By Prof. (Dr.) Bharat H. Desai
Majesty of International Law
As India celebrated her 75th Republic Day, on January 26, 2024, the International Court of Justice (ICJ; The Hague) pronounced its order for the Provisional Measures (January 26, 2024) in the Genocide case (South Africa v. Israel). The ICJ emphatically ordered that “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 Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention” as well as “ensure with immediate effect that its military does not commit any acts” and “take all measures within its power to prevent and punish the direct and public incitement to commit genocide”.
Thus, the beginning of January 2024 – alike 2023 – came with a glimmer of hope for the beleaguered Gaza Strip, a part of the Occupied Palestinian Territory (OPT). The ICJ unveiled public hearings on January 11-12, 2024 in the case brought on December 29, 2023 by South Africa against Israel concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). This contentious ICJ case ostensibly arose on the ground of ‘genocide’ even as another advisory proceeding on the OPT, on the request of the UN General Assembly (UNGA), is pending before the Court (see author’s SIS Blog Special; January 26, 2023).
The fact that Israel chose to join the ICJ proceedings underscored the majesty of International Law. Israel has so far refused to comply with two back-to-back resolutions adopted by the UN Security Council (UNSC) [see resolution 2720 of December 22, 2023 (N2342487.pdf (un.org) and 15 November 15, 2023 (N2335902.pdf (un.org)] as well as the two resolutions of the UNGA [see resolution A/RES/ES-10/21 adopted on 27 October 2023 and resolution A/RES/ES-10/22 adopted on 12 December 2023]. After the oral hearings concluded (January 11-12, 2024) at the ICJ, the Court went into huddle to ponder over the proverbial provisional measures. It was coincided by thousands of protesters coming to the streets of Washington DC, London, Paris demanding an end to brutal war and the humanitarian catastrophe. “No one, not even The Hague, can halt war,” the Israeli Prime Minister Benjamin Netanyahu, in response to the ICJ proceedings, said. (Indian Express, January 14, 2024 at 16).
The ICJ Provisional Measures Order
South Africa had sought provisional measures in relation to the Palestinian people as a group protected by the 1948 Genocide Convention (signed December 9, 1948; entered into force January 12, 1951; Parties: 153, as of April 2022). Among the specific pleas, South Africa urged the Court to indicate “provisional measures” on nine counts that included: “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”. Thus, the ICJ order in letter and spirit ordered Israel that it “shall” “prevent the commission of all acts within the scope of Article II of this 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” [paragraph 86 (1)]. It reflects, verbatim, all the clauses except clause (e) of Article II of the Genocide Convention.
For the total six counts of the Court’s order, all 14 regular judges including the President, outgoing US Judge Donoghue, took unanimous view. Only regular judge who voted against the Court’s order remained, Judge Julia Sebutinde (Uganda). Her Ugandan nationality immediately brought repudiation from the state of nationality (Uganda). “Justice Sebutinde ruling at the International Court of Justice does not represent the Government of Uganda’s position on the situation in Palestine,” the ambassador of Uganda to the United Nations said.
Israel nominated Judge ad-hoc Barak also voted in favor of the Court’s order on two counts: (3) “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” and (4) “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip” (Provisional Measures Order; January 26, 2024). As a result, the stage is set for compliance with the ICJ order.
Genocide as an Odious Scourge: 1948 Convention
In the aftermath of the Second World War (1939-45), crime committed by the individual came on to the global radar screen. In effect, it brought a paradigm shift wherein International Law recognized ‘individuals’ as a subject (as compared to prevailing notion of the States being the only and exclusive subjects). As a result, the UNGA, by resolution 96 (I) of December 11, 1946: The Crime of Genocide, affirmed that “genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world”. The Assembly called upon the UN Member States to “to enact the necessary legislation for the prevention and punishment of that crime” as well as requested the Economic and Social Council (ECOSOC) “to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide”.
As desired by the ECOSOC, the UN Secretary General (UNSG), with the assistance of the Division of Human Rights and a group of three experts (Henri Donnedieu de Vabres, Raphael Lemkin and Vespasien Pella), prepared a draft convention along with a commentary (E/447, 26 June 1947). It was followed by special ECOSOC resolution 77 (V) of 6 August 1947 that proposed to proceed as rapidly as possible with the consideration of the question of genocide. The UNGA gave further guidance to the ECOSOC vide resolution 180 (II) of 21 November 1947 to continue its work on ‘genocide’. As a corollary, the ECOSOC by resolution 117 (VI) of 03 March 1948, established an Ad Hoc Committee on Genocide. It comprised national representatives (the USA, the Soviet Union, Lebanon, China, France, Poland and Venezuela). The Ad Hoc Committee prepared a second draft convention with commentaries (E/794, 5 April-10 May 1948).
