13 February 2024 – The Hindu

Israel v. South Africa Case in ICJ

• Within the larger framework of international law, the notions of human rights, genocide, and war crimes are interrelated and specifically centre on safeguarding individuals and groups in times of conflict or catastrophe. Genocide and other war crimes are prevented by upholding human rights. Numerous international treaties and declarations, including the Universal Declaration of Human Rights (UDHR), uphold these rights.
• Israel was the target of legal action brought by South Africa before the International Court of Justice (ICJ). The former contended in its application that Israel’s military activities in Gaza were in violation of the Genocide Convention, an international treaty that forbids the prevention and punishment of genocide.

What is meant by genocide?

• The deliberate and organised extermination of a certain ethnic, racial, religious, or national group is defined by the UN as genocide.
• Numerous things might cause this damage, such as forced displacement, mass murder, and the imposition of unfavourable living conditions that lead to a high death toll.

Conditions:

• A genocide, according to the UN, consists of two primary components:
• Mental Element: The desire to eradicate a national, ethnic, racial, or religious group whole or in part.

Physical Element: It consists of the following acts, listed in full:

• putting group members to death.
• causing members of the group to suffer severe physical or psychological injury
• It is calculated that intentionally causing harm to the collective conditions of life will result in its physical destruction, either entirely or partially.

What is the Convention on Genocide?

About:

• The crime of genocide was first codified in international law by the Convention on the Prevention and Punishment of the Crime of Genocide.
• On December 9, 1948, the United Nations General Assembly ratified the first human rights pact.
• Following the horrors of World War II, it represented the determination of the global community to “never again.”
• The evolution of international criminal law and human rights as we know them today was greatly aided by its adoption.

Qualities:

• The Genocide Convention states that genocide is a crime that can occur during both times of peace and war.
• Numerous national and international bodies have accepted this definition of the crime of genocide, as evidenced by the 1998 Rome Statute of the International Criminal Court (ICC).
• Crucially, the Convention places a duty on State Parties to take action against those who commit acts of genocide, including passing appropriate laws and prosecuting offenders “whether they are constitutionally responsible rulers, public officials, or private individuals” (Article IV).
• This duty and the prohibition on carrying out genocide are regarded as standards of international customary law and, as such, are applicable to all States, regardless of whether they have ratified the Genocide Convention.
• This convention has been ratified by India.

Which case in the ICJ is the “South Africa vs. Israel Case”?

S Africa’s Charges:

• massive numbers of Palestinians, including children, have been killed in Gaza; their homes have been destroyed; and Israeli soldiers have driven them from their homes.
• It also entails the implementation of measures to prevent Palestinian births by eliminating vital health services that are required for pregnant women and their unborn children, as well as a blockade on food, water, and medical assistance to the strip.

S Africa’s Direct Requirements:

• With “provisional measures,” which are effectively emergency orders that can be implemented even before the main case begins, South Africa is pleading with the International Court of Justice (ICJ) to act quickly to stop Israel from committing more crimes in the strip.
• In order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention, which continue to be violated with impunity,” the argument goes that interim measures are required.

Israel’s Position:

• Israel has pledged to defend itself in court after criticising South Africa for initiating the action. Israeli officials claim that the case is a “blood libel” and have labelled it “preposterous.”
• Israel maintains that it has the right to use self-defense under international humanitarian law, citing the killing of over 23,000 civilians in Gaza as an example. We will proudly present this argument.

Position of the Global Community:

• Numerous nations and institutions have supported South Africa’s legal action. Among them are members of the Organisation of Islamic Countries (OIC), Namibia, Pakistan, Bolivia, the Maldives, Malaysia, Turkey, Jordan, and Columbia.
• The US, Israel’s biggest ally and supplier of weaponry, has stated that “allegations that Israel is committing genocide are unfounded, but Israel must prevent civilian harm and investigate allegations of humanitarian crimes.” The European Union has remained mute.
• The United Kingdom and France are opposing the lawsuit; in fact, France has threatened to not comply if Israel is found guilty of genocide.

What Concerns Are Various in the “S Africa vs. Israel Case”?

The ICJ as a Single Forum:

• There are concerns about the biassed attention paid to Israel, although non-state entities such as Hamas are not subject to ICJ proceedings.
• Investigation on the matter has been requested by ICC, which deals with individuals.

