Tu Globalista: Lo que sucede en el mundo.

The post that has caused some stir can be accessed here. What I get, in essence, are two elements (I might be wrong, and I might have misunderstood things, but well, this is what you get from someone with broken English).

On one side, if you want to get evidence regarding the intent or interpretation of genocide, you cannot cherry-pick it must be sufficiently objective. The other, which links with the former, is that, given that you cannot cherry-pick the evidence, the standard of proof should be higher, that is, it must lead to the unequivocal conclusion that Israel had the intent to perpetrate genocide. In other words the ICJ should not be left to reach conclusions through circumstantial evidence.

Why is that so important? Why not circumstantial evidence? Because, then, there will be the possibility to link the acts perpetrated in Gaza to the responsibility by Israel on genocide.

However, there are some elements that were left open; they cite the standard of the ICTR as well as the Serbian cases. Even if there is a possible standard as to what you need to prove and how to prove it. There are still some basic elements, as it is with the issue that the ICJ is not bound to previous cases, and it is not bound by standards reached by other courts. In a sense, each case is independent. The assessment of factual evidence can change.

But, going into the facts of the case, I will like to raise some elements that are different from the Bosnian cases and the ICTR standards regarding evidence, which in a way it is linked with the UK v. Albania case of 1945, yes the very first case handled by the ICJ, and the possibility to have access to evidence.

It must be stressed that neither Palestina nor South Africa might be in a position to obtain factual evidence on the ground. And also, it is quite impossible to have access to special reports and governmental directions given by top-down Israel officials. In a sense, there is somewhat a factual impossibility to have access to such possible evidence.

In a similar vein, the UK v. Albania, a.k.a. the Corfu Channel case bears a similitude. Since the UK did not have access to actual instructions of Albanian authorities to fire on the Saumarez and the Volage in the Corfu Channel, in the same way, South Africa does not have access to the actual instructions by high Israeli officials in the targeting of civilian populations with genocidal intention.

In the Corfu Channel case, maybe what we will see in this South Africa v. Israel case is that South Africa is unable and will be unable to provide sufficient evidence that Israel officials laid down instructions for the perpetration of genocide in Gaza. Also, it will be subject to much debate regarding the possibility of connivance and acquiescence by officials regarding the acts of lower-ranking officials in the perpetration of possible acts of genocide. It will be hard to provide as well with possible evidence since, as I said before, South Africa would not have the possibility to have access to actual evidence. In essence the active responsibility by Israel regarding Genocide will be hard to prove on these grounds.

However, in elementary assessment of what an international responsibility is. Should start from a basic assessment of an obligation, that is, to give, to do, or to abstain doing.

Whether the Israel officials layd down instructions for the perpetration of Genocide in Gaza will be a matter of conjecture. The authors if at all will remain unknown, with little possibility of prove.

The task of the ICJ in the case is to prove whether Israel is responsible under international law, for the violation of the Genocide convention.

As in the Corfu Channel Case, the Court acknowledged that when something takes place contrary to international law within the territory of a state, such state might be called up to give explanations of what happened. But, as well, it cannot be concluded that the state which exercises control over its territory, knows or ought to know what is taking place. That is the first admission by the Court. In this element, recognizes that there is no prima facie responsibility over the state. However, this does not shift the burden of proof to the other party to provide with sufficient evidence that something took place by direct involvement of the State in question, or its acquiescence, because that would be to put in a disadvantage the victim of an international breach. (See p.18 Merits Corfu Channel case)

If sufficient evidence is required, then there will be procedural injustice on the side of South Africa.

since it will give if not impossible quite hard to provide with evidence that is seated in the control of the other party. So, it is possible to allow for indirect evidence. Such indirect evidence has only one requirement, that it should lead to a logical and single conclusion. (Id.)

In that sense as in the Corfu Channel case, the Court allowed for inferences of fact. The Court allowed inferences of fact, given that, for one, it was quite hard for UK provide with sufficient proof, and for the other, it should give no room for reasonable doubt. (Id.)

As in the Corfu Channel case, the facts to be assessed through inferences of fact were two. One is directed at the attitude by Albania before and after the explosions on October 22nd, and the other is directed at the possibility of minelaying by Albania, in this case independent of whether Albania did it or a third party did it with the cooperation of Albania or by allowing the minelaying. There are three possibilities: active participation, connivance, or acquiescence. Those three possibilities were discarded, and the Court chose to focus on whether the minelaying operation was subject to being observed by Albanian authorities.

“The Court must examine therefore whether it has been established by means of indirect evidence that Albania has knowledge of minelaying in her territorial waters independently of any connivance on her part in this operation. The proof may be drawn from inferences of fact, provided that they leave no room for reasonable doubt. The elements of fact on which these inferences can be based may differ from those which are relevant to the question of connivance.

In the present case, two series of facts, which corroborate one another, have to be considered: the first relates to Albania’s attitude before and after the disaster of October 22nd, 1946; the other concerns the feasibility of observing minelaying from the Albanian coast.” p.18

In this sense, then what becomes of importance is whether the evidence provided by South Africa leads to the conclusion without reasonable doubt that Israel committed acts leading to genocide.

This is also a link to the Corfu Channel case, in the sense, that if Albania had knowledge of the operations taken place in Albanian waters, in that sense, Albania failed to communicate the mine laying the Corfu Channel. In accordance to the Court Albania went into a grave omission. And therefore was responsible under international law.

In the same sense, maybe the ICJ could reach the conclusion, as with Albania, that there was a breach of international law due to omission, it failed to communicate the existence of a minefield. Irrespective wether this was done by Albanian authorities. Maybe in the same sense Israel could be subject to international responsibility, not by direct acts, but by the omission for the prevention of genocide.

In this case, the burden of proof is shifted from South Africa to Gaza. In the sense that it will be Israel the one that has to provide with sufficient evidence that, Israel did all what it was in its power to prevent genocide taking place, and on the other side it is South Africa that will provide inferences of fact that will lead to no other conclusion that genocide took place. The standard of proof will be subject to long debates in this case.