Doctor Christopher Staker told the ICJ that the immediate, provisional measures South Africa asked for to prevent possible genocide in Gaza are not warranted, are not in keeping with precedents set by the court, and are unworkable in the context of the Hamas-Israel war.
The provisional measures requested by South Africa are unwarranted and prejudicial
Introduction
Madam President, Mr Vice-President, Members of the Court, it is an honour to appear before you again and to represent the State of Israel.
You have now been addressed on why the conditions for provisional measures are not met. That being so, there is no need to examine the nine particular measures that South Africa requests.
Nonetheless, for completeness, I will address each in turn and show that their terms are unwarranted in any event. They go beyond what is necessary to protect rights on an interim basis and therefore also have no link with the rights sought to be protected.
The first and second requested provisional measures
I start with the first and second requested measures.
These would require immediate suspension of Israel’s military operations in Gaza.
This request is frankly astonishing. A request is made by a State not party to an ongoing conflict, for provisional measures requiring unilateral suspension of military operations by one party to the conflict only, leaving the other party free to continue attacks, which it has a stated intention to do.
South Africa cannot argue that similar measures were granted in the Russia Genocide case. That case was fundamentally different.
In the Russia case, the legality of the military operation itself was in issue by reference to the Genocide Convention. Russia had claimed that its military operation was to prevent and punish genocide being committed in Ukraine. The Court found it doubtful that the Genocide Convention authorises a unilateral use of force in the territory of another State and plausible that Ukraine had a right not to be subjected to military operations by Russia for that purpose. The result: provisional measures could protect a plausible right not to be subjected to military operations.
READ | IN FULL: Omri Sender tells the ICJ it is Israel that faces irreversible harm from SA’s Gaza action
In this case, Israel does not rely on the Genocide Convention or prevention of genocide to justify its operations. The lawfulness of the operations themselves does not involve any interpretation, application or fulfilment of the Convention over which the Court has jurisdiction. As jurisdiction in this case is based solely on Article IX of the Convention, the Court cannot find that South Africa or Palestinians in Gaza have a plausible right of the kind in the Russia case.
Article 41 of the Statute empowers only such provisional measures as “the circumstances… require”, “to preserve the respective rights of either party”. In the Russia case, a suspension of military operations might have been necessary to preserve a right not to be subjected to military operations. But in this case, the right in issue is South Africa’s claimed right to ensure observance of the Genocide Convention. It is absurd to suggest that the only way to ensure observance of the Genocide Convention in a military operation is to prevent the operation from being conducted at all, in order, according to South Africa, “to secure the humanitarian response and avoid yet more unnecessary death and destruction”. That goes beyond preventing genocide.
South Africa appears to argue that the military operations as such are genocidal. But how has South Africa established a plausible claim that this is so? Ms Hassim argued only that it is plausible that “at least some, if not all, of these [alleged] acts fall within the Convention’s provisions”. How does “at least some… acts” turn into “the military operations as such”? The pictures shown yesterday of various individual incidents, whatever they may or may not say about those incidents, are not evidence of the intent of the military operations as a whole. Professor Shaw has addressed you on why the statements of holders of official positions relied on by South Africa do not establish a plausible claim of genocidal intent. The inevitable fatalities and human suffering of any conflict is not of itself a “pattern of conduct” that plausibly shows genocidal intent.
These provisional measures are therefore not within the Court’s power under Article 41 of the Statute. They go well beyond anything required to preserve the specific rights in issue, namely the observance of the Convention in military operations. They seek instead to shut down the military operations themselves.
The requested measures seek to reverse the Bosnia case. When provisional measures were ordered in that case, the armed conflict was still in progress. The allegations in that case were similar to those made in this case. Bosnia and Herzegovina specifically requested a provisional measure requiring Yugoslavia to “cease and desist from any and all types of military or paramilitary activities . . . against the People, State and Government of Bosnia and Herzegovina”. But the Court did not grant it, even though, unlike in this case, an ongoing genocide was said to be in progress on the territory of the very State seeking provisional measures and both parties to the conflict were parties to the case. The Court said expressly that it refused because such a measure would be for the protection of a right that could not form the basis of a judgment in exercise of jurisdiction under the Genocide Convention. There is no reason to depart from that case law.
In any event, provisional measures cannot be indicated if, as in this case, they would cause irreparable prejudice to the respondent or are out of proportion with the protection that they are intended to give to the applicant.
The fact is that provisional measures impose burdens on the party to which they are addressed, in order to protect potentially non-existent rights of another party. It would be contrary to the sovereign equality of States for such burdens to be imposed without regard to their effects on the State to which they are addressed.
