Page:South Africa v. Israel (Order of 26 January 2024).pdf/40

 when removed from the requirement of a genocidal intent, merely amounts to a requirement for Israel to abide by IHL, rather than by its obligations under the Genocide Convention. Similarly, the Fifth measure, which requires Israel to refrain from deliberately inflicting on Palestinians in Gaza conditions of life calculated to bring about their destruction in whole or in part, outside the context of the requirement of a genocidal intent, is tantamount to requiring Israel to comply with its obligations under IHL, rather than under the Genocide Convention. Thus, while the expulsion and forced displacement of Palestinians in Gaza from their homes could amount to violations of IHL, the Court has previously determined in the Bosnia Genocide case that such conduct does not, as such, constitute genocide. The Court explained that

"“[n]either the intent, as a matter of policy, to render an area ‘ethnically homogeneous’, nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is ‘to destroy, in whole or in part’ a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 123, para. 190)."

However, such forced displacement, or other forms of “ethnic cleansing” may constitute genocide if intended to bring about the physical destruction of the group.

28. Similarly, the deprivation of necessary humanitarian supplies would only constitute genocide if taken with the requisite special intent. As discussed above, I do not consider that such special intent exists in this case. Therefore, such a measure is not warranted. The third component of the fifth measure refers to “the destruction of Palestinian life in Gaza”. This requested measure is extremely vague and would appear to essentially fall within the requirement for Israel to refrain from deliberately inflicting conditions of life calculated to bring about the physical destruction of the Palestinian population of Gaza. It is therefore unclear what would be accomplished by separately indicating this measure. Accordingly, the Fourth and Fifth measures appear not to be linked to the rights asserted by the Applicant under the Genocide Convention.

4. Sixth measure

29. The sixth measure is written in such a way that it simply repeats the prohibitions mentioned in the Fourth and Fifth measures and is therefore not linked to rights asserted by South Africa.

5. Seventh measure

30. The seventh requested measure relates to the preservation of evidence. Although the Court found the existence of such a link with respect to a similar measure requested and indicated in Gambia v. Myanmar (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. 24, para. 61), in the present case there is no evidentiary basis for concluding that Israel is engaged in the deliberate destruction of evidence relating to genocide. Moreover, to the extent the requested measure concerns the requirement that Israel allow fact-finding missions and other bodies access to Gaza, it would appear to go beyond Israel’s obligations under the Genocide Convention. As part of its duties to the Court and to South Africa, Israel may only be required to preserve evidence under its control. However, a requirement to allow access to Gaza by third parties does not appear linked with South Africa’s asserted rights. Notably, the Court rejected a similar request for access by independent monitoring mechanisms made by Canada and the Netherlands in