Relevant facts
- Base of jurisdiction: compromissory clause in Article IX of the Convention; under Article
36(1) ICJ Statute
Prima facie jurisdiction
Rules
- Under Art. IX
- Both States are parties to the Convention, neither has entered a reservation
- Art. IX requires (i) the existence of a dispute (ii) relating to the interpretation, application,
or fulfilment of the Convention
1) Existence of a dispute
a) A dispute refers to “a disagreement on a point of law or fact, a conflict of
legal views or interests” (Mavrommatis Palestine Concessions Judgment No. 2)
b) A ‘positive opposition’ of the parties’ views must be shown (South West
Africa (Ethiopia v SA; Liberia v SA) Preliminary Objections)
c) That one party maintains the Convention applies and the other denies it is
insufficient (Allegations of Genocide (Ukraine v. Russia) Provisional Measures)
2) Scope ratione materiae
a) Must fall within the scope prescribed by Art. IX
Application
1) Existence of a dispute
a) The Court will take into account “in particular any statements or documents
exchanged between the Parties, as well as any exchanges made in multilateral
settings” whilst paying special attention to the author, intended/actual addressee,
and content
b) The existence of a dispute is an objective determination by the Court, and a matter
of substance rather than form or procedure (ibid. Ukraine v. Russia)
c) In this case, given SA’s expression of its views that Israel violated its obligations
under the Convention in various public, multilateral, and bilateral settings, whilst
Israel publicly dismissed allegations of genocide, a dispute clearly exists.
2) Material scope
a) The Court is not required to evaluate whether any actual violations occurred at this
stage in the proceedings, merely whether the alleged acts/omissions “appear to be
capable” of falling within the provisions of the Convention [30]
b) Here, at least some of the acts and omissions alleged by SA appear to meet this
standard
- Therefore, the Court concludes it has prima facie jurisdiction.
Standing
- SA’s standing has not been challenged by Israel in the present proceedings
- The obligations under the Convention are erga omnes partes, meaning any State party is
entitled to invoke the responsibility of another for alleged breach
- Therefore, the Court concludes prima facie that SA has standing
Link between plausible rights and requested measures
Plausible rights
- The Palestinians (notably in the Gaza Strip), appear to constitute a “protected group”
under Art. II
- Requirement of dolus specialis, or “specific intent to destroy in whole or in part…”
- The Court, taking into account statements and reports by UN officials and organs such as
the WHO and the Commissioner-General for UNRWA concerning the consequences and
casualties caused by the conflict in the Gaza Strip–“facts and circumstances”–concluded
that at least some of the rights claimed by SA are plausible [41]-[54]
Link
- The Court considers that “by their very nature”, some of the provisional measures
requested by SA are aimed at preserving the plausible rights it asserts, namely, the right of
Palestinians in Gaza to be protected from genocide and related prohibited acts, as well as
SA’s right to seek Israel’s compliance under the Convention
- Therefore, a link exists between the plausible rights and at least some of the measures.
Risk of irreparable prejudice and urgency
Irreparable prejudice
- Pursuant to Art. 41 ICJ Statute, the Court has the power to indicate provisional measures
where irreparable prejudice could be caused to rights which form the subject of judicial
proceedings, or where the disregard of such rights might entail irreparable consequences
(Ukraine v. Russia)
Urgency
- This power of the Court may only be exercised where there is urgency, or “real and
imminent risk” of irreparable prejudice to the rights claimed
- The condition of urgency is met where the acts in question can “occur at any moment”
before the Court issues a final judgment (ibid.)
Application
- In view of the fundamental values sought to be protected by the Convention, the plausible
rights in question are of such a nature that prejudice to them is capable of causing
irreparable harm
- The Court has regard to statements by UN officials–including by the UNSG–to conclude
that the civilian population remains “extremely vulnerable”, the “catastrophic
humanitarian situation [...] is at serious risk of deteriorating further before the Court
renders its final judgment”, and the steps taken by Israel are “insufficient” to remove the
risk of irreparable prejudice [70]-[73]
- Therefore, there is a real and imminent risk of irreparable prejudice to the plausible rights
Conclusion and measures to be adopted
- The conditions required by the Statute for it to indicate provisional measures are met
- The measures to be indicated need not be identical to those requested
- It also has the power under Art. 78 Rules of Court to request information from the parties
on any matter connected with the implementation of provisional measures
- Its Orders on provisional measures under Art. 41 ICJ Statute have binding effect and thus
create international legal obligations for the parties to which they are addressed.