As Judge Abraham said in the Pulp Mills case, in a request for provisional measures, the Court is faced with conflicting rights claimed by the respective parties and “cannot avoid weighing those rights against each other”.
In the Financing of Terrorism Convention case, Judge Tomka said that the Court, when considering requests for provisional measures, “is expected to weigh and balance the respective rights of the parties”. He went on to note, citing specific examples, that this requirement has been observed in the Court’s practice.
The Court has made clear in other provisional measures Orders that it must preserve the respective rights of both parties. Its established jurisprudence is that Article 41 of the Statute “has as its object the preservation of the respective rights claimed by the parties”, that is to say, both parties. The respective rights to be preserved are thus not only the plausible but yet to be determined rights claimed by the applicant, but also the plausible and yet to be determined rights of the respondent to engage in conduct that provisional measures would restrain.
Other international dispute settlement fora also balance the interests of both parties when ordering provisional measures.
ALSO READ | IN FULL: Galit Raguan tells ICJ Hamas causes civilian suffering, while Israel tries to minimise it
Already a century ago, a Mixed Arbitral Tribunal recognised a principle that the possible injury to the addressee of provisional measures “must not be out of proportion with the advantage which the claimant hopes to derive from them”. The Institute of International Law has now recognised a general principle of law that international and national courts and tribunals may grant interim relief and, as a requirement for such measures, that the risk of injury to the applicant must outweigh the risk of injury to the respondent. This principle is also recognised by other international dispute settlement mechanisms.
Other principles applied when indicating provisional measures are that none of the parties can be put at a disadvantage, that measures should not go beyond what is necessary to achieve their end, that the measures must not cause irreparable prejudice to the rights of the respondent, and that any impression of bias must be avoided.
These principles are all aspects of the most basic and elementary duty of the Court to ensure equality between the parties. Article 41 of the Statute states that provisional measures are “to preserve the respective rights of either party”. It does not refer solely to the rights of the applicant for provisional measures.
Not to apply such principles would be absurd. Suppose that the Genocide Convention and the Court had already been in existence during World War II, and that the Allied powers were all parties to the Convention without reservation, while the Axis powers were not. Suppose that a neutral State had brought proceedings against the Allied Powers alleging breaches of the Genocide Convention in their conduct of hostilities, and requesting provisional measures requiring the Allies to cease hostilities immediately — invoking pictures of civilian fatalities and suffering in the War as a plausible claim.
Such provisional measures would have required the Allies to surrender to the Axis powers, even though the case against them might later have been held to be wholly unfounded, without any consideration by the Court of whether genocide was being committed by the Axis powers.
Provisional measures must have their limits. Could a provisional measure require a State to change its government? Or to vote in a particular way in the General Assembly? The answer must be no. Can provisional measures require a State to refrain from exercising a plausible right to defend itself? The answer must be the same.
In this case, the balancing of interests must take into account the following.
First, Hamas is considered to be a terrorist organization by Israel and other States.
Second, it is undisputed that on 7 October, Hamas committed on Israeli territory a large-scale terrorist attack. This is continuing.
Third, Israel’s right to conduct the military operations in exercise of its right to defend itself has been recognised internationally.
Fourth, Israel is committed to complying with international humanitarian law, and fifth, Israel is taking steps to alleviate the humanitarian situation. The Co-Agents and other counsel have and will address you on this.
Sixth, this is not a case where provisional measures could require both parties to a conflict to exercise mutual restraint. They would not be binding on Hamas.
Seventh, Hamas has made clear its intention to carry out continuing attacks against Israel and its citizens.
Eighth, provisional measures would deprive Israel of the ability to contend with this security threat against it. More rockets could be fired into its territory, more of its citizens could be taken hostage, raped and tortured, and further atrocities could be conducted from across the Gazan border, but provisional measures would prevent Israel from doing anything.
Ninth, provisional measures would end attempts to rescue those already taken hostage.
Tenth, suspension of military operations would give Hamas space to preserve and build its capabilities, enabling it to pose an even greater threat and to use remaining hostages as bargaining chips.
ALSO READ | IN FULL: Professor Malcolm Shaw says SA’s genocide case misrepresents the facts and is wrong in law
If granted, the result would be this. An organisation recognised internationally as terrorist has committed a terrorist atrocity in the territory of a State and a third State now seeks an order from this Court that would prevent the attacked State from responding, but which would impose no obligation on those responsible for the attack. The requested measures would not put an end to the conflict, but only to military operations by one party to the conflict. These measures would assist the other party and encourage the commission of further terrorist attacks. In this respect also, the Russia case is fundamentally distinguishable from this case.
