lördag, januari 27, 2024

What does the ICJ say about actual commission of genocide in the South Africa v Israel order on provisional measures?

The ICJ order on provisional measures announced January 26th 2024 ended up in a manner that several legal commentators predicted (for my prognosis, see this post from January 9th 2024). The order's meaning is still contested, to some extent driven by what view one has on the underlying conflict. It reminds me of the aftermath of general election debates where each side want to cast their side as the "winner". Having said that, I would argue that already by having an other state filing a complaint for genocide against oneself (Israel) there is a loss for that state. At this stage, the issuance of provisional measures, neither side got entirely what they wanted from the ICJ. 

There is a debate whether the ICJ ruled in its January 26th-order that Israel commits genocide. Going back to South Africa's application, it requested that Israel should "cease" and "desist from the commission" of genocidal acts (paras. 111 and 144). 

In its order the ICJ doesn't use any of the words "desist", "cease" or "stop". Instead the ICJ explains that "the decision given in the present proceedings in no way prejudges ... the merits themselves" (paras. 30 and 84) and it uses the phrase "prevent the commisson" (para. 86). 

The ICJ also states the following.

In the Court’s view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. (para. 54)

This vagueness in language (and opaqueness, a word such as "existence" or "risk" appears missing)  could be explained that even among the 15 judges who voted in favor of all the measures in the order, they may have different views on which rights are at risk.  

Further, the Genocide convention is not only about sanctioning violations that have already occurred, article 1 of the convention provides that the states have an obligation "to prevent and punish". While "punish" is something retrospective, "prevent" concerns potential risks in the future. This obligation of prevention is not only in relation to acts of the state itself, but also in relation to individuals who are at risk of deviating from state policy or groups pursuing their own (genocidal) policies. 

Considering that the ICJ has abstained from using words such as  "desist", "cease" or "stop" and instead uses the word "prevent" the reasonable conclusion is that the operative paragraphs of the ICJ order are concerned with the future. That is also the main purpose of provisional measures as distinct from a judgment on merits. 

This should be read together with ICJ order that Israel should "submit a report to the Court on all measures taken to give effect to this Order within one month as from the date of this Order."

As I see it, ICJ has put Israel at notice that its actions are monitored by the ICJ. As Itamar Mann has suggested one could call this "counter-genocidal governance", a suitable description of ICJ's order.