humanitarian Law.
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