Provisional measures should be a temporary shield, to preserve claimed but as yet unproven rights pending a decision on the merits. Instead, they are being used here as a sword, to give an advantage to one party in a conflict over another. The irreparable prejudice to Israel is obvious. So is the lack of proportionality.
Madam President, Members of the Court, Israel’s position is that there is no conceivable basis on which the first two provisional measures could be ordered.
I turn then to the third requested measure. This would require Israel to take all reasonable measures to prevent genocide.
This is analogous to the first provisional measure in both the Bosnia case and the Myanmar case.
There are two further objections to this measure
First, its wording is not confined to the current military operations in Gaza. It is expressed to apply “in relation to the Palestinian people” generally. This opens the possibility to later claims that actions by Israel having nothing to do with Gaza are in breach of this provisional measure.
While the Convention obligation to prevent genocide may not be confined to current operations in Gaza, the subject-matter of this case is. There is no justification for the provisional measure to extend beyond the claim itself.
This particular objection applies also to the fourth and seventh requested measure.
A second objection is that this third provisional measure would impose the same obligation on South Africa as well. No reason is given for this. The other requested provisional measures do not apply to South Africa. Why this one? Is South Africa saying that it might fail to comply with its obligation to prevent genocide if not compelled to do so by a provisional measure? Unlikely.
Rather, through this provisional measure, South Africa appears to seek a special mandate from the Court to act internationally in relation to Palestinian issues, on the basis that it seeks to prevent genocide. Indeed, if South Africa’s right to bring these proceedings was disputed, South Africa might argue that this provisional measure gives it the right.
However, provisional measures cannot confer special mandates on States and no justification for doing so is established in any event.
The third provisional measure should therefore not be granted.
The fourth requested provisional measure
I move on to the fourth requested measure. This would require Israel to “desist” from committing acts within the scope of Article II of the Convention.
There are fundamental objections to this measure
First, it has no counterpart in the provisional measures ordered in the Bosnia and Myanmar cases. What is the need for this special novel measure? No explanation is given.
Second, it uses the word “desist”, which implies that violations of the Convention by Israel are occurring. It seeks an implied ruling on the merits. In the Bosnia case, you declined to grant a provisional measure requested by Bosnia and Herzegovina that Yugoslavia must “cease and desist from all acts of genocide”. You should also refuse this request.
It is one thing to call on a State to comply with its obligations under the Convention. It is quite another to imply that a State has failed to do so. While provisional measures are without prejudice to the merits, such an implied finding will tarnish the reputation of the respondent State, which is not only unprincipled, but also unnecessary within the meaning of Article 41 of the Statute to protect claimed rights on an interim basis.
READ | IN FULL: Tal Becker says SA’s genocide case is a libel designed to deny Israel self defence
Third, this measure refers to “acts within the scope of Article II of the Convention”. Although an act is not within the scope of Article II unless it is committed with genocidal intent, the proposed wording leaves scope for South Africa subsequently to argue that the words mean only the acts themselves, whether committed with genocidal intent or not.
On that interpretation, the effect would be to shut down Israel’s military operation. Every killing or wounding of an opposing combatant by Israeli forces, every collateral civilian casualty, no matter how lawful under international humanitarian law, would be a breach of this provisional measure. Even security checks by Israeli forces of humanitarian aid entering Gaza, in accordance with international humanitarian law, as recognised by Security Council resolution 2720, might be argued to be a breach. The request for this measure should be rejected for the same reasons as the first and second measures.
The fifth requested provisional measure
I next address the fifth requested measure. This specifies types of acts to be regarded as “deliberately inflicting… conditions of life… calculated to bring about… physical destruction” for purposes of the fourth provisional measure.
This measure is also objectionable.
First, it is not a free-standing measure, but an elaboration of paragraph (c) of the fourth measure. If the fourth measure is not granted, then the fifth measure falls away.
Second, no analogous provision is found in the provisional measures orders in the Bosnia and Myanmar cases, and no special need for such a new measure is established.
Third, it again uses the word “desist”.
Fourth, it seeks further impermissible implied rulings on the merits. For instance, it refers to so-called “expulsion and forced displacement [of Palestinians] from their homes”. This is an apparent reference to Israel’s practice of issuing calls for civilians to temporarily evacuate areas of intense hostilities, which is in fact a measure to mitigate harm to civilians. This measure thus seeks the Court’s ruling that evacuation calls amount to “expulsion and forced displacement [of Palestinians] from their homes”. Does South Africa suggest that Israel should cease giving warnings to civilians before military operations? How would that protect the rights that South Africa claims?
Similarly, paragraph (c) of this measure seeks the Court’s ruling that damage to buildings in military operations, presumably even when lawful under international humanitarian law, amounts to “the destruction of Palestinian life in Gaza”.
