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5. The Court is not asked, in the present phase of the proceedings, to determine whether South Africa’s allegations of genocide are well founded. At this stage, the Court may only examine whether the circumstances of the present case, as they have been presented to the Court, justify the ordering (“indication”) of provisional measures to protect rights under the Genocide Convention which are at risk of being violated before the decision on the merits is rendered. For this examination, the Court need not address many well-known and controversial questions, such as those relating to the right to self-defence and the right of self-determination of peoples, or regarding territorial status. The Court must remain conscious that the Genocide Convention is not designed to regulate armed conflicts as such, even if they are conducted with an excessive use of force and result in mass casualties.
6. The limited scope of the present phase of the proceeding requires a summary assessment by the Court of certain widely divergent claims by the Parties. It is regrettable how much the Parties talked past each other during the oral proceedings. South Africa hardly mentioned the attack of 7 October 2023 and the ensuing massacre; Israel barely mentioned the United Nations reports on the humanitarian situation in the Gaza Strip. South Africa hardly mentioned the efforts by Israel to evacuate the civilian population from areas of hostilities; Israel did not satisfactorily address highly problematic forms of speech by some of its officials, including members of its military.
7. Facing the widely divergent presentations of the Parties, the Court needs to apply the existing legal standards. The present case is not the first in which a State has asked the Court to indicate provisional measures based on the Genocide Convention. The Court has already indicated such measures more than once, including in 2020 in the case between The Gambia and Myanmar. As extraordinary as the present case may be, the Court has the means to deal with it: its own jurisprudence. The present Order applies the standards developed in that jurisprudence, without, however, identifying relevant differences between this case and previous cases before the Court and specifying the relative importance of certain factors. I therefore wish to explain why I voted in favour of the Order.
II.
8. It is important to bear in mind that “the essential characteristic of genocide”, distinguishing it from other criminal acts (e.g. crimes against humanity and war crimes), is the existence of an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”[1]. The Court has established a high threshold for the definite determination of genocidal intent at the stage of the merits. In the absence of a “general plan to this effect”, the “intent to destroy, in whole or in part, a protected group” can only be inferred from “a pattern of conduct” if this is the “only reasonable inference that can be drawn” therefrom[2].
9. At this stage of the proceedings, the Court is not called upon to determine definitively whether there have been violations of the rights under the Genocide Convention which South Africa
- ↑ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), pp. 62 and 64, paras. 132 and 138-139.
- ↑ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 67, para. 148; see also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 196-197, para. 373.
