Introduction
In the recent South Africa vs. Israel case, the International Court of Justice (ICJ) issued a significant order on provisional measures related to Israel’s military operations in Gaza, alleging genocide. This development has sparked extensive discussions among international scholars, representing a pivotal moment in the ongoing discourse on international law and humanitarian concerns. Distinguishing itself from existing discussions, this article analyses the dissenting opinions of the judges. To do this, the article delves into two pivotal facets addressed by the case. Firstly, it delves into the dissenting judge’s assessment of the admissibility of the case, with a focus on the concept of erga omnes partes. Secondly, it analyses the diverging opinions of judges on evidence sufficiency and the “at least plausible” test underscoring the inherent complexity in evaluating claims of genocidal intent.
Judicial Disparity in Prima Facie Jurisdiction
ICJ initially addresses the issue of prima facie jurisdiction. The basis for the Court’s jurisdiction is Article IX of the Genocide Convention, which conditions its authority on the existence of a dispute related to the interpretation, application, or fulfilment of the Convention. To determine the existence of a dispute (or a a disagreement on a point of law or fact, a conflict of legal views or of interests between two parties) at the time of filing the application, ICJ considers statements or documents exchanged between the Parties, as well as any exchanges in multilateral settings. The Court places particular emphasis on the author, the intended or actual addressee, and the content of these statements or documents when assessing the presence of a dispute. This approach aligns with the Court’s methodology, as illustrated in the case of Ukraine v. the Russian Federation, where it emphasised these factors in the context of provisional measures (¶ 35).
In his separate opinion, Judge Ad Hoc Barak asserts that South Africa’s initiation of the case at the ICJ is primarily politically motivated (see ¶15, separate opinion). Further, Judge Sebutinde, in her dissenting opinion, argues that the Court’s prima facie jurisdiction should be confined to the Genocide Convention and does not extend to alleged breaches of international humanitarian law (IHL) (see ¶3, dissenting opinion). Their dissent predominantly hinges on the contention that South Africa failed to demonstrate the genocidal intent of Israel.
Notably, Judge Sebutinde does not consider the existence of a dispute related to the interpretation of the Convention substantial enough to warrant the court’s jurisdiction in this case. The irony arises from her assertion that disputes falling within the Genocide Convention’s scope should be confined to the convention itself, while simultaneously hesitating to recognise the case’s jurisdiction under Article IX of the Genocide Convention. The official order of the court acknowledges that South Africa made public statements in various multilateral and bilateral settings, expressing the view that Israel’s military operations in Gaza amounted to violations of its obligations under the Genocide Convention. In contrast, Israel, as indicated in a document from the Israeli Ministry of Foreign Affairs, adamantly dismissed any accusations of genocide in the context of the Gaza conflict, thereby presenting a clear divergence of views on whether Israel’s actions constituted violations of its obligations under the Genocide Convention (see ¶¶26, 27). The court’s reasoning aligns with the metric established in the case of Ukraine v Russia, which outlines considerations for determining the existence of a dispute (¶35).
The acknowledgment of South Africa’s application by the ICJ serves to underscore the importance of the erga omnes partes concept in safeguarding common values and interests delineated by multilateral treaties, particularly when these values and interests face a genuine and imminent threat of irreparable prejudice as was highlighted in Gambia v. Myanmar (¶41). Erga Omnes Partes, in this context, provides that any State party to the Genocide Convention, and not only a State that is particularly afflicted, may call upon the responsibility of another State party in order to determine and terminate any purported failure to uphold its responsibilities under the Convention. Since, both, South Africa and Israel are party to the Genocide Convention, they have the right to bring a case against another state for the violation of the convention under erga omnes partes principle. While Judge Barak’s assertion regarding the potentially politically motivated nature of South Africa’s action may contain some merit, it is crucial to assert South Africa’s entitlement to recourse to the court under the erga omnes partes principle. In accordance with Gambia v. Myanmar, the ICJ does not deem the underlying political motivations of the state party invoking its jurisdiction as a relevant consideration, thereby precluding it from constituting grounds for a jurisdictional challenge (¶44).
Legal Nuances in Plausibility Standard
The ICJ has recurrently incorporated the “at least plausible” test in its pronouncements on provisional measures in recent cases. Provisional measures serve the purpose of safeguarding the rights of involved parties until the court reaches a final decision on the case. In order to grant provisional measures, the court requires a basic demonstration that the rights claimed by the applicants are “plausible.” However, Ad Hoc Judge Kress, in his declaration on the matter in Gambia v. Myanmar, underscores a persistent ambiguity concerning the precise scope of this test within the court’s jurisprudence. He asserts that despite the firm grounding of this test, articulating the court’s standard of plausibility with precision remains an ongoing challenge.
