In law, those who accuse — read atrocities — will have opportunity for providing proof in the right and proper forum which can mete out justice for all in the Biblical Holy Land!
Commentary And Analysis . . . South Africa, in an unexpected move, has lodged Application at the International Court of Justice (ICJ) at the Hague, Netherlands, alleging “acts of genocide” i.e. atrocities, by Israel in the Gaza Strip shortly after Saturday 7 October. It was on that day last year that Hamas militants in the Gaza Strip allegedly bulldozed through the double security fencing, the buffer zone, between the territory and Israel and attacked the international music festival. CNN reported on Wednesday that Israel will put in an appearance at the ICJ.
South Africa, being half the world away from Israel, may not have independently verified dossier and/or documentation on the allegations. In that case, the Application can be read as preemptive strike, designed probably in some convulated way for getting ICJ protection for Israel.
However, there’s no proof that South Africa may be working, disingenuously or even remotely by any stretch of the imagination, with Israel on the genocide Application. In any case, there’s always the first time in everything. The truth will eventually emerge, even if years later, and free the victims including those that moved on.
The ICJ, in the absence of proof forthcoming from South Africa on the genocide allegations, can only fall back on Public Inquiry for building up the case against Israel on atrocities or otherwise the Application falls apart.
In “criminal case”, the Test of the Burden of Proof must meet high threshold viz. “beyond reasonable doubt”. The court of law will not accept conspiracy theories, circumstantial evidence, inadmissible hearsay, and forms of politics.
Having said that, probably anyone can turn up at the ICJ and present evidence in the form of pictures, video, statistics, drone surveillance maps of the Gaza Strip testimonies backed by corroborating evidence. In law, the ICJ can disregard or reject what’s put before it. If it rejects, it may not explain. The focus would be on matters of public concern and public interest for bringing closure. In law, there can be no closure unless litigation ends.
The links immediately following may be telling. Israel has right of reply on solution/s uncompromised by shadow banning, digital box, limited hangout and backdoor government portals into social media. Google these terms. The jury may still be out on whether Israel has bragging rights in mitigation and/or not even in mitigation.
Atrocities
The ICJ can rule on whether there’s sufficient body of evidence against Israel on the genocide and/or atrocities alleged. It would no doubt consider the right of self-defence and defensible borders, among others, under international law. They can’t be carte blanche.
Borders, under international law, must be defensible either by geography or by the law of conquest. Otherwise, as seen in Ukraine, the international community would be helpless.
The following academic link which merits peer review remains good education, whether qualified or otherwise, but may not be put before any court of law on issues in conflict between parties in dispute. The judge remains bound by what happens in court. The parties are bound by pleadings. The court remains about bringing closure. There can be no closure if litigation and/or war does not end.
Israel at present, after series of allegedly unprovoked war, occupies 80 per cent of the Biblical Holy Land or Old Free Palestine declared by the Roman Empire in thwarting the 12 Tribes of Israel. In 1948, the United Nations Security Council (UNSC) separated Israel as Jewish state from Palestine. It was given 20 per cent of the land. Earlier, the British separated Jordan from the Trans Jordan Palestine Mandate.
Israel In Wars
The focus must be on solution/s based purely on the rule of law, human rights and international law viz. away from war which can only be about the continuation of politics by other means until the parties come to the negotiation table.
If human beings are all about precision timing on this and that and that and this, then they are robots like AI i.e. the outcomes are predictable. There can be no discussion, negotiation, consensus or compromise. It’s all about killing or risk being killed, surrender or risk being defeated.
The Palestinian leadership shortly after 2005 (presidential election)/2006 (legislative election), has been about sharing the Narrative, lest people forget. It’s about political personalities remaining in the public eye for gathering the votes — albeit when elections return — and seeking donations for “the cause”. The solution/s elude stakeholders.
