India must engage closely with global legal systems
As a nation that seeks to shape international affairs, India should engage closely with specific international law developments based on its national interests.
The last few months have witnessed the momentous involvement of international law in international relations. The most noteworthy development has been South Africa suing Israel before the International Court of Justice (ICJ), alleging that the latter is committing genocide in Gaza. Although ICJ is yet to decide this case, it has held that, prime facie, South Africa’s claims may fall within the Genocide Convention, and that it is plausible that Israel has committed genocide in Gaza. ICJ has issued several provisional measures in this regard, with the latest one being ordering Israel to immediately stop its military offensive in Rafah while it decides the case. This is not the only case that ICJ is currently hearing on the alleged commission of genocide. Ukraine, which has made international law a centrepiece of its war against Russia, has a case before ICJ regarding the violation of the Genocide Convention.
Parallel to the ICJ proceedings against Israel, another development that caused a considerable stir in the international community is the request of the prosecutor of the International Criminal Court (ICC) to issue arrest warrants against Israeli leaders – prime minister Benjamin Netanyahu and defence minister Yoav Gallant – and Hamas leaders. The arrest warrants are sought on the charges of war crimes and crimes against humanity over the October 7 attack on Israel and the subsequent war in Gaza.
International law is also being resourcefully employed to fight the climate crisis. The Commission of Small Island States on Climate Change and International Law (COSIS), consisting of countries such Antigua & Barbuda and Tuvalu, requested an advisory opinion from the International Tribunal of the Law of the Sea (ITLOS). Last month, ITLOS delivered a historic verdict addressing the obligations of countries under the United Nations Convention on the Law of the Sea to combat marine environment pollution. Additionally, at the initiative of Vanuatu, the United Nations General Assembly (UNGA) has sought ICJ’s advisory opinion on the international law obligations of countries towards the climate crisis. Likewise, Chile and Colombia have invoked the advisory jurisdiction of the Inter-American Court of Human Rights on the issue of the climate crisis.
The international community has reacted differently to these significant developments. Several countries have actively taken part in these cases by submitting intervening applications. For example, as many as 32 countries submitted intervening applications in Ukraine’s case against Russia before ICJ. Likewise, several countries have rallied behind South Africa in its case against Israel, boosting its credentials to lead the Third World. Countries have taken different stands on the ICC prosecutor’s request for the arrest warrant. While United States President Joe Biden has called it “outrageous”, the European Union appears split on this issue. South Africa and several other countries have welcomed it.
One is tempted to ask what India’s stand has been on these developments. India has unwaveringly advocated for peace in Gaza and for a peaceful resolution between Ukraine and Russia through dialogue and diplomacy. India has supported calls for ceasefire and respect for international law at multilateral forums. For instance, India backed Egypt’s resolution at UNGA for an immediate humanitarian ceasefire in Gaza. Likewise, India recently signed the BRICS statement that decries Israel’s “blatant disregard of international law” in Gaza. However, unlike several other countries, India hasn’t quite taken a clear stand on any of the ICJ cases involving Israel and Russia. For instance, what is India’s stand on the ICJ’s three provisional measures decision against Israel? It is imperative to mention that the BRICS statement India backed refers to the ICJ’s decision. Or, does India support or oppose the ICC prosecutor’s arrest warrant request against Israeli leaders? India’s silence could be strategic because of the diplomatic tightrope walking that New Delhi must do on this issue.
India has engaged more directly with the climate crisis: India is one of the 88 countries that submitted a written application in ICJ’s advisory opinion case on the matter. Likewise, India submitted a written statement in the ITLOS case arguing that the tribunal lacked jurisdiction to hear COSIS’s case. Some lawyers call India’s statement a “lost opportunity”; India could have led developing countries’ voices on the marine environment issue.
As a nation that seeks to shape international affairs, India should engage closely with specific international law developments based on its national interests. This requires strengthening the State’s capacity for international law.
Prabhash Ranjan is a Humboldt Fellow and professor at Jindal Global Law School. The views expressed are personal
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