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The reasoning of the court not to halt military operations come from the intent side of the case, indicating that Israel is doing (enough) things to imo obfuscate. Israel's self-defense claim has worked and genocide accusations are just too much for the Jewish people.
https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-sum-01-00-en.pdf
Separate opinion of Judge ad hoc Barak
1. In his opinion Judge ad hoc Barak explains that the Court rejected South Africa’s main
contention, which concerns the suspension of the military operations in the Gaza Strip. Instead, the
Court adopted measures that recall Israel’s existing obligations under the Genocide Convention. In
his view, the Court has reaffirmed Israel’s right to defend its citizens and emphasized the importance
of providing humanitarian aid to the population of Gaza. Judge ad hoc Barak states that the
provisional measures indicated by the Court are of a significantly narrower scope than those
requested by South Africa.
2. In the present case, the Court has emphasized that “all parties to the conflict in the Gaza
Strip are bound by international humanitarian law”, which includes Hamas. The Court has also stated
that it “is gravely concerned about the fate of the hostages abducted during the attack on Israel on
7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate
and unconditional release”.
3. Judge ad hoc Barak recalls that the Genocide Convention holds a very special place in the
heart and history of the Jewish people, both within and beyond the State of Israel. Through an
autobiographical remark, he explains that genocide is more than just a word for him; it represents
calculated destruction and human behaviour at its very worst. It is the gravest possible accusation
and is deeply intertwined with his life experience.
4. According to Judge ad hoc Barak, Israel is a democracy with a strong legal system and an
independent judicial system. In his view, whenever there is tension between national security and
human rights, the former must be attained without compromising the protection of the latter. He
further explains that international law is an integral part of the conduct of the Israeli State and army,
and that the holdings of the Israeli Supreme Court demonstrate a commitment to the rule of law and
human life.
Completely ignoring the apartheid system? Military courts, 99% conviction rates, administrative detention, no access to legal representation. Justice really is blind.
5. With regard to the Court’s prima facie jurisdiction, Judge ad hoc Barak is doubtful whether
South Africa brought this dispute in good faith. After South Africa sent a Note Verbale to Israel on
21 December 2023, concerning the situation in Gaza, Israel replied with an offer to engage in
consultations at the earliest possible opportunity. South Africa, instead of accepting this offer, which
could have led to fruitful diplomatic talks, decided to institute proceedings against Israel before this
Court. He regrets that Israel’s attempt to open a dialogue was met with the filing of an application.
Another argument Israel brought, but only to delay the urgent matter. The court itself notes the urgency yet fails to act and now uses the urgency reason against South Africa.
6. In the view of Judge ad hoc Barak, the present case involves an additional difficulty because
the other belligerent in the armed conflict, Hamas, is not a party to the present proceedings. While
this does not prevent the Court from exercising its jurisdiction, it is an essential matter to be
considered when determining the appropriate measures or remedies in this case.
7. Judge ad hoc Barak considers that the Court failed to give a complete account of the
immediate context in which the present case came before it. He recalls that on 7 October 2023, over
3,000 Hamas terrorists invaded Israeli territory by land, air and sea. He further recalls that over
1,200 innocent civilians, including infants and the elderly, were murdered.
Is the court seriously using Oct 7 as the starting point. South Africa started by explaining the conflict has been going on much longer.
Judge ad hoc Barak also explains that Hamas places its military apparatus within and below
civilian infrastructure to immunize it, intentionally putting its own population at risk. Furthermore,
he refers to the fate of the hostages, an agony which has been ongoing for over 100 days, and the
deaths and destruction taking place in Gaza.
8. According to Judge ad hoc Barak, the appropriate legal framework for analysing the
situation in Gaza is international humanitarian law, and not the Genocide Convention.
Basically dismissing themselves, let someone else deal with it
9. Regarding the Genocide Convention, Judge ad hoc Barak explains that central to the crime
of genocide is the element of intent, namely the intent to destroy, in whole or in part, a national,
ethnic, racial, or religious group as such. In his view, this intent is not present. Not even under the
standard of plausibility required for the indication of provisional measures. For this reason,
Judge ad hoc Barak disagrees with the Court’s approach regarding the plausibility of rights,
comparing the present case with Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (The Gambia v. Myanmar). In his view, the evidence presented by South
Africa is not comparable to that available to the Court in the Gambia case. He recalls that Israel
argued that it has adopted several measures to minimize the impact of hostilities on civilians. In his
view, it is surprising that the Court took note of Israel’s statements explaining the steps it has taken
to alleviate the conditions faced by the population in Gaza, but then completely failed to draw
conclusions from these statements when examining the existence of intent. It is even more surprising
that the Court did not view any of these measures and statements as sufficient to rule out the existence
of a plausible intent to commit genocide
All the public statements from officials are not enough to prove intent. The evidence on the ground is not enough to prove intent. The evidence of starving an entire population is not enough to prove intent. The inadequate measures to protect civilians and the trickle of aid is enough to disprove intent.
10. Judge ad hoc Barak also recalls that the Court has not made any findings with regard to
South Africa’s claims under the Genocide Convention. The conclusions reached by the Court in this
preliminary stage do not prejudge in any way the claims brought by South Africa, which in his view,
remain wholly unproven.
