Dora Vanda Velenczei, incoming PhD scholar at Monash University Faculty of Law, regional coordinator in charge of the Asia-Pacific region for the Journal on the Use of Force in International Law State Digest.

The Republic of South Africa rocked the world when it took the State of Israel to the International Court of Justice for allegedly violating the Genocide Convention. States are on pins and needles: some want to see Israel held responsible, and some are either silent or are in support of Israel. Several states further expressed their intention to intervene in later stages of the proceedings; some in favour of Israel, some on behalf of South Africa. (See a breakdown of state reactions here.) Equally, the public response featured this division too. The rapidly deteriorating humanitarian situation in the Gaza Strip further makes this a judicial case of paramount importance.

The question this post seeks to explore is whether a South African win on the merits of the case is realistic. In order to answer it, I look at the provisional measures declarations and the separate opinion by Judge Ad Hoc Barak; I touch on the crime of genocide generally as well as the Bosnia Genocide case. The Bosnia Genocide case is the first case, and unique piece of jurisprudence so far, where the Court decided on the responsibility of a State for the crime of genocide. The Court found Serbia responsible for not having prevented the genocide of Srebrenica. Thus, it is imperative to examine it.

Concerning the current case, the Court, expectedly, took a (politically) cautious approach at the provisional measures stage. The Court largely reiterated Israel’s existing obligations under the Genocide Convention, which Israel claims it has been complying with. The Court regrettably did not seek to engage with the issue as to what Israeli conduct can be seen as genocidal. Though this is partially understandable given that the plausibility test in Article 41 of the Statute of the Court only seeks to establish that rights asserted by the applicant state may exist.

Notably absent was a ceasefire order, which makes sense to an extent: first, Hamas cannot be party to the proceedings and thus the Court avoided making a unilateral ceasefire order. This is partly understandable given the Court cannot go beyond its judicial scope. Second, this way, the Court could avoid exploring the highly controversial issue of whether Israel has the right to defend itself. (Even Judge Sebutinde’s Dissenting Opinion is extremely cautious on this point; at para [13].) Though the Court reiterated that Hamas and other non-state actors are under an obligation to respect international law. (Order, at para [85].)

In their separate declarations, the judges took a disappointingly cautious language. While the provisional measures stage was subject to the much lower threshold of plausibility, the declarations were not silent on the different threshold requirement in subsequent stages. (paras [54], [58], [59], [66], [74] and [75] in the Order.)

To start, Judge Bhandari explicitly outlined that a very different threshold will apply in the merit stage and that South Africa’s actual claims under the Genocide Convention cannot be determined by the Court at this provisional stage yet. (Declaration of Judge Bhandari, paras [6]-[7].) Judge Bhandari further made explicit reference to the Bosnia Genocide case, where the Court articulated that genocidal intent can only be inferred if there is absolutely no other inference to be made. (Declaration at para [8]; Bosnia Genocide case, at para [148].) He confirmed the Court was not asked to determine whether such intent exists or existed. (at para [9].)

Judge Nolte’s Declaration too referred to the high legal threshold for establishing genocidal intent. (at para [8].) Strikingly, Judge Nolte went onto saying that South Africa has not shown that the ‘…military operation undertaken by Israel, as such, is being pursued with genocidal intent.’ (at para [13].) Judge Nolte was not persuaded even at this stage that there is a pattern of conduct from which genocidal intent could be the only possible inference. (at para [14].)

The Declaration of Judge Xue is much more optimistic given her reliance on the erga omnes partes nature of the obligation in the Genocide Convention and that ‘…all States have a legal interest in their protection’. (at para [4].) With this she indicates that South Africa’s legal action is commendable. Although notably, she makes no reference to genocidal intent and the threshold to prove dolus specialis. Her silence with respect to the standard of proof is notable.

The Separate Opinion of Israeli Judge Ad Hoc Barak was expected, although his concurrence regarding two of the provisional measures is remarkable. (Order, at para [86].) Predictably, Judge Ad Hoc Barak argued that while the plausibility threshold is much lower than the threshold to prove the mens rea of genocide, according to him, South Africa failed to establish even plausibility. (at paras [31]-[32]) He explained the Court relied on two reports issued by the Independent International Fact-Finding Mission to find plausibility for genocide in the Gambia v Myanmar case and that no such reliable evidence exists before the Court in this case. (Separate Opinion, at para [35]; Declaration of Judge Nolte, at para [12].) Finally, he also outlines that the Court’s ruling would somehow allow ‘…States to misuse the Genocide Convention in order to curtail the right of self-defence, in particular in the context of attacks committed by terrorist groups.’ (at para [41].)  

