ICJ’S VERDICT IN THE SOUTH AFRICAN CASE AGAINST ISRAEL

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Context: South Africa filed a case against Israel at the International Court of Justice (ICJ) accusing it of committing genocide against Palestinians in Gaza. The ICJ issued a provisional ruling, meaning it's not a final verdict but imposes temporary measures while the case continues.

Details

• The International Court of Justice (ICJ) has issued provisional measures ordering Israel to take actions aimed at preventing acts of genocide in Gaza.
• This ruling came in response to a case brought by South Africa against Israel regarding its conflict with Hamas in the Gaza Strip. However, the ICJ did not go as far as issuing an immediate ceasefire, which was a request made by South Africa.
  • It's important to note that provisional measures are interim rulings and not the final verdict. The ICJ will need to conduct hearings on jurisdictional challenges and examine the merits of the claim before reaching a final decision.
• The provisional measures indicate that the ICJ judges find a "plausible" risk of genocide against Palestinians in Gaza. The ruling is considered binding, and non-compliance by Israel would be seen as a breach of international legal obligations. However, the ICJ lacks its own enforcement mechanism, raising questions about whether Israel will choose to abide by the ruling.

The ICJ's decision is based on the Genocide Convention, ratified by both South Africa and Israel. Any state party to the convention can bring a case against another state in the ICJ, even if not directly involved in the conflict, due to the peremptory norm of international law regarding the prohibition of genocide.

Note: India had actively participated in the formulation of the Genocide Convention and ratified it in 1959. Despite the ratification, India is yet to define genocide by law.

South Africa move against Israel

• South Africa has the legal right to bring a case against Israel at the International Court of Justice (ICJ) under the Genocide Convention.
• The principle invoked here is that the prohibition of genocide is considered a peremptory norm of international law (jus cogens), meaning that it is a fundamental and non-derogable norm that applies universally. This allows states that are not directly involved in a particular conflict but are parties to the Genocide Convention to bring cases against other states for alleged violations of the convention.
• In this case, South Africa, despite being unrelated to the conflict between Israel and Hamas in the Gaza Strip, has utilized its right under the Genocide Convention to bring the case before the ICJ.
• The ICJ has upheld South Africa's standing to sue, emphasizing that all states parties to the Genocide Convention have a common interest in ensuring the prevention, suppression, and punishment of genocide.

Basis for the ruling

• The International Court of Justice (ICJ) ordered Israel to take measures to prevent acts of genocide in Gaza but stopped short of calling for an immediate ceasefire, as requested by South Africa.
• The ICJ concluded that the standard for ordering provisional measures had been met, finding a "plausible" link between the rights sought to be protected by South Africa and the measures requested, along with a recognized risk of irreparable harm and genuine urgency.
• The Court relying on various statements from UN officials, special reports, and other international bodies regarding the catastrophic situation in Gaza, the ICJ observed that "the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible."
• Reference was also made to the President of Israel, Isaac Herzog’s remark that there were no innocent civilians in Gaza since "the entire nation" was responsible. The recognition of such statements is significant as they could establish the "genocidal intent" required to eventually arrive at a definite finding on the commission of the crime.
• Highlighting the need for emergency measures, the ICJ observed that "the catastrophic humanitarian situation in the Gaza Strip is at a serious risk of deteriorating further" before it can render a final judgment.

Provisional measures ordered by the International Court of Justice (ICJ)

• Prevention of Genocidal Acts: Israel is directed to take all measures within its power to prevent the commission of genocidal acts against Palestinians in Gaza. This includes preventing serious bodily or mental harm, killing civilians, and imposing measures intended to prevent births.
• Humanitarian Assistance: Israel is ordered to permit the entry of urgently needed basic services and humanitarian assistance into the Gaza Strip. South Africa had alleged that Israel's blockade of essential supplies had pushed Palestinians to the "brink of famine."
• Preservation of Evidence: Israel is required to preserve evidence relating to the claim. This is to ensure that crucial evidence is not lost or destroyed before the ICJ reaches a final determination on whether Israel has committed genocide.
• Compliance Report: Israel is directed to submit a report to the ICJ on all steps undertaken to abide by the measures imposed within one month of the ruling. South Africa will have the opportunity to respond to this report.
• Concern for Hostages: While no interim order was issued, the ICJ expressed grave concern about the fate of hostages abducted during Hamas' attack on October 7, 2023, and called for their immediate and unconditional release.

What next?

• The next step involves the United Nations Security Council (UNSC) meeting to discuss the ICJ's decision. Algeria has called for this meeting with the aim of giving binding effect to the ICJ's pronouncement on the provisional measures against the Israeli occupation. The UNSC has historically been divided on the Israel-Palestine conflict, with the U.S. frequently using its veto power to shield Israel from demands for a ceasefire.
• Experts suggest that a U.S. veto of an ICJ-approved decision could potentially undermine President Joe Biden's calls for other nations, including adversaries like Russia and Myanmar, to uphold the Court's rulings.
• Post the ICJ verdict, nearly a dozen Western countries, including the U.S., have suspended funding for the United Nations Relief and Works Agency for Palestine Refugees (UNRWA). The suspension is based on allegations that UNRWA staff were involved in the October 7 Hamas attacks on Israel.
  • UNRWA, established in 1948, plays a crucial role in providing education, health, and emergency aid services to about two-thirds of Gaza's 2.3 million population and has been pivotal during the war.

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