Except in the case of Bosnia-Herzegovina, punishment if disproportionate and/or collective, may not fall within the definition of genocide. In Bosnia-Herzegovina, it was held by the 2008 International War Crimes Tribunal that the Orthodox Christian Serbian speakers may have deliberately and systematically tried eliminating the Muslim Bosnian speakers. It was allegedly about exacting revenge for the excesses of the Ottoman Empire. Bosnia-Herzegovina brought back memories when it declared itself Islamic state in 1992. The Roman Catholic Croats in Bosnia-Herzegovina later stood between the Serbs and Bosnians. The ICJ may not find that the Gaza Strip was another Bosnia. We stand corrected.
Again, CNN reported on Wednesday that Israel, after having publicly rejected the jurisdiction of the ICJ, will put in appearance at the ICJ on the South African Application. If abuse of power can be proven, discretion does not exist. Discretion isn’t law. The court has no jurisdiction i.e. it’s not matter for judicial consideration and resolution. The court of law was only about law.
Body Of Law
In jurisprudence, there’s law, no law, no law but there can be law, and where there can be no law. Opinion isn’t law. Only the court can declare law. Parliament passes law but cannot declare it.
If there’s no law, there can be no crime. In short, no law, no crime. There must be law before there can be crime. The court of law isn’t about truth or justice.
Nullum crimen sine lege (no crime without law) is sometimes called the legality principle and is also interchangeable with “nullum poena sine lege,” which translates to “no punishment without law”.
Law, ultimately, may be about the power of language, showing proof of wide reading, ability to cite, ability to think on law and ability to fathom the judge’s thinking on ruling.
In jurisprudence, it isn’t possible that anyone knows law, and this may comfort those have no clear conscience, and dismay those seeking justice. The loser has the right to know why he or she lost. Again, the court of law isn’t about justice or truth. It isn’t about ethics, moral values, theology, civilisational values, sin, God, or righteousness. In jurisprudence, God isn’t source in law. Law must have source for jurisdiction, authority and power. Law exists, and has always existed, based on common sense, universal values and the principles of natural justice. The principles of natural justice is about the individual, not justice per se.
Discrimination
In the rule of law, there can be no discrimination save as provided by law, and in that case — i.e. discrimination — there must be sunset clause. The discrimination cannot continue if the sunset clause was removed. There’s no one above the law and all are equal under the law.
The ICJ can and may comment on Israel’s law on the right of return, by way of orbiter dictum, although the court of law does not get into DNA and geographical origin.
In the rule of law, conviction must be perfected in law for perfection in law. Otherwise, there’s no conviction. There must be compliance with court procedures, due process and the greater emphasis on the spirit of the law. It’s better to let thousand guilty men go free than hang innocent man.
There’s greater emphasis on the spirit of the law in the rule of law, the basis of the Constitution, albeit read with the letter of the law. The letter of the law, by itself, isn’t law at all.
The rule of law isn’t legal term but political. It arises from within the Constitution based on the ultimate political documents which sets forth the governing institutions of state. Israel has no Constitution but subscribes to the rule of law as Jewish state and/or nation-state with Jewish character. The Supreme Court of Israel can sit as the constitutional court on constitutional law and jurisprudence and make declaration. There are no remedies in declaration. It may provide Advisory Opinion for declaration of local case law.
Israel In Difficult Position
There’s little doubt that, based on the court of public opinion, Israel isn’t in an enviable position since the 7 October attacks. The court of public opinion, contrary to public perceptions, was about cases in the court of law or cases which should be there. It’s about matters of public concern and matters of public interest.
The Jewish state, after shove following push, allegedly went berserk in the Gaza Strip as it ferrets out militants, seizes their weapons cache and floods/blows up hidden tunnels. There have been allegations that most of the collateral damage, in human lives, came from human shields and people who could not get away from the conflict zone or could not get away in time. Israel claims that it warned them in advance and gave reasonable time for seeking refuge in safety.
Collateral damage — it isn’t genocide — must meet two criteria in criminal law viz. actus reus (the physical act), and mens rea (state of the mind and/or intention on guilt). — NMH
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.
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