On Israel obligation to prevent genocide (GS Paper 2, International Relation)
Why in news?
- Recently, 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.
- A final verdict can only be pronounced after hearings on jurisdictional challenges and the merits of the claim are concluded, which will likely take several years.
Details:
- The ruling strongly indicates that the judges believe that there is a “plausible” genocidal risk to Palestinians, thereby clinching an undeniable victory for South Africa. As established in the Court’s LaGrand judgment in 2001, such provisional rulings are binding, and non-compliance entails the breach of an international legal obligation.
- However, whether Israel will choose to abide by the ruling is debatable since the ICJ does not have an enforcement mechanism of its own.
- Israeli Prime Minister Benjamin Netanyahu slammed the ICJ ruling as “outrageous” while underscoring that Israel is fighting a “just war like no other.” He reiterated the claim that Israel is defending itself against Hamas.
Can South Africa move against Israel?
- The Genocide Convention has been ratified by an overwhelming number of states, including South Africa (1998) and Israel (1950).
- Article IX allows any state party to institute a case against another in the ICJ, even if it is not directly involved in the conflict. This is because the prohibition of genocide is considered a peremptory norm of international law (jus cogens) from which no derogation is permissible.
- This is the basis on which South Africa, a party that is technically unrelated to the conflict, instituted the ongoing proceedings. For instance, in December 2022, the Court ruled that Gambia could bring a genocide claim against Myanmar for its treatment of the ethnic Rohingya population.
- Upholding South Africa’s standing to sue, the Court noted that “all States parties to the Convention have a common interest to ensure the prevention, suppression, and punishment of genocide” and thus any of them can seek compliance of such erga omnes obligations (obligations towards the international community as a whole) in any given case.
What was the basis for the ruling?
- The Court ascertained that the standard to order provisional measures had been met, that there is a “plausible” link between the rights sought to be protected by South Africa (the rights of Palestinians to be free from genocidal attacks) and the measures it requests as well as a risk of irreparable harm and genuine urgency.
- This was an unsurprising declaration given the relatively low threshold for an interim ruling, the Court did not have to determine conclusively that genocidal acts in Gaza had, in fact, occurred. A prima facie determination is sufficient.
- Relying on various statements from UN officials, special rapporteurs, and other international bodies regarding the catastrophic situation in Gaza, it 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”.
- Highlighting the need for emergency measures, the Court 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.
What are the provisional measures?
- Declining South Africa’s request, the Court refused to issue an immediate ceasefire order as it had done previously in the Ukraine versus Russia case. However, Ukraine’s situation is factually and legally distinguishable from Gaza.
- In the case instituted by Ukraine against Russia, both parties were also the two involved in the conflict, while Hamas, as a non-state actor, is not a party to the ongoing proceedings.
- The Court ruled that Israel must, in accordance with its obligation under the Convention, take all measures within its power to prevent the commission of all genocidal acts against Palestinians in Gaza, such as causing serious bodily or mental harm, killing civilians, and imposing measures intended to prevent births, among others.
- Furthermore, during the proceedings, South Africa accused Israel of furthering genocide through its state organs including the military. It pointed out that high-level Israeli politicians made genocidal statements, which were then echoed by soldiers on the ground in Gaza while making TikTok reels. Addressing such concerns, the Court directed Israel to ensure “with immediate effect” that its military does not commit any genocidal acts either.
- The Court also ordered Israel to permit the entry of urgently needed basic services and humanitarian assistance into the Palestinian enclave. South Africa had alleged that Israel’s blockade of food, water, medicine, and other essential supplies had pushed Palestinians to the “brink of famine.”
- Additionally, Israel was ordered to preserve evidence relating to the claim. This will ensure that vital evidence is not lost or destroyed before the merits phase of the case, when the Court has to conclusively determine if Israel has committed genocide or not.
- Such evidence will also be relevant for proceedings before the International Criminal Court (ICC), which is already investigating the possible commission of war crimes and crimes against humanity by both Hamas and Israel. However, South Africa’s request to permit fact-finding missions, international mandates, and other bodies access to Gaza to assist in the retention of evidence was not entertained by the Court.
- With respect to compliance, Israel was directed to submit a report to the Court on all steps undertaken to abide by the measures imposed by the Court within one month of the ruling. South Africa will have a chance to respond to this report. This will also provide an opportunity to present more evidence such as the recently declassified cabinet minutes explaining Israel’s intent behind the hostilities.
What happens next?
- The UNSC has long been divided on the conflict, with the U.S. having used its veto power multiple times to shield Israel from demands for a ceasefire. However, experts say that Washington’s veto of an ICJ-approved decision could undermine U.S. President Joe Biden’s calls for others especially its adversaries Russia and Myanmar to uphold the Court’s rulings.
- Following the verdict, nearly a dozen Western countries including the U.S. have suspended funding for the United Nations’ refugee agency for Palestinians (UNRWA) owing to allegations that its staff were involved in the October 7 Hamas attacks on Israel.
- Established in 1948, the UNRWA provides education, health, and emergency aid services to about two-thirds of Gaza’s 2.3 million population and has played a pivotal role during the war. Although many have been left disappointed by the Court’s refusal to order a ceasefire, experts say that this was expected.
