Dissenting opinion of Judge Sebutinde
In my respectful dissenting opinion the dispute between the State of Israel and the people of Palestine is essentially and historically a political one, calling for a diplomatic or negotiated settlement, and for the implementation in good faith of all relevant Security Council resolutions by all parties concerned, with a view to finding a permanent solution whereby the Israeli and Palestinian peoples can peacefully coexist—It is not a legal dispute susceptible of judicial settlement by the Court—Some of the preconditions for the indication of provisional measures have not been met—South Africa has not demonstrated, even on a prima facie basis, that the acts allegedly committed by Israel and of which the Applicant complains, were committed with the necessary genocidal intent, and that as a result, they are capable of falling within the scope of the Genocide Convention—Similarly, since the acts allegedly committed by Israel were not accompanied by a genocidal intent, the Applicant has not demonstrated that the rights it asserts and for which it seeks protection through the indication of provisional measures are plausible under the Genocide Convention—The provisional measures indicated by the Court in this Order are not warranted.
I. Introduction: context
A. Limited scope of the provisional measures Order
1. Given the unprecedented global interest and public scrutiny in this case, as can be gathered from, inter alia, media reports and global demonstrations, the reader of the present Order must be cautious not to assume or conclude that, by indicating provisional measures, the Court has already made a determination that the State of Israel (“Israel”) has actually violated its obligations under the Genocide Convention. This is certainly not the case at this stage of the proceedings, since such a finding could only be made at the stage of the examination of the merits in this case (see Order, paragraph 30). Nor must one assume that the Court has definitively determined whether the rights that the Republic of South Africa (“South Africa”) asserts, and for which the Applicant seeks protection pendente lite, actually exist. At this stage, the Court is only concerned with the preservation through the indication of provisional measures of those rights that the Court may subsequently adjudge to belong to either Party, pending its final decision in the case (see Order, paragraphs 35-36). In this regard, the Court has stated as follows:
“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, but to determine whether the circumstances require the indication of provisional measures for the protection of rights under this instrument. [The Court] cannot at this stage make definitive findings of fact, and the right of each Party to submit arguments in respect of the merits remains unaffected by the Court’s decision on the Request for the indication of provisional measures.” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, pp. 24-25, para. 66.)
2. Similarly, one should not make the mistaken assumption that the Court has already determined that it has jurisdiction to entertain South Africa’s claims on the merits or that it has already found those claims to be admissible. Both of those issues are to be determined at a later phase of the case, after South Africa and Israel have each had an opportunity to submit arguments in relation thereto (see Order, paragraph 84).