Worldwide Divide:

• The division between countries, which follows colonial and non-colonial histories, adds complexity: Germany supports Israel, while Bangladesh and Jordan support South Africa.
• Germany’s position in the South Africa v. Israel case is questionable given that it previously supported a liberal interpretation of the Genocide Convention.
• The division is a reflection of past power relations in the development of international law.
• It is believed that the procedures call into question the validity of international law in general. The aggressive remarks made by France add to this impression.
• The International Criminal Court (ICC), where Israel may file lawsuits against Hamas and its members, is distinct from the International Court of Justice (ICJ). The ICC prosecutes individuals in criminal cases.

What are the Genocide Laws and Regulations in India?

International Accords:

• Despite having accepted the UN Convention on Genocide, India does not have any domestic laws against genocide.
• India has ratified the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and it is a signatory to the United Nations Declaration on Human Rights (UDHR).

About IPC:

• The Indian Penal Code (IPC) lays out the processes for investigation, prosecution, and punishment in addition to providing for the punishment of genocide and associated crimes.
• According to IPC Section 153B, activities that incite hatred amongst groups based on factors like as religion, race, place of birth, domicile, language, etc. with the intention of starting riots or carrying out violent crimes are considered crimes and constitute genocide.

Articles of the Constitution:

• Protection against discrimination on the grounds of religion, race, caste, sex, or place of birth is granted under Article 15 of the Indian Constitution;
• Article 21 protects rights to life, liberty, and other things.

Laws & Regulations:

• The Protection of Human Rights Act (PHRA), 1993, gave rise to the establishment of India’s National Human Rights Commission (NHRC).
• Additionally, the act calls for the creation of State Human Rights Commissions.
• What Can Be Done to Stop War Crimes and Genocide?
• Genocide is not something that occurs suddenly or unexpectedly. Genocide is a planned tactic that needs to be organised, and it has typically been carried out by governments or organisations in charge of the state apparatus. Former UN Secretary-General Kofi Annan presented a five-point action plan for preventing genocide in 2004 on the tenth anniversary of the Rwandan genocide:

Stop Armed Conflict:

• Given that genocide is most likely to happen during a war, addressing the underlying causes of violence and conflict—hatred, intolerance, racism, discrimination, tyranny, and the dehumanising public discourse that denies entire groups of people their rights and dignity—is one of the best ways to lessen the likelihood of genocide.
• Reducing disparities in resource accessibility is an essential preventive measure.

Preserve Civilians:

• Protecting civilians must be one of the top concerns when attempts at conflict prevention fail. Genocide is a possibility anywhere there is intentional targeting of civilians because they are members of a certain community.
• The mandate of UN troops has been regularly extended by the UN Security Council in the past 10 years to enable them to physically defend civilians who are under threat of violence.

Put an end to impunity by legal action:

• Bringing individuals guilty of such crimes to trial is necessary to discourage future genocide perpetrators.
• A culture of prevention can be effectively promoted by combating impunity and creating a legitimate expectation that those responsible for genocide and similar crimes will face consequences.

Choosing Expert Advisors:

• In the worst possible way, the 1990s disasters in Rwanda and the Balkans showed how much more the UN needed to do to stop genocide.
• In light of this, the Secretary General designated a Special Adviser on the Prevention of Genocide in 2004.
• Information about potential genocide, war crimes, ethnic cleansing, and crimes against humanity is gathered by the Special Advisers.

Quick decisions, including the use of force:

• In line with the United Nations Charter, the Security Council will determine when, when, and how to intervene militarily in domestic affairs to stop genocide or other mass atrocity crimes.
• At the United Nations World Summit in 2005, all nations publicly decided that, in the event that peaceful means prove ineffective and national authorities are “manifestly failing” to safeguard their citizens from acts of mass atrocity, then:
• States should cooperate through the UNSC and in line with the UN Charter to take “timely and decisive action.
• The International Court of Justice (ICJ) case that South Africa filed against Israel has spurred a heated global discussion. The case has a complicated legal background because it centres on claims that Israel committed genocide in Gaza during its war operations. The ICJ’s rulings in the upcoming months will be essential in determining how the world views the international legal system, and the result is significant not only for easing the Gaza conflict but also as a critical test for the “rules-based international order.”