The majority judgement:
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. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention.The Court has already found (see paragraph 54 above) that at least some of the rights asserted by South Africa under the Genocide Convention are plausible. The Court considers that, by their very nature, at least some of the provisional measures sought by South Africa are aimed at preserving the plausible rights it asserts on the basis of the Genocide Convention in the present case, namely the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts mentioned in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention. Therefore, a link exists between the rights claimed by South Africa that the Court has found to be plausible, and at least some of the provisional measures requested.
Minority judgement:
In sum, I am not convinced that the acts complained of by the Applicant are capable of falling within the scope of the Genocide Convention, in particular because it has not been shown, even on a prima facie basis, that Israel’s conduct in Gaza is accompanied by the necessary genocidal intent. Furthermore, the rights asserted by South Africa are not plausible and the Court should not order the provisional measures requested. But in light of the Court’s Order, I will proceed to consider the other criteria required for the indication of provisional measures. This brings me to another criterion which I also find has not been met, namely that there is no link between the rights asserted by South Africa and the provisional measures sought.
The next issue is the link between the asserted rights and the measures requested. South Africa has requested the Court to indicate nine types of measures: The requested measures can be divided into several categories.
1. First and second measures
25. The first and second requested measures concern Israel’s ongoing military operations in Gaza. They would not merely require Israel to cease all alleged acts of genocide under Article II and III of the Convention ⎯ but would require the suspension of all military operations in Gaza, regardless of whether Hamas, an organization not party to these proceedings, continues to attack Israel or continues to hold Israeli hostages. In this respect, Israel would be required to unilaterally cease hostilities, a prospect I consider unrealistic. These two requested measures appear overly broad and are not clearly linked with the rights asserted by South Africa. Israel is currently engaged in an armed conflict with Hamas in response to the Hamas attack on Israeli military and civilian targets on 7 October 2023. Israeli military operations that target members of Hamas and other armed groups operating in Gaza — as opposed to conduct intended to cause harm to the civilian populace of Gaza ⎯ would not appear to fall within the scope of Israel’s obligations under the Genocide Convention. This is particularly the case for Israeli military operations that comply with international humanitarian law. Accordingly, the first and second measures do not appear to have a sufficient link with the asserted rights. A rejection of the first and second requested measures would be consistent with the Court’s approach in Bosnia v. Serbia and The Gambia v. Myanmar, where the Court indicated provisional measures but, in doing so, did not bar either Serbia or Myanmar from continuing their military operations more generally (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 24, para. 52; 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. 30, para. 86). The measures indicated were restricted to the commission of acts of genocide.
2. Third measure
26. Although the Applicant requests this measure to apply to both Parties, it is not clear how South Africa, which is not a party to the conflict in Gaza, would contribute to preserving the rights of Palestinians in Gaza, much less “prevent genocide”. In reality this measure would apply only to Israel. That said, to require Israel to “take all reasonable measures within their powers to prevent genocide” in Gaza would simply be to repeat the obligation already incumbent upon Israel and any other State party under the Genocide Convention. This measure appears to be redundant.
3. Fourth and fifth measures
27. The fourth requested measure requires Israel to refrain from specific actions that South Africa considers to be linked with its obligation to desist from committing any of the acts referred to in Article II, paragraphs (a) to (d) of the Convention. In my view, this measure, like the first and second, in effect requires Israel to unilaterally stop hostilities with Hamas, which is the only way of guaranteeing that none of the acts stipulated take place. However, as previously stated, this measure
Point out the main issues and compare the majority judgement and the minorirty judgement
The main issues in the majority and minority judgements revolve around the plausibility of the rights asserted by South Africa under the Genocide Convention and the link between those rights and the provisional measures requested.
In the majority judgement, it is held that at least some of the rights claimed by South Africa, specifically the right of the Palestinians in Gaza to be protected from acts of genocide, are plausible. The majority also finds a link between the rights claimed and the provisional measures requested, as they are aimed at preserving the plausible rights asserted by South Africa under the Genocide Convention.
In contrast, the minority judgement disagrees with the plausibility of the rights asserted by South Africa under the Genocide Convention, as it is not convinced that Israel's conduct in Gaza is accompanied by genocidal intent. The minority also argues that the provisional measures requested do not have a sufficient link with the asserted rights, as they are broad and unrealistic, and may not necessarily prevent acts of genocide.
Overall, the main difference between the majority and minority judgements lies in their assessment of the plausibility of the rights asserted by South Africa and the effectiveness of the provisional measures requested in preserving those rights. The majority finds the rights plausible and sees a link between them and the measures, while the minority questions the plausibility of the rights and the practicality of the measures.