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Why has South Africa taken Israel to the International Court of Justice?

Context- Beginning on Thursday, January 11, the International Court of Justice (ICJ) is set to conduct a two-day hearing. The purpose of this hearing is to determine if it will issue “provisional measures”, which are akin to urgent interim relief in ongoing cases in Indian courts. This is in response to a case brought forward by South Africa against Israel. South Africa alleges that Israel has breached its duties under the Genocide Convention with respect to the Palestinians in Gaza.

First, what is the International Court of Justice?

  • The International Court of Justice (ICJ), the main judicial body of the United Nations, resolves legal disputes between states according to international law. It is not a criminal court and does not try individuals, a role fulfilled by the International Criminal Court (ICC). Both courts are located in The Hague, Netherlands.
  • The ICJ can only adjudicate cases involving breaches of international law if the states involved consent to its jurisdiction.
  • In the case of the Genocide Convention, consent is given through an article that allows any party to submit disputes related to the Convention to the ICJ. Both South Africa and Israel are parties to this Convention.

And what is the Genocide Convention?

  • The Convention on the Prevention and Punishment of the Crime of Genocide, an international human rights treaty, was the first to define the crime of genocide. Adopted by the UN General Assembly on December 9, 1948, it has been in effect since January 12, 1951.
  • The Convention outlines five acts that constitute genocide, all of which must be committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.
  • These acts include killing members of a group, causing serious bodily or mental harm, inflicting conditions of life calculated to bring about their physical destruction, imposing measures intended to prevent births within a group, and forcibly transferring children of the group to another group.
  • Genocide is distinguished from war crimes, ethnic cleansing, and crimes against humanity by two elements: the physical acts and the specific intent to destroy a specific group, known as “dolus specialis”.
  • The mere commission of these acts, regardless of their extent, does not constitute genocide without this specific intent.
  • Furthermore, the commission of war crimes, ethnic cleansing, and crimes against humanity does not grant States the right to approach the ICJ, as the court does not have automatic jurisdiction over these crimes.

What is South Africa’s case against Israel?

  • South Africa claims that Israel has carried out several acts defined in the Genocide Convention, and that there is substantial and explicit evidence of the specific intent (dolus specialis) of Israeli State officials to commit, continue committing, or fail to prevent genocidal acts since October 2023.
  • South Africa argues that this, combined with the extent of killing, injury, displacement, and destruction, along with the siege, constitutes an ongoing genocide.
  • South Africa has presented nine pages of statements from high-ranking Israeli Officials, including the President, Prime Minister, and Ministers, to demonstrate the presence of specific intent.
  • Furthermore, South Africa asserts that Israel has not only failed to prevent genocide and prosecute those who publicly incite genocide, but also continues to engage in and risks further committing genocidal acts against the Palestinian people in Gaza.

So what is South Africa asking for?

  • South Africa is seeking urgent relief to prevent further harm to the rights of the Palestinian people and to avoid exacerbating the dispute. It has requested the court to order Israel to halt all military operations in Gaza, comply with the Genocide Convention, and cease actions such as forced displacement and deprivation of essential resources.
  • South Africa also wants Israel to refrain from any acts that could be construed as genocide, including public incitement, and to allow access to fact-finding missions.
  • Lastly, it has asked for Israel to report on its compliance with the court’s orders and to avoid actions that could worsen the dispute.

What will happen now?

  • South Africa’s case seems to fulfill the criteria for the court to issue a provisional measures order. The court needs to have prima facie jurisdiction, a plausible connection between the rights claimed by South Africa and the requested measures, and a risk of irreparable damage and urgency.
  • An order is expected within weeks and will be legally significant for all states party to the Genocide Convention, as it is binding on all states, despite the court’s lack of enforcement mechanisms.
  • Israel has dismissed the case as “baseless” and a “blood libel”, urging the international community to reject it. The United States, Hungary, and Guatemala have done so.
  • However, Palestine, along with the 57 Organisation of Islamic Cooperation (OIC) countries and several others including Malaysia, Turkey, Jordan, Bolivia, Venezuela, Mexico, Bangladesh, Namibia, and Nicaragua, have welcomed South Africa’s case.
  • France has declared its support for the court’s decision, while India has yet to make a statement.

How often do such cases come before the ICJ?

  • The International Court of Justice has previously heard cases under the Genocide Convention. In 2022, Ukraine lodged a case against Russia, and in 2019, the Gambia brought a case against Myanmar concerning the Rohingya.
  • The case against Myanmar marked the first instance of a state invoking the court’s jurisdiction to seek justice for genocidal acts perpetrated against citizens of another state. The court acknowledged the Gambia’s right to file the case.
  • South Africa, like the Gambia, has grounded its jurisdiction in obligations erga omnes partes. This means that as a party to the Convention, South Africa has the right to bring this case due to its collective interest in preventing genocide.

Conclusion- The case brought by South Africa against Israel at the International Court of Justice (ICJ) marks a significant moment in international law. It underscores the role of the ICJ in adjudicating disputes related to the Genocide Convention and highlights the collective responsibility of states to prevent genocide. The case also demonstrates the complexities of international law, with outcomes dependent on the consent of states, the interpretation of conventions, and the specific intent behind actions.

As the court prepares to make its decision, the world watches closely, underscoring the importance of the ICJ in maintaining global justice and human rights.

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