Overall, paragraphs (a) to (c) of this measure – read together with paragraph (c) of the third measure – seek the Court’s ruling on the merits that the evacuation calls, the current humanitarian situation and the damage to buildings, all amount to “deliberately inflicting on the group conditions of life”, within the meaning of Article II (c) of the Convention.
The reality is that the conflict and the humanitarian situation cannot be resolved overnight. This provisional measure seems designed to ensure that Israel will be in breach of it as soon as it is made. Its sole purpose seems to be to prejudice the merits, not to preserve rights on an interim basis.
It should also not be granted.
The sixth requested provisional measure
The sixth requested measure incorporates two separate measures.
The first of these would require Israel to ensure that its military, and organisations and persons subject to its control, do not commit acts falling within Articles II or III of the Convention. It is analogous to the second provisional measure in the Bosnia and Myanmar cases respectively.
An objection to this is the reference to “any irregular armed units or individuals which may be directed, supported or otherwise influenced by [Israel]”.
This wording has simply been copied from the second provisional measure in the Bosnia and Myanmar cases. However, in those cases, the applications instituting proceedings expressly alleged the existence of irregular armed units. The reference is inappropriate in this case. There is no suggestion of forces other than the Israel Defense Forces, on whose commitment to international humanitarian law you have and will be addressed today.
The second part of the sixth provisional measure contains an obligation to punish genocide. No such provision was included in the Bosnia or Myanmar provisional measures Orders. Punishment of genocide is not something that needs to be done urgently in order to protect claimed rights on a provisional basis.
This measure should also not be granted.
The seventh requested provisional measure
The seventh provisional measure also comprises two separate measures.
The first would require Israel to take measures to prevent destruction of evidence.
The Court has indicated such a measure on two recent occasions. But it declined to do so on two other recent occasions, despite a specific request by the applicant.
In the cases where it was granted, the application for provisional measures specifically alleged that evidence was being destroyed or concealed. In this case, South Africa makes just a bare assertion that there are “serious concerns about the destruction of evidence and its effect on future investigation into crimes” and a “hampering [of] scrutiny of Israel’s actions”. South Africa appears to suggest that the effects of the military operations themselves amounts to destruction of evidence, making this yet a further provisional measure effectively seeking a suspension of military operations.
The granting of this measure would imply that there is some reason to suspect concealment of evidence, when in fact none has been identified. This again would be an unprincipled and unnecessary tarnishing of reputation.
READ | FIRST TAKE: Israel fights SA’s genocide case with law, and surprisingly little politics
The second part of this measure would require Israel not to impede access to Gaza by fact-finding missions, international mandates and other bodies.
However, it is noted, first, that access to Gaza from Egypt is under the control of Egypt.
Secondly, Israel has no obligation under international law to allow access from its territory into Gaza.
Thirdly, a provisional measure to this effect was requested by the applicant in the Myanmar case and it was not granted by the Court.
The need for this measure has not been established.
The eighth requested provisional measure
The eighth requested measure would require Israel to submit regular reports to the Court on measures taken to give effect to the provisional measures.
Provisions for such reports were made in two recent provisional measures Orders. But on four other occasions, it was refused despite being specifically requested by the applicant.
This shows that such measures are not routinely granted. They have been granted occasionally when specific action has been indicated. In Armenia v. Azerbaijan, the Court said that a report was necessary “[i]n view of the specific provisional measures it has decided to indicate, and in light of the undertakings made by the Agent of Azerbaijan”.
South Africa does not justify the inclusion of such a measure. There is no shortage of publicly available Israeli material and reports about the present situation in Gaza.
The ninth requested provisional measure
Finally, the ninth requested measure is a non-aggravation measure.
On two recent occasions, such a measure was specifically requested by the applicant, but not granted by the Court. Again, such a measure is not the norm and again, South Africa does not justify its necessity.
Provisional measures for non-aggravation have been indicated in cases where both parties have been directly involved as actors in the facts of the case and the provisional measures have always applied equally to both parties.
Thus, in Myanmar, the Court declined to grant such a measure.
An obligation of non-aggravation cannot fairly be imposed on only one party to a case, or only one party to a conflict. If the proposed measure was granted, South Africa would remain free to aggravate its claimed dispute with Israel, and Hamas would not be impeded from escalating the conflict with Israel. The only purpose of this provisional measure appears to be to prevent Israel from responding to any such escalations.
Again, there is no justification for this measure.
Conclusion
Madam President, Members of the Court, that concludes my arguments on the inappropriateness of the specific measures requested by South Africa. I thank you for your careful attention. I invite you to call on Mr Noam, Co-Agent of Israel, to conclude Israel’s arguments.