Page:South Africa v. Israel (Order of 26 January 2024).pdf/33



3. 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”.

4. Furthermore, I am also strongly of the view that the controversy or dispute between the State of Israel and the people of Palestine is essentially and historically a political or territorial (and, I dare say, ideological) one. It calls not only for a diplomatic or negotiated settlement, but also for the implementation in good faith of all relevant Security Council resolutions by all parties concerned, with a view to finding a permanent solution whereby the Israeli and Palestinian peoples can peacefully coexist. It is my considered opinion that the dispute or controversy is not a legal one calling for judicial settlement by the International Court of Justice. Unfortunately, the failure, reluctance or inability of States to resolve political controversies such as this one through effective diplomacy or negotiations may sometimes lead them to resort to a pretextual invocation of treaties like the Genocide Convention, in a desperate bid to force a case into the context of such a treaty, in order to foster its judicial settlement: rather like the proverbial “Cinderella’s glass slipper”. In my view, the present case falls in this category, and it is precisely for this, and other reasons articulated in this dissenting opinion, that I have voted against the provisional measures indicated by the Court in operative paragraph 86 of this Order. An appreciation of the historical controversy between the State of Israel and the people of Palestine is a necessary prerequisite to appreciating the context in which the Court is seised with the present case.

5. The United Nations has been heavily involved in the Israeli-Palestinian conflict throughout its history. In 1947, only two years after the founding of the United Nations, the General Assembly recommended a plan of partition regarding the government of the Mandate of Palestine. That plan provided for the creation of two independent States—one Jewish and one Arab—in recognition of the dual rights of self-determination by the Jewish and Arab inhabitants of the land (General Assembly resolution 181 (II) of 29 November 1947). This laid the foundation for the creation of the State of Israel in May 1948. Unfortunately, the rejection of the partition plan by certain Arab leaders and the outbreak of war in 1948 prevented the realization of the laudable goal of two States for two peoples. Since that time, and in particular since the Israeli seizure of the West Bank and Gaza Strip in the 1967 Arab-Israeli war, the United Nations has remained seised of the conflict.

6. In 1967, the Security Council in its resolution 242 affirmed that “the establishment of a just and lasting peace in the Middle East” required the fulfilment of the two interdependent conditions of