The 1948 Genocide Convention was adopted through the vehicle of the UNGA resolution 260 A (III) of December 09, 1948. It came into force on January 12, 1951 on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession (Article XIII). It graphically described genocide as an “odious scourge”. The preamble chillingly reminds that “all periods of history genocide has inflicted great losses on humanity” and hence its primary rai·son d'être is to “liberate mankind from such an odious scourge, international co-operation is required” (Preamble, para 4). In an interesting co-incidence, the global International Law discourse on the crime of genocide has returned to haunt the humankind in three recent contentious cases before the ICJ: (1) South Africa v. Israel (Provisional Measures; January 26, 2024); (2) Ukraine v. Russian Federation (Provisional Measures; February 25, 2022); (3) Gambia v. Myanmar (Jurisdiction; July 22, 2022); Provisional Measures; November 11, 2019).
Tightrope Walk by the ICJ: Sifting through Political v. Legal
In the above mentioned context, in the three ‘genocide’, the ICJ has sought to do a tightrope walking on the political and the legal sides of the cases. Still, it has expressed grave concerns on the systematic act of both State actors and non-state actors in carrying out violent acts in the conflict zones. For instance, in the South Africa v. Israel case, the ICJ observed that “It is gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release.” (Provisional Order, paragraph 85). It shows that the Court has sought to steer clear of the role of the non-state actors (Hamas and others) in stoking global conflicts as well as their patrons. The primary obligation for the prevention of the crime of genocide remains with the State actors.
Ironically, as seen in the three genocide cases, every State actor (Israel; Ukraine; Myanmar), has emphatically denied all allegations of ‘genocide’ cases. As the South African legal counsel sought to portray vivid description of both an ‘intention’ and the actual conduct in the conflict impinging upon the essential ingredients of the “crime of genocide” listed under Article II of the 1948 Genocide Convention. Piecing together the evidence presented, the ICJ prima facie seems to have construed various actions of Israel as falling under the definition of ‘genocide’. The Provisional Measures Order (January 26, 2024) appear to speak for itself since the ICJ has ordered Israel to “take all measures within its power to prevent the commission of all acts within the scope of Article II of this (Genocide) Convention” [paragraph 86 (1)]. Though the vital questions of ‘jurisdiction’ and ‘merits’ are still far away in this case, the Court has rose to the occasion to uphold the majesty of International Law (as the principal judicial organ of the UN) by tying down the State of Israel with all the specific requirements [ paragraph 86 (1) to (6)]. As of now, having decided to appear before the ICJ, there does not seem to be any reason to doubt Israel’s compliance with the ICJ order.
It remains to be seen as to how does the ICJ proceeds in the pending advisory proceeding on the OPT case including the Gaza Strip. It has emanated from the General Assembly resolution 77/247 of December 30, 2022 (adopted by 87-26-53 votes). The UNGA resolution explicitly recalled the previous UNGA requested ICJ advisory opinion (July 09, 2004) entitled: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. It has also demanded that Israel, the occupying Power, comply fully with the provisions of the 1949 Fourth Geneva Convention (protection of civilian persons in time of war) and cease immediately all measures and actions taken in violation and in breach of the said Convention. The UN Charter has explicitly conferred competence (Article 96) on the UNGA to “request the International Court of Justice to give an advisory opinion on any legal question”. In turn, the Court has competence under Article 65 of its own Statute to render an advisory opinion. The ICJ has, as the practice show, always provided an opinion sought by the UNGA and, in turn, it has accepted in letter and spirit the opinions rendered by the ICJ.
Audacity of Hope
In conjunction with and in the context of the Genocide case, State of Israel seems to be encircled in a web of a series of remedies prescribed by International Law. Hopefully, it will see reason by leaving aside the ghost of Hamas and return to the negotiation table with the Palestinian Authority to work out the two-state solution, as per the UN resolutions and as uniformly sought by all including the USA. At one level, it underscores the ‘actual working’ of International Law as well as the UN to bring about sanity and order in a troubled world wherein some two billion people, one-fourth of the global population, live in conflict zones. The connoisseurs of International Law and International Relations need to take positive and constructive approach as enablers by providing concrete ideas and show a beacon of hope for resolution of the root causes of conflicts for a peaceful future of the humankind.
This Article is an Original Contribution to the SIS Blog and is the 9th article in the Author’s SIS Blog Special Series on the ‘Use of Weapons of War’.
Prof. (Dr.) Bharat H. Desai is Professor of International Law and Chairperson of the Centre for International Legal Studies (SIS, JNU), who served as a member of the Official Indian Delegations to various multilateral negotiations (2002-2008), coordinated the knowledge initiatives for Making SIS Visible (2008-2013) and the Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020) as well as contributes as the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam).