The minority judgement:
I am not convinced that all the above criteria for the indication of provisional measures have been met in the present case. In particular, South Africa has not demonstrated, even on a prima facie basis, that the acts allegedly committed by Israel, and of which the Applicant complains, were committed with the necessary genocidal intent and that, as a result, they are capable of falling within the scope of the Genocide Convention. Similarly, when it comes to the rights that the Applicant asserts and for which South Africa seeks protection through the indication of provisional measures, there is no indication that the acts allegedly committed by Israel were accompanied by a genocidal intent and that, as a result, the rights asserted by the Applicant are plausible under the Genocide Convention. What distinguishes the crime of genocide from other grave violations of international human rights law (including those enumerated in Article II, paragraphs (a) to (d), of the Genocide Convention) is the existence of the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. Accordingly, the acts complained of by South Africa, as well as the rights correlated to those acts, can only be capable of “falling within the scope of the said Convention” if a genocidal intent is present, otherwise such acts simply constitute grave violations of international humanitarian law and not genocide as such.
Majority judgement:
The Court recalls that, in accordance with Article I of the Convention, all States parties thereto have undertaken “to prevent and to punish” the crime of genocide. Article II provides that
“genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group”.
42. Pursuant to Article III of the Genocide Convention, the following acts are also prohibited by the Convention: conspiracy to commit genocide (Article III, para. (b)), direct and public incitement to commit genocide (Article III, para. (c)), attempt to commit genocide (Article III, para. (d)) and complicity in genocide (Article III, para. (e)).
43. The provisions of the Convention are intended to protect the members of a national, ethnical, racial or religious group from acts of genocide or any other punishable acts enumerated in Article III. The Court considers that there is a correlation between the rights of members of groups protected under the Genocide Convention, the obligations incumbent on States parties thereto, and the right of any State party to seek compliance therewith by another State party (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 20, para. 52).
Point out the main issue discussed in the minority and majority judgements above and compare them
The main issue discussed in both the minority and majority judgements is whether the acts allegedly committed by Israel, as claimed by South Africa, constitute genocide under the Genocide Convention.
The minority judgement argues that South Africa has not demonstrated that the alleged acts were committed with genocidal intent, which is a necessary element for an act to be considered genocide under the Convention. The minority judge emphasizes that the presence of genocidal intent is what distinguishes the crime of genocide from other grave violations of international human rights law, and without such intent, the acts in question would only constitute violations of international humanitarian law but not genocide.
On the other hand, the majority judgement discusses the definition of genocide under the Genocide Convention, which includes acts committed with the intent to destroy a national, ethnical, racial, or religious group. The majority judge emphasizes that there is a correlation between the rights of protected groups under the Convention, the obligations of States parties, and the right of any State party to seek compliance with the Convention by another State party. The majority judgement appears to suggest that the alleged acts by Israel, as claimed by South Africa, could potentially fall under the scope of the Genocide Convention based on the definition and obligations outlined in the Convention.
To summarize, the main difference between the two judgements lies in the interpretation of whether the alleged acts by Israel meet the criteria of genocide under the Genocide Convention, specifically in terms of the presence of genocidal intent. The minority judgement is more skeptical of this, while the majority judgement seems more inclined to consider the possibility.