On Friday, the International Court of Justice (ICJ) issued its Order in the case brought by South Africa against Israel under the Genocide Convention. Below we provide some context to understand the judgment.
[Editor’s note: Stay tuned: Just Security will have significant coverage later today, including (1) a roundup of expert views, (2) analysis of different countries’ responses, and (3) a podcast with Professors Oona Hathaway, Adil Haque, and Yuval Shany with host Paras Shah. Catch up to speed with our past coverage of the ICJ case and the Israel-Hamas War.]
1. A decision not about whether Israel is committing genocide
The Court stated explicitly that it is not deciding on the merits whether Israel’s actions in Gaza amount to genocide. As the Court said in a previous case at the provisional measures phase of proceedings, “The Court is not called upon, for the purposes of its decision on the Request for the indication of provisional measures, to establish the existence of breaches of the Genocide Convention” (Gambia v. Myanmar 2020, para. 44). The Court also repeated today language from Gambia v, Myanmar: “The Court is not called upon to determine definitively whether the rights which South Africa wishes to see protected exist; it need only decide whether the rights claimed by South Africa and for which it is seeking protection, are plausible.” The Court held that “as least some of the rights claimed by South Africa” met the test of plausibility (para. 54).
In contrast, determination of whether Israel’s conduct amounts to genocide is for the “merits” phase of the proceedings – which will likely occur years from now – after Israel has the opportunity to raise “preliminary objections” to jurisdiction and the Court decides on that matter, after both parties have filed additional briefs and other States have submitted written pleadings staking out their positions on the facts and the law. (Before today, a handful of States already said they would intervene in later proceedings – including Germany in favor of Israel, and Bangladesh, Jordan, and Nicaragua in favor of South Africa.)
At the same time, the Court at this early stage, in deciding whether to issue emergency measures, must assess if there is “the existence of a real and imminent risk of irreparable prejudice to the rights protected under the [Genocide] Convention” (Gambia v. Myanmar 2020, para. 74). The Court found that Israeli conduct in the Gaza Strip met that test (paras. 66 & 74). The Court said that Israel’s actions to minimize harm to civilians and to respond to incitement did not sufficiently remove the risk of irreparable harm (para 73).
2. A Very Low Evidentiary Threshold Now. A Very High Threshold Later
Friday’s opinion was a far easier hurdle for South Africa to clear – based on a very low standard of proof – compared to the standard of proof that will be required were the Court to reach the merits phase. This is true of any ICJ case. It is especially true of a case about genocide, for which the Court has imposed the highest standard of proof at the final merits stage.
Judge Greenwood described the low standard of proof (and the potentially temporary nature of the Court’s findings) at this initial stage of proceedings (in Georgia v. Russia 2011):
“I do not consider that the Court’s … Order regarding provisional measures of protection operates to constrain the approach which the Court should take in the present phase of the proceedings. … Requests for the indication of provisional measures of protection are considered as a matter of urgency, as required by Article 74 of the Rules of Court, without the opportunity for the consideration of extensive evidence or the detailed analysis of legal issues which can be undertaken in later phases of the proceedings. The jurisdictional threshold which the applicant has to cross is, accordingly, set quite low and any ruling — whether as to law or fact — which the Court makes at the provisional measures stage of a case is necessarily provisional.”
Greenwood explained that the reason for the provisional nature of the ruling at this stage is due to the “matter of urgency” that gives rise to expedited proceedings. That factor is present in the current case, where South Africa asked the Court to issue provisional measures “as a matter of extreme urgency” (§ 144), and the judges acted with great dispatch. The Court held public hearings within two weeks of South Africa’s initial application, and issued today’s judgment within two weeks of those public hearings.
At the merits stage of determining whether genocide is occuring, the Court imposes the highest, almost insurmountable, standard of proof. In Bosnia v. Serbia (2007), the International Court of Justice stated 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” (para. 373). That is, genocidal intent must be “the only inference that could reasonably be drawn from the acts in question” (Croatia v. Serbia (2015), para. 148). In Bosnia v. Serbia (para. 209) and reiterated in Croatia v. Serbia (para. 178), the Court stated, “claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive.”
3. Provisional Measures: What South Africa Asked For v. What the ICJ Granted
Since the LeGrand case in 2001, the Court has asserted that its orders for provisional measures are binding. The Court noted today that the provisional measures “need not be identical” to those requested by South Africa. It is especially notable which provisional measures the Israeli ad hoc judge, Aaron Barak supported. It is also notable that the Court did not order the first provisional measure requested by South Africa, namely, calling on the ICJ to order that “the State of Israel shall immediately suspend its military operations in and against Gaza” (South Africa Application, para. 144). South Africa had also requested the Court to identify South Africa’s own obligations – as a third party State – to prevent genocide and proposed the Court include South Africa in the provisional measures in that regard. The Court made no reference to South Africa’s obligations in its discussion of provisional measures.
The Court required Israel:
1) By 15 votes to 2: Refrain from acts under the Genocide Convention
“The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide in relation to the Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article 2 of the 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.”
AGAINST: Judge Julia Sebutinde (Uganda) and Judge ad hoc Aaron Barak (Israel)
Note-1: Some commentators have noted that this first provisional measure does not reference intent. However, the Court does refer to Israel taking these steps “in accordance with its obligations under” the Genocide Convention, and the ICJ earlier stated in its Order that “the Court recalls that these acts fall within the scope of Article II of the Convention when they are committed with the intent to destroy in whole or in part a group as such” (para. 78).
Note-2: The Court’s language on the provisional measure closely mirrors South Africa’s proposed language. In its application, South Africa proposed: “The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people as a group protected by the Convention on the Prevention and Punishment of the Crime of Genocide, desist from the commission of any and all acts within the scope of Article II of the Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to the 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.” This language also closely mirrors the provisional measure ordered by the Court in Gambia v. Myanmar (para. 79).
2) By 16 votes to 1: Prevent and Punish Incitement to Genocide
“The State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip.”
AGAINST: Julia Sebutinde (Uganda)
3) By 16 votes to 1 – Take effective measures to allow humanitarian assistance
“The State of Israel shall take immediate and effective measures. to ensure the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.”
AGAINST: Judge Julia Sebutinde (Uganda)
4) By 15 votes to 2 – Take effective measures to prevent destruction of evidence
“The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts” within the scope of the Convention.
AGAINST: Judge Julia Sebutinde (Uganda) and Judge ad hoc Aaron Barak (Israel)
5) By 15 votes to 2 – Submit a report to Court on compliance with all measures within one month
“The State of Israel shall submit a report to the court on all measures taken to give effect to this order within one month as from the date of the order”
AGAINST: Judge Julia Sebutinde (Uganda) and Judge ad hoc Aaron Barak (Israel)
The Judges of the Court
President Joan Donoghue (United States)
Vice-President Kirill Gevorgian (Russia)
Peter Tomka (Slovakia)
Ronny Abraham (France)
Mohamed Bennouna (Morocco)
Abdulqawi Ahmed Yusuf (Somalia)
Xue Hanquin (China)
Julia Sebutinde (Uganda)
Dalveer Bhandari (India)
Patrick Lipton Robinson (Jamaica)
Nawaf Salam (Lebanon)
Iwasawa Yuji (Japan)
Georg Nolte (Germany)
Hilary Charlesworth (Australia)
Leonardo Nemer Caldeira Brant (Brazil)
Judges ad hoc
Aaron Barak (Israel)
Dikgang Ernest Moseneke (South Africa)