Page:South Africa v. Israel (Order of 26 January 2024).pdf/16

 South Africa stresses that any stated intention by the Respondent to destroy Hamas does not preclude genocidal intent by Israel towards the whole or part of the Palestinian people in Gaza.

39. Israel states that, at the provisional measures stage, the Court must establish that the rights claimed by the parties in a case are plausible, but “[s]imply declaring that claimed rights are plausible is insufficient”. According to the Respondent, the Court has also to consider the claims of fact in the relevant context, including the question of the possible breach of the rights claimed.

40. Israel submits that the appropriate legal framework for the conflict in Gaza is that of international humanitarian law and not the Genocide Convention. It argues that, in situations of urban warfare, civilian casualties may be an unintended consequence of lawful use of force against military objects, and do not constitute genocidal acts. Israel considers that South Africa has misrepresented the facts on the ground and observes that its efforts to mitigate harm when conducting operations and to alleviate hardship and suffering through humanitarian activities in Gaza serve to dispel—or at the very least, militate against—any allegation of genocidal intent. According to the Respondent, the statements of Israeli officials presented by South Africa are “misleading at best” and “not in conformity with government policy”. Israel also called attention to its Attorney General’s recent announcement that “[a]ny statement calling, inter alia, for intentional harm to civilians … may amount to a criminal offense, including the offense of incitement” and that “[c]urrently, several such cases are being examined by Israeli law enforcement authorities”. In Israel’s view, neither those statements nor its pattern of conduct in the Gaza Strip give rise to a “plausible inference” of genocidal intent. In any event, Israel contends, since the purpose of provisional measures is to preserve the rights of both parties, the Court must, in the present case, consider and “balance” the respective rights of South Africa and Israel. The Respondent emphasizes that it bears the responsibility to protect its citizens, including those captured and held hostage as a result of the attack that took place on 7 October 2023. As a consequence, it claims that its right to self-defence is critical to any evaluation of the present situation.

41. 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;