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Court concluded, with scant evidence, that “the right of the Palestinians in Gaza to be protected from acts of genocide” is plausible (Order, para. 54).
34. To understand the Court’s erroneous approach, it is important to compare the present case to the Gambia case: 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. To conclude that the asserted rights were plausible, in the Gambia case, the Court relied on two reports issued by an Independent International Fact-Finding Mission (IIFFM)[1]. These reports were based on the meticulous collection of evidence over two years, which included 400 interviews with victims and eyewitnesses, analysis of satellite imagery, photographs and videos, the cross-checking of information against credible secondary information, expert interviews and raw data[2]. The independent experts travelled to Bangladesh, Indonesia, Malaysia and Thailand to interview victims and witnesses and hold other meetings. Furthermore, the Mission’s secretariat undertook six additional field missions[3]. In its report of 12 September 2018, the IIFFM concluded that there were “reasonable grounds to conclude that serious crimes under international law ha[d] been committed”, including genocide[4]. The IIFFM also stated that “on reasonable grounds … the factors allowing the inference of genocidal intent [were] present”[5]. The IIFFM reiterated its conclusions, based on further investigations, in its second report of 8 August 2019.[6]
35. In the present case, there is no evidence comparable to that available to the Court in the Gambia case. To determine the plausibility of rights in the present case, the Court relies on four sets of facts. First, it looks at the figures for deaths, injuries and damage to infrastructure reported by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) (see Order, para. 46). Second, it relies on a statement made by the Under-Secretary-General of OCHA (see Order, para. 47), a report of the World Health Organization (see Order, para. 48), and a statement by the Commissioner-General of UNRWA (see Order, para. 49). Third, it notes the statements of three Israeli officials (see Order, para. 52). Fourth, it considers the views expressed by a group of Special Rapporteurs and the CERD Committee (see Order, para. 53).
36. Regarding the figures for death, injuries and damage to infrastructure, the Court omits to mention that such figures come from the Ministry of Health of Gaza, which is controlled by Hamas. They are not the United Nations’ figures. Furthermore, these figures do not distinguish between civilians and combatants, or between military objectives and civilian objects. It is difficult to draw any conclusions from them.
The statements by the Under-Secretary-General of OCHA, the WHO and the Commissioner-General of UNRWA are insufficient to prove plausible intent. None of these statements mention the term genocide or point to any trace of intent. They indeed describe a tragic humanitarian situation, which is the unfortunate result of an armed conflict, but there is no reference
- ↑ 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. 22, para. 55.
- ↑ United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/39/64, 12 September 2018, para. 37.
- ↑ United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/39/64, 12 September 2018, para. 37.
- ↑ See United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/39/64, 12 September 2018, paras. 83 and 84-87.
- ↑ United Nations, Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/39/CRP.2, 17 September 2018, para. 1441.
- ↑ United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/42/50, 8 August 2019, para. 18.
