- 10 -
Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian Arab Republic), Provisional Measures, Order of 16 November 2023, paras. 13 and 83).
6. Eighth and ninth measures
31. With respect to the eighth and ninth requested measures, as previously noted by the Court:
“the question of their link with the rights for which [the Applicant] seeks protection does not arise, in so far as such measures would be directed at preventing any action which may aggravate or extend the existing dispute or render it more difficult to resolve, and at providing information on the compliance by the Parties with any specific provisional measure indicated by the Court”.
As previously observed, this case is complicated by the fact that in the context of an ongoing war with Hamas, which is not a party to these proceedings, it would be unrealistic to put limitations upon one of the belligerent parties but not the other. Israel would justifiably assert its right to defend itself from Hamas, which would most probably “aggravate the situation in Gaza”. For all the above reasons, I am of the view that the provisional measures requested by South Africa do not appear to have a link with South Africa’s asserted rights, and that this criterion for the indication of provisional measures is also not met.
32. In conclusion, I am not convinced that the rights asserted by South Africa are plausible under the Genocide Convention, in so far as the acts complained of by the Applicant do not appear to fall within the scope of that Convention. While those acts may amount to grave violations of IHL, they are prima facie, not accompanied by the necessary genocidal intent. I also am of the view that the provisional measures requested by South Africa and not linked to the asserted rights. However, I would also like to express my opinion regarding the provisional measures actually indicated by the Court, which in my view are also unwarranted for the reasons stated in this dissenting opinion.
V. The provisional measures indicated by the Court
are not warranted
33. In my view, the First measure obligating Israel to “take all measures within its power to prevent the commission of all acts within the scope of Article II of [the Genocide] Convention” effectively mirrors the obligation already incumbent upon Israel under Articles I and II of the Genocide Convention and is therefore redundant. The Second measure obligating Israel to ensure “with immediate effect that its military does not commit any acts described in point 1 above” also seems redundant as it is either already covered under the first measure or is a mirror of the obligation already incumbent upon Israel under Articles I and II of the Genocide Convention. The Third measure obligating Israel to “take all measures within its power to prevent and punish the direct and public incitement to commit genocide” also mirrors the obligation already incumbent upon Israel under Articles I and III of the Genocide Convention and is therefore redundant. The Fourth measure obligating Israel to “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” has no link with any of the rights purportedly claimed under the Genocide Convention. In other words, under that Convention, a State party has no duty to provide or to enable the provision of, humanitarian assistance, as such. There may be an equivalent duty under IHL but not the Genocide Convention. Besides, there is evidence before the Court that the provision of humanitarian assistance is already taking place with the involvement of Israel and other international organizations, notwithstanding the continuing military operation. The evidence also
