ICJ’s Patchy History: Why South Africa’s Case Against Israel May Linger On

Why in News?

• The ongoing legal dispute between South Africa (SA) and Israel at the International Court of Justice (ICJ) revolves around allegations of genocide and violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
• Amid these recent developments it is important to delve into the contrasting perspectives presented by the two nations and the complexities surrounding the application of international law to the Israeli-Palestinian conflict.

South Africa’s Allegations Against Israel

• Assertion of Israel’s Genocidal Intent
  • South Africa's allegations against Israel at the ICJ are centred on the assertion that Israel has committed genocidal acts against the Palestinian people, particularly in the Gaza Strip.
  • South Africa contends that Israel's actions are driven by a genocidal intent, seeking the destruction of a substantial part of the Palestinian national, racial, and ethnic group.
  • SA has placed specific emphasis on events in the Gaza Strip, where South Africa alleges that Israel intentionally directs attacks against the civilian population.
• Violations of the Genocide Convention
  • South Africa explicitly invokes the Genocide Convention of 1948, accusing Israel of repeatedly violating its provisions.
  • The allegations encompass not only direct military actions but also condemn Israel for adopting and condoning genocidal acts, creating a comprehensive indictment of Israel's conduct.
• Intentional Civilian Targeting and Destroying Crucial Infrastructure
  • South Africa accuses Israel of intentionally targeting civilians, highlighting instances where civilian populations have been subjected to harm during military operations.
  • The allegations extend beyond casualties to include the deliberate destruction of infrastructure vital to the cultural, educational, and healthcare aspects of Palestinian society.

Israel’s Defence Against South Africa’s Allegations

• Israel Invoked the Historical Context and Moral Obligation
  • Israel opens its statement by invoking the collective memory of the Holocaust, highlighting the systematic murder of six million Jews during World War II.
  • The creation of the state of Israel was partly a response to the horrors of the Holocaust and a commitment to ensuring that such atrocities would never be repeated.
  • Israel contends that the phrase ‘Never Again’ signifies the nation's highest moral obligation to prevent genocide and protect its citizens from existential threats.
• Israel’s Emphasis on Commitment to the Genocide Convention
  • Israel emphasises its early ratification of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, without reservation.
  • It underscores its commitment to the Convention's principles, both domestically and internationally.
  • The defence argues that Israel's proactive incorporation of the Convention's provisions into its domestic legislation reinforces its dedication to preventing and punishing acts of genocide.
• Israel Highlights the Complex Nature of Armed Conflict in Gaza
  • Israel acknowledges the tragic and heartbreaking civilian suffering in the conflict, describing the harsh realities of the hostilities.
  • It points to the challenges faced by civilians, attributing them to Hamas's reprehensible strategy of maximising harm to both Israelis and Palestinians.
  • The defence contends that the Genocide Convention was not designed to address the civilian impact of hostilities but rather to address acts of the most exceptional severity.
• Israel Has Asserted the Right to Self-Defence
  • The defence emphasises the right to self-defence in the face of terror attacks, arguing that self-defensive actions are rarely available even when faced with attacks disrespecting life and the law.
  • Israel highlights specific incidents, such as the targeting of Israeli civilians, the maiming of thousands, and the abduction of hostages, to illustrate the challenges it faces in protecting its citizens.
• Israel Has Countered Weak Data Collection and Analysis by SA
  • Israel challenges South Africa's allegations by pointing out weaknesses in data collection and analysis.
  • It questions the accuracy of casualty figures and the distinction between civilians and militants in conflict zones.
  • The defence argues that the court is not provided with crucial information about the number of casualties caused by Hamas actions, making it difficult to assess the true nature of the conflict.
• Israel Has Accused SA of Distorting Genocide Terminology
  • South Africa is accused by Israel of attempting to distort the term genocide, with the claim that such allegations distort the unique force and special meaning of the word.
  • Israel argues that the use of the term genocide should be reserved for situations that genuinely meet the criteria laid out in the Genocide Convention.

Complexities of Legal Proceedings at ICJ

• A Lengthy Process
  • Several months may be required to decide preliminary jurisdictional issues, including whether a dispute under the Genocide Convention exists between South Africa and Israel.
  • The lengthy process involves various stages, such as gathering evidence, presenting legal arguments, and addressing procedural matters.
  • For instance, the Bosnia case took 14 years to reach a resolution and Gambia v Myanmar that concerns genocide is still being heard.
• The Complex Process of Determining Criminal Genocidal Intent
  • The legal battle extends beyond jurisdictional matters to the core issue of whether Israel had criminal genocidal intent.
  • This determination, as seen in the Bosnia case, is a complex process that involves a high standard of proof.
  • The ICJ is tasked with scrutinising evidence and legal arguments to establish whether the actions of Israel meet the criteria outlined in the Genocide Convention.
• No Rule Establishing the Proof of Genocidal Intent
  • ICJ’s verdict in 2007 pertained to the Srebrenica July 1995 genocide was about the killing of more than 8,000 Bosniak Muslim men and boys in and around the town during the Bosnian War.
  • The massacre was conducted largely by the Bosnian Serb Army of Republika Srpska (VRS) under the command of Ratko Mladic.
  • He was later indicted by the Intentional Criminal Court (ICC), thus establishing a high synergy between ICC and ICJ.
  • Yet, there is no rule establishing proof of genocidal intent, except that a very high standard is required as the court considers each case.
• Weak Provisional Measures
  • Both SA and Israel are rightly seeking provisional measures until the case is decided.
  • Unless the ICJ innovates jurisprudence on the matter, the repository of international law dictates a ceasefire and the systemic flow of humanitarian relief.
  • However, the experience in this regard is not a good guide. Russia challenged the ICJ when ceasefire directions in the Ukraine war were ordered.
  • As regards enforcement, a single veto by any one of the five permanent members of the UN Security Council may result in non-compliance with the ICJ directives.

Conclusion

• The legal battle between SA and Israel at the ICJ underscores the complexities of applying international law to conflicts with deep historical and geopolitical roots.
• The case further highlights the contrasting narratives, challenges in data analysis, and the extended legal processes that characterise such high-stakes international disputes.
• The outcome remains uncertain, with potential implications for the interpretation and enforcement of international law in conflicts of this nature.

Q1) What is the international Court of Justice?

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It was established in 1945 and is headquartered in The Hague, Netherlands. The ICJ's primary function is to settle legal disputes between states and to provide advisory opinions on legal questions referred to it by the UN General Assembly, the UN Security Council, and other specialised agencies and international bodies.

Q2) What is the 1948 Genocide Convention? 

The 1948 Genocide Convention, officially known as the Convention on the Prevention and Punishment of the Crime of Genocide, is an international treaty adopted by the United Nations General Assembly on December 9, 1948. It entered into force on January 12, 1951. The primary purpose of the Genocide Convention is to prevent and punish the crime of genocide.

Source: The Indian Express