In the "Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip - South Africa v Israel" case before the International Court of Justice (ICJ), both the majority and minority judgments addressed several critical issues regarding the alleged commission of genocide in the Gaza Strip by Israel. Here, we'll compare the two judgments on three key points: jurisdiction, application of the Genocide Convention, and the determination of whether genocide occurred.
1. Jurisdiction:
In the majority judgment, the ICJ found that it had jurisdiction to hear the case based on the consent of both South Africa and Israel to the compulsory jurisdiction of the Court. The majority emphasized that the Court's jurisdiction was not limited to disputes between States, but also extended to cases involving alleged violations of international law, such as genocide.
On the other hand, the minority judgment argued that the ICJ did not have jurisdiction to hear the case because it involved allegations of genocide committed by a non-State party (Israel) against a non-State entity (the people of the Gaza Strip). The minority contended that the Genocide Convention only applied to actions committed by States, and since the Gaza Strip was not a recognized State, the Court had no jurisdiction over the matter.
2. Application of the Genocide Convention:
The majority judgment interpreted the Genocide Convention broadly, holding that it applied to acts committed by both State and non-State actors, as long as the acts met the criteria for genocide outlined in the Convention. The majority also emphasized that the Convention's prohibitions on genocide were absolute and non-derogable, and that States had a duty to prevent and punish genocide wherever it occurred.
In contrast, the minority judgment took a more narrow view of the Genocide Convention, arguing that it only applied to actions committed by States and their agents. The minority also raised questions about the applicability of the Convention to non-State entities like the people of the Gaza Strip, suggesting that the Convention may not have been intended to cover such situations.
3. Determination of whether genocide occurred:
The majority judgment found that Israel had committed acts that amounted to genocide in the Gaza Strip, including the intentional killing of civilians, the destruction of homes and infrastructure, and the imposition of conditions calculated to bring about the physical destruction of the group. The majority concluded that these actions were committed with the specific intent to destroy the Palestinian people in whole or in part, and thus constituted genocide under the Convention.
Conversely, the minority judgment disagreed with the majority's assessment, arguing that the evidence presented in the case was insufficient to establish that genocide had occurred. The minority raised doubts about whether Israel's actions were committed with the requisite intent to destroy the Palestinian people, and suggested that the situation in the Gaza Strip was more complex and could not be reduced to a simple case of genocide.