South Africa’s genocide case against Israel: How will the ICJ decide?
- January 11, 2024
- Posted by: OptimizeIAS Team
- Category: DPN Topics
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South Africa’s genocide case against Israel: How will the ICJ decide?
Subject: IR
Section: International Conventions
Context:
- Israel has promised to defend itself as the World Court is set to hold public hearings in the case brought by South Africa.
More on news:
- Pretoria accuses Israel of committing genocide in contravention of the 1948 UN Genocide Convention, which both South Africa and Israel are party to.
- Countries party to the treaty have the collective right to prevent and stop the crime.
- What constitutes genocide: The killing of civilians in large numbers, especially children; the expulsion and displacement of Palestinians en masse and the destruction of their homes; the inciting statements by several Israel officials portraying Palestinians as sub-humans to be collectively punished, all constitute genocide.
- The suit also lists the blockade on food and the destruction of essential health services for pregnant women and babies as measures by Tel Aviv.
- A separate case is continuing at the International Criminal Court, a different body.
- The ICC tries individuals in criminal cases, the ICJ focuses on legal disputes between states.
- A 2019 case that The Gambia brought against Myanmar for its military crackdown on Rohingya refugees is still in trial.
- President Joan E Donoghue of the United States leads the ICJ presently alongside Vice President Kirill Gevorgian of Russia.
About International Court of Justice:
- The Court is the principal judicial organ of the United Nations.
- It was established by the United Nations Charter, which was signed in 1945 in San Francisco (United States).
- It started its functioning in April,1946.
- The seat of the Court is at the Peace Palace in The Hague (Netherlands).
- The Court’s official languages are English and French.
Composition and working of ICJ:
- The International Court of Justice is composed of 15 judges elected to nine-year terms of office by the United Nations General Assembly and the Security Council.
- Any country can propose candidates but no two judges must come from one country.
- Presently, the bench includes judges from all parts of the world including France, Slovakia, Somalia and India.
- To appoint a president and vice president, the judges hold a secret ballot.
- ICJ judges ought to be impartial and not act as extensions of their countries.
- At the preliminaries, the ICJ will determine if it has jurisdiction in the case at all.
- Jurisdiction is established when the states involved affirm that they recognise the court’s power, or if the countries are party to a treaty.
- South Africa and Israel are parties to the Genocide Convention1948.
Who may submit cases to the Court?
- Only States are eligible to appear before the Court in contentious cases.
- At present, this essentially means the 193 Member States of the United Nations.
- The Court has no jurisdiction to deal with applications from individuals, non-governmental organizations, corporations or any other private entity.
- It cannot provide them with legal advice or help them in their dealings with national authorities.
States representation to the court:
- Countries appoint teams of “Special Agents” which usually include top legal counsel or reputed law professors.
- The two teams will present their arguments to the full bench.
- All 17 judges will sit at the head of the Great Hall of Justice in the ICJ to hear the arguments on both sides.
Will other countries intervene?
- If a state intervenes because they want to show solidarity, it doesn’t add anything from a legal perspective
- This can only slow down the process and cause logistical challenges for the ICJ..
- Cases filed by multiple countries would have slowed down the case as the court would have to attend to them all.
What could a final judgment look like?
- ICJ judgements are legally binding and cannot be appealed.
- Article 94 of the United Nations Charter provides that “each Member of the United Nations undertakes to comply with the decision of [the Court] in any case to which it is a party”.
- If there is a dispute about the meaning or scope of a judgment, the only possibility is for one of the parties to make a request to the Court for an interpretation.
- If Israel does not comply, South Africa can approach the UN Security Council for enforcement.
- US being a permanent member possesses a veto power.
- The US could shield Israel from punishment, as it has done multiple times in this war.
- Since 1945, the US has vetoed 34 out of 36 UNSC draft resolutions related to the Israel-Palestine conflict.
About International Criminal Court (ICC):
- It is governed by an International treaty called ‘The Rome Statute’.
- The ICC is the world’s first permanent international criminal court.
- It investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression.
- The ICC’s 18 judges are elected by the Assembly of States Parties for their qualifications, impartiality and integrity, and serve 9-year, non-renewable terms.
- India along with US , Russia , Israel , Myanmar and China is not a party to the Rome Statute.
- India is not a member of ICC.
Difference between ICJ and ICC:
Aspects | ICJ | ICC |
Established | 1945 | 2002 |
Headquarters | The Hague, Netherlands. | The Hague, Netherlands. |
Relationship with UN | Principal judicial organ of UN | Not a part of UN |
Types of cases | Legal disputes between states and requests for advisory opinions on legal questions. | Prosecutes individuals for the most serious crimes as per Rome statute. |
Appeals | No | Yes |
Enforcement power | Relies on UNSC to uphold judgements. | None, relies on cooperation. |
GENOCIDE AT THE ICJ VERSUS GENOCIDE AT THE ICC:
ICJ:
- The ICJ can consider whether a State has committed genocide under the Genocide Convention.
- Under that Convention, genocide is defined as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.
ICC:
- The ICC, on the other hand, prosecutes genocide as a crime committed by individuals, and it also has jurisdiction over other crimes that the ICJ cannot consider, such as war crimes and crimes against humanity.
- While the definition of genocide is the same at both the ICC and ICJ, the difference is that at the ICC an atrocity does not need to meet the threshold of ‘genocide’ to be prosecuted.
- The ICC can therefore investigate a much wider array of crimes than the ICJ. However, it can only do so in situations arising in States that are party to the Rome Statute.
- Prosecutors are only permitted to open investigations into situations arising in countries that have ratified the Rome Statute.