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  • Context (TH I IE): South Africa had moved the ICJ, invoking the Convention on the Prevention and Punishment of the Crime of Genocide, 1948, against Israel.
  • South Africa has accused Israel of committing genocide in its ongoing military campaign in Gaza.
  • ICJ will decide:
    1. Whether it has jurisdiction on this matter,
    2. Whether the alleged acts fall under the 1948 Convention.
  • South Africa has sought the indication of provisional measures to stop the genocide.
  • Israel rejected any genocidal intent and anchored its arguments on its right to self-defence.

ICJ’s Jurisdiction and Provisional Measures

  • The ICJ is the principal judicial organ of the United Nations.
  • The ICJ-created statute clarifies that only states may be parties in cases before the Court.
  • Both South Africa and Israel are signatories to the Genocide Convention of 1948.
  • Article 94 of the UN Charter provides that “Each Member of the UN undertakes to comply with the decision of ICJ in any case to which it is a party”.
  • Provisional measures are interim rulings of the ICJ aimed at preventing either party from harming the main case irreparably.
  • ICJ cannot enforce its orders and depends on the UNSC to take measures.
  • UNSC is also subject to the veto power of permanent members.
    • The US has vetoed 34 out of 36 UNSC resolutions related to the Israel-Palestine conflict since 1945.

Convention on the Prevention and Punishment of the Crime of Genocide, 1948

  • In 1948, the Convention was adopted by the UNGA and came into force in 1951.
  • It is an international convention that defines genocide and obligates State Parties to prevent and punish the crime of genocide.
  • The Genocide Convention was the first human rights treaty adopted by the UNGA.
  • It is an instrument of international law leading to the codification of genocide, for the first time, as a crime.
  • There are about 153 member states that are engaged with the Genocide Convention.
  • Zambia is the most recent country to sign the convention in 2022.
  • India 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.

Definition of Genocide

  • Genocide, as defined under Article II of the Convention, refers to the acts that are committed with the intent to destroy, in whole or partly, a national, ethnical, racial or religious group.
  • These acts include:
    1. Killing members of the group
    2. Causing severe bodily or mental harm to members of the group.
    3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
    4. Imposing measures to prevent births within the group.
    5. Forcibly transfer the children of the group to another group.
  • Article I recognises genocide, committed in times of peace or in times of war, as a crime under international law.

States’ obligations under the Genocide Convention

Article I

  • Obligation not to commit genocide.
  • Obligation to prevent genocide, which, according to the ICJ, has an extra-territorial scope;
  • Obligation to punish genocide.

Article V

  • Obligation to enact the necessary legislation to give effect to the provisions of the Conventions.
  • Obligation to ensure effective penalties are provided for persons found guilty of criminal conduct.

Article VI

  • Obligation to try persons charged with genocide
    1. In a competent tribunal of the State in the territory of which the act was committed or
    2. By an international penal tribunal with accepted jurisdiction.

Article VII

  • Obligation to grant extradition when genocide charges are involved according to the laws and treaties in force.
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