Indeed, South Africa will have a very difficult time in subsequent stages. Proving genocidal intent is extremely challenging. To unpack this, let me turn to the meaning and content of the crime of genocide in an international criminal legal context. I then turn to state responsibility.

The intent element in the crime of genocide is twofold: the perpetrator must have intended to commit an act that forms the basis of the charge (those acts enunciated in Article II (a)-(e) in the Genocide Convention); secondly that the acts have been carried out with the special intent to destroy the protected group in whole or in part. (Jelisić Appeal Judgment at paras [45], [50]-[55]; Seromba Appeal Judgment at para [174]; Tolimir Trial Judgment at para [744].)

The rationale behind the high threshold is because destruction is the ultimate aim of the perpetrator. (Trbić Trial Judgment at para [187]) The term “aim” covers the intent to destroy the group “as such”. (Ivanović Appeal Judgment, at para [44].) Negligence or indifference to the result of one’s conduct is insufficient to infer genocidal intent. (Ambos, at p 850.) The intent must be shown to have been present at the moment of the commission of the underlying act that forms the basis of the criminal conduct. (Simba Appeal Judgment at paras [264]-[266]) The law on genocide is thus extremely stringent even in cases involving individuals.

State responsibility requires an even higher standard. Indeed, the International Court of Justice in the Bosnia Genocide case was not convinced that the required intent existed. (at paras [277], [319], [354], [361] and [367].) The Court opined that it ‘…has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist; and 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.’ (at para [373].) The Court also emphasised that if genocide is not committed, a state cannot be held responsible a posteriori for not having prevented something that did not occur. (at para [431].) Consequently, the Bosnia Genocide standard is difficult to establish.

This, taken together with the language employed by the Judges in the current case, indicates that it will be difficult for South Africa to prove that Israel is responsible for genocide. For example, in its application, South Africa relies on statements ‘…by Israeli State representatives, including at the highest levels, by the Israeli President, Prime Minister, and Minister of Defence express genocidal intent.’ (South Africa’s Application, p 3.) The statements seem to suggest a genocidal intent, especially the total blockade announced by Defence Minister Yoav Gallant.

However, these statements cannot conclusively point to genocidal intent within the scope of the Bosnia Genocide ruling. They may help establish other international crimes, such as war crimes and crimes against humanity. However, these are not within the scope of the present judicial proceedings, and so the Court cannot examine Israel’s responsibility for other international crimes. (Bosnia Genocide case, at para [147].) Indeed, South Africa must show that not only Gazans are being killed within the context of the armed conflict between Hamas and Israel, but that they are being killed with the intent to destroy the protected group of Gazan Palestinians.

Israel will likely try to argue that the statements of its agents were made in relation to the threat posed by Hamas, and so they should be understood strictly in the context of the ongoing armed conflict. (This argument was made by Judge Ad Hoc Barak in his Separate Opinion at paras [36]-[37].)

Secondly, South Africa may try to advance an argument similar to Bosnia in that the pattern of crimes being committed by Israel should be treated as one single crime of genocide. (Bosnia Genocide, at para [370], [373].) However, the Court was not persuaded that the crimes against humanity committed during the Bosnian war could be read as one single act of genocide. The Court held that specific intent must be ‘…convincingly shown by reference to particular circumstances’. (at para [373].) Thus, the Court rejected the “shotgun approach” of Bosnia, and so if South Africa decides to advance a similar argument, it will likely be rejected too.

To conclude, South Africa will have a difficult time given the legally strict definition of genocide and the Court’s limited jurisdiction. There is an expectation that the Court finds Israel responsible, but the provisional measures stage showed the Court’s skepticism regarding the development of the South African accusation into the merit stage. However, the question remains: will this ultimately contribute to the protection of the Palestinians in Gaza and develop the law of genocide after the Bosnia case?