THE MAJORITY JUDGEMENT:
3. Conclusion as to prima facie jurisdiction
31. In light of the foregoing, the Court concludes that, prima facie, it has jurisdiction pursuant to Article IX of the Genocide Convention to entertain the case.
32. Given the above conclusion, the Court considers that it cannot accede to Israel’s request that the case be removed from the General List.
III. STANDING OF SOUTH AFRICA
33. The Court notes that the Respondent did not challenge the standing of the Applicant in the present proceedings. It recalls that, in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) where Article IX of the Genocide Convention was also invoked, it observed that all the States parties to the Convention have a common interest to ensure the prevention, suppression and punishment of genocide, by committing themselves to fulfilling the obligations contained in the Convention. Such a common interest implies that the obligations in question are owed by any State party to all the other States parties to the relevant convention; they are obligations erga omnes partes, in the sense that each State party has an interest in compliance with them in any given case. The common interest in compliance with the relevant obligations under the Genocide Convention entails that any State party, without distinction, is entitled to invoke the responsibility of another State party for an alleged breach of its obligations erga omnes partes. Accordingly, the Court found that any State party to the Genocide Convention may invoke the responsibility of another State party, including through the institution of proceedings before the Court, with a view to determining the alleged failure to comply with its obligations erga omnes partes under the Convention and to bringing that failure to an end (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment, I.C.J. Reports 2022 (II), pp. 516-517, paras. 107-108 and 112).
34. The Court concludes, prima facie, that South Africa has standing to submit to it the dispute with Israel concerning alleged violations of obligations under the Genocide Convention.
MINORITY JUDGEMENT:
In its Application instituting proceedings before the Court, South Africa invoked, as a basis for the Court’s jurisdiction, Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) and Article 36, paragraph (1), of the Statute of the Court. Both South Africa and Israel are parties to the Genocide Convention, without reservation (see Order, paragraph 18). Accordingly, for the purposes of the provisional measures Order, the Court’s prima facie jurisdiction is limited to the Genocide Convention and does not extend to alleged breaches of international humanitarian law (“IHL”). Thus, while it is not inconceivable that grave violations of international humanitarian law amounting to war crimes or crimes against humanity could have been committed against the civilian populations both in Israel and in Gaza (a matter over which the Court has no jurisdiction in the present case), such grave violations do not, in and of themselves, constitute “acts of genocide” as defined in Article II of the Genocide Convention, unless it can be demonstrated that they were committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.
Point out the main issue discussed in the MAJORITY AND MINORITY judgements above and compare them
The main issue discussed in both the majority and minority judgments is the question of the Court's jurisdiction under the Genocide Convention in the case between South Africa and Israel. The majority judgment concludes that the Court has prima facie jurisdiction to entertain the case based on Article IX of the Genocide Convention, while the minority judgment argues that the Court's jurisdiction is limited to alleged violations of the Genocide Convention itself and does not extend to breaches of international humanitarian law.
The majority judgment emphasizes the common interest of all States parties to the Genocide Convention in ensuring the prevention and punishment of genocide, and argues that any State party can invoke the responsibility of another State party for alleged breaches of obligations under the Convention. On the other hand, the minority judgment focuses on the specific definition of genocide under the Genocide Convention and argues that violations of international humanitarian law, such as war crimes or crimes against humanity, do not automatically constitute acts of genocide unless the specific intent to destroy a national, ethnical, racial, or religious group can be demonstrated.
Overall, the main difference between the majority and minority judgments lies in their interpretation of the Court's jurisdiction under the Genocide Convention and the scope of the alleged violations in the case between South Africa and Israel. The majority judgment takes a broader view of the Court's jurisdiction, while the minority judgment restricts it to the specific provisions of the Genocide Convention.