Turning to the examination of the Plausibility test, both Judge Nolte and Ad Hoc Judge Barak scrutinise the factual circumstances of the Gambia case since that case had the similar nature being “crime of genocide” and was brought under Genocide Convention. Their analyses delve into the reports and evidence upon which the court relied in the Gambia case, scrutinising whether the evidence in the current case sufficiently justifies the threshold of plausibility. Noteworthy is the divergence in conclusions reached by both judges, despite a shared analytical approach. This disparity in outcomes prompts a consideration of the application and interpretation of the “at least plausible” test, emphasising the complexity inherent in such determinations.
In the Gambia case, the ICJ meticulously considered comprehensive reports submitted by the Independent International Fact-Finding Mission on Myanmar. Each of these reports underwent scrutiny and ultimately affirmed the plausibility of the existence of genocidal intent. Grounded in these findings on genocidal intent, the Court deemed the rights under the Genocide Convention to be plausible. (¶56) In contrast, the present case reveals a divergence. The claims advanced by South Africa lack substantive primary documentation and primarily rely on statements made by representatives of the Office for the Coordination of Humanitarian Affairs (OCHA), the World Health Organisation (WHO), and the United Nations Relief and Works Agency for Palestine Refugees (UNRWA). The dissent contends that such reliance on statements falls short of establishing plausible intent under the Genocide Convention, when compared to Gambia case where more comprehensive reports were considered while deciding plausibility. (¶36, dissenting opinion) Substantiating this, Judge Nolte emphasises that the Israeli government’s directives urging civilian population evacuation, an officially mandated policy, and orders to soldiers not to target civilians, coupled with the dynamics of opposing forces on the ground and facilitation of humanitarian aid delivery, all present alternative plausible inferences from an alleged “pattern of conduct” than one indicative of genocidal intent. (¶14, Declaration) This disparity between Gambia case and South Africa case was particularly emphasised by the judges to underscore the importance of evaluating the strength of evidence presented in each case to determine the credibility of claims regarding genocidal intent.
In contrast to Judge Sebutinde, who rejects the plausibility of provisional measures, Judge Nolte adopts a nuanced perspective. While he concurs that he does not find it plausible that the military operation is being conducted with genocidal intent, (¶15, Declaration) his decision to endorse provisional measures relies on the credible assertion made by South Africa. Specifically, Judge Nolte acknowledges that certain statements by Israeli State officials, including members of its military, present a plausible risk of causing real and imminent prejudice to the rights of Palestinians under the Genocide Convention. Crucially, these statements, as argued by Judge Nolte, contribute to a potential failure by Israel to prevent and penalise acts of public and direct incitement to genocide, thereby invoking Israel’s obligation to prevent genocide. Additionally, Judge Nolte underscores the importance of affording due weight to the evaluations made by United Nations agencies concerning the circumstances faced by the group of Palestinians in the Gaza Strip.
While Judge Sebutinde adopts a more stringent understanding of the plausibility threshold, Judge Nolte recognises the significance of statements made by Israeli officials in potentially inciting genocide and thereby triggering Israel’s preventive obligations—an aspect not considered by Judge Sebutinde. This nuanced contrast in their perspectives highlights the complexity inherent in evaluating claims under the plausibility standard and the different considerations each judge brings to the analysis.
Moreover, while both judges draw parallels between the cases, there appears to be a gap in their recognition of the underlying intent of the court in the Gambia case in deeming it plausible. Ad Hoc Judge Kress, in his declaration, delves into the intended purpose behind the plausibility standard. He posits that in cases where the allegations are of an exceptionally grave nature, the court, at the merit stage, must apply a fortiori “at the provisional measure phase.” This concept aligns with the Fumus non mali juris test, which necessitates a pronouncement on the merits without definitively establishing the facts or the rights and obligations of the parties. Judge Kress asserts that this approach was indeed adopted by the court in the order concerning the question of genocidal intent. Therefore, relying on a comparative analysis of factual matrices from prior orders arguably contradicts the essence of the Fumus non mali juris concept. This test mandates a pronouncement on merit without relying on “definite facts.”
Conclusion
The Court, with a decisive majority of 15 votes to 2, has unequivocally mandated Israel to undertake all necessary measures within its capacity to prevent acts of genocide, as defined by the Genocide Convention. This binding mandate signifies a clear obligation on the part of Israel to comply with the prescribed measures. While Judge Sebutinde’s dissent posits that the Israel-Palestine dispute is primarily political, this analysis underscores the presence of legal disputes in the case. I respectfully disagree with Judge Sebutinde’s assertion that this case lacks legal dispute, emphasising the substantive legal issues at play in this case. This analysis delved into the nuanced opinions of the judges, particularly regarding Prima Facie Jurisdiction and the “at least plausible” test. The intention is to underscore the existing ambiguity within the jurisprudence of the “at least plausible” standard and offer criticism of certain aspects of the dissenting opinions. In navigating these complex legal waters, it becomes clear with a clear majority of 15-2 that despite differing perspectives, the Court recognises the legal implications and responsibilities surrounding the prevention of genocide.
Garvit Shrivastava is a law student at Jindal Global Law School, and the Editor-in-Chief of JFIEL (2024).
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