South Africa vs Israel at ICJ: Gaza Genocide Case
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31 JANUARY 2024
Not so surprisingly, the South African government has taken its concerns about potential genocide in Gaza to the International Court of Justice (ICJ) by filing a case against Israel.
Why does a country like South Africa take such a stance against Israel?
The Genocide Convention, under Article 9, allows any state party to move against another ICJ member. South Africa and Israel joined the ICJ in 1998 and 1950, respectively.
With over 160 cases brought before the ICJ, the court permits countries to address it on matters of genocide due to its status as a peremptory norm of international law, allowing no derogation.
A 2001 ICJ judgment established that its rulings are binding, but enforcement mechanisms are notably lacking.
The recent ICJ ruling in December 2022 allowed Gambia to bring genocide claims against Myanmar based on the Rohingya crisis.
In the South Africa versus Israel case, the court emphasized the common interest of all state parties to prevent, suppress, and punish genocide.
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...its rulings are binding, but enforcement mechanisms are notably lacking
While the court found a plausible link between Palestinians’ rights and the prevention of irreparable harm, it couldn’t conclusively state the occurrence of genocide in Gaza, rendering the ruling interim.
The presented facts did indicate violations of Palestinian rights, similar to the approach taken in the Ukraine versus Russia case, where no immediate ceasefire order was issued.
The International Criminal Court (ICC) is already investigating war crimes and crimes against humanity by both Israel and Hamas.
Meanwhile, the ICJ has requested compliance reports from Israel and South Africa and a conclusive determination on the violation of international law regarding genocide. The hearing for this will be held later.
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The International Criminal Court (ICC) is already investigating war crimes and crimes against humanity by both Israel and Hamas
The next step involves the United Nations Security Council (UNSC), which will discuss the ICJ decision. Countries will likely seek to make the ICJ’s determination binding for Israel.
However, historical precedents show the UNSC’s complexities on issues related to Israel and Palestine, with the United States employing its veto power multiple times to shield Israel.
The global ramifications of the U.S. position on Israel, not only regarding ceasefires but also in conflicts like Ukraine and persecution in Myanmar, underscore the geopolitical complexities at play.
In the Philippines versus China arbitration case, 2013 - 2016, the tribunal, Under The United Nations Convention on the Law of the Sea (UNCLOS), established that China’s historical claim to the South China Sea did not have a legal basis.
It also asserted that China had violated the Philippines’ sovereign rights to the South China Sea.
In response, China rejected the tribunal decision, stating that the tribunal had no legal validity and would not comply with the tribunal’s directions.
Another landmark legal dispute at the International Court of Justice occurred from 1984 to 1986. It was a case of Nicaragua versus the United States.
The background of the case follows when the government in Nicaragua accused the U.S. government of supporting armed rebel groups, also known as Contra rebels.
The Nicaraguan government claimed that the U.S. wanted to overthrow their government.
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United States employing its veto power multiple times to shield Israel
The ICJ delivered the judgement in favour of Nicaragua.
The United States was found guilty of violating international law based on breach of sovereignty and prohibition of using force.
The court also took notice of the principles of non-intervention and non-use of force in international relations.
The U.S. responded by asserting they would not comply with the court’s judgement. They argued that they did not accept the court’s jurisdiction in this case and that their action was justified.
This landmark case, Nicaragua versus the United States, is significant because it highlights the capability of ICJ in resolving international disputes.
There is a history of inability to enforce a judgment, with powerful states like the U.S. and China refusing to accept the verdict.
But, as the international community awaits the UNSC’s response to the Gaza genocide, a crucial question emerges: How valuable and practical is the ICJ ruling in preventing genocide?
However, the move by South Africa continues to set the stage for broader deliberations on international justice and its impact on global conflicts in the 21st century.
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...Nicaragua versus the United States, is significant because it highlights the capability of ICJ in resolving international disputes
There are glaring paradoxes in the role of ICJ regarding the intersection of legal framework and geopolitics.
The history of powerful states like China and the United States casts a dark shadow on the enforceability of the court’s ruling.
Meanwhile, the United States stands for justice when it comes to its role on the world stage. Ironically, when it (international justice) comes to its doorsteps, USA fails.
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Ironically, when it (international justice) comes to its doorsteps, USA fails
As in the case of Gaza, the need of the hour is the urgency to bring a ceasefire.
But then the inability of the court to assert and enforce a ruling, even though an interim order, highlights the interplay between the law and international powers, the ideals and pragmatism, living the idea of global justice to its fate.
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