SA’s Case Against Israel at International Court of Justice Explained

Thamsanqa Malusi

Many would agree that the Palestinian people who reside in the territories occupied by Jewish Israelis are among the most oppressed people in the world.

In February 2022, Amnesty International released a 280-page report, titled ‘Israel’s apartheid against Palestinians: Cruel System of Domination and Crime Against Humanity”.

The report found that “since its establishment in 1948, Israel has pursued an explicit policy of establishing and maintaining a Jewish demographic hegemony and maximising its control over land to benefit Jewish Israelis, while minimising the number of Palestinians and restricting their rights and obstructing their ability to challenge this dispossession”.

Similarly, in a report to the United Nations (UN) General Assembly dated 25 October 2023 on the Israeli settlement activities in the occupied Palestinian territories, the UN secretary general found that “[o]ver 56 years of Israeli military occupation of the occupied Palestinian territory . . . severely affect a wide range of rights of the Palestinian people, including the right to self-determination”.

Against this backdrop, on 7 October 2023, the world watched in horror as the military wing of Hamas, a Palestinian Islamist movement listed as a terrorist organisation by the United Nations, launched an indiscriminate surprise attack on Israel, which saw about 1 200 Israelis and foreign nationals killed.

Since this attack, the Israeli government declared war against Hamas and launched a military assault in Gaza, which, according to the Palestinian Health Ministry, has seen more than 21 110 Palestinians killed to date – 70% of whom are believed to be women and children.

Following these attacks in the Gaza Strip, on 29 December 2023, South Africa filed an application before the International Court of Justice (ICJ) instituting proceedings against the state of Israel.

‘GENOCIDE’

In the application, South Africa alleges Israel has committed acts of genocide against the people of Palestine in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).

South Africa’s application to the ICJ has been widely celebrated, however, few people have a decent grasp of what the application entails.

LEGAL INTRICACIES

The ICJ, headquartered in The Hague, The Netherlands, is the principal judicial organ of the United Nations.

Only sovereign state actors can be parties in cases before the ICJ.

Both South Africa and Israel are members of the UN and therefore parties to the Statute of the ICJ.

In the application before the ICJ, South Africa argues that since the events of 7 October 2023 “Israel, its officials and/or agents, have acted with the intent to destroy Palestinians in Gaza, part of a protected group under the Genocide Convention”.

In particular, South Africa claims, among other things, that Israel has engaged in and failed to prevent the killing of Palestinians in Gaza, has caused the forced evacuation and displacement of around 85% of the Palestinians in Gaza, has destroyed Palestinian life in Gaza, and has imposed measures intended to prevent Palestinian births in Gaza.

These acts and omissions by Israel, South Africa argues, are genocidal in nature and therefore violate the Genocide Convention.

Notwithstanding these charges against Israel, South Africa submits as part of its application that it “unequivocally condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage taking by Hamas and other Palestinian armed groups”.

The ICJ has jurisdiction over any dispute concerning the convention and therefore has jurisdiction to hear South Africa’s application.

It is for this reason that the Israeli government has publicly indicated it would defend itself at the ICJ against South Africa’s charge of genocide.

The relief sought by South Africa in its application is a declarator to the effect that Israel has committed acts of genocide in Gaza and for the ICJ to instruct Israel to cease committing these acts.

South Africa further seeks an order for Israel to perform the obligations of reparations in the interest of Palestinian victims, together with an assurance from Israel of non-repetition of violating of the Genocide Convention.

This is the main application.

Pending the ICJ’s determination of the main application, South Africa has also urgently sought provisional measures to protect the Palestinians’ rights invoked in the main application from imminent and irreparable loss.

The provisional measures sought by South Africa include an order by the ICJ that “Israel shall immediately suspend its military operations in and against Gaza” and “ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide”.

The provisional measures application will be heard before and separately from the main application.

The application is set down for oral argument on 11 and 12 January at The Hague.

To my understanding, no hearing date has been set as of yet for the main application.

JUDGEMENT

Following oral arguments, the ICJ judges will deliberate in private and provide a judgement when ready.

Judgements of the ICJ are final and are without appeal.

If previous practice is any indication, the ICJ should deliver judgement on the provisional measures application in a week or so after the hearing.

Both South Africa and Israel are bound by whatever decision the ICJ makes in respect of the application.

In the past, some state actors who had adverse findings made against them by the ICJ, simply ignored the ICJ’s binding orders.

For example, on 26 February 2022, Ukraine filed an application in the ICJ against Russia for violation of the Genocide Convention for its invasion of Ukraine, which also included a request for provisional measures.

On 16 March 2022, the ICJ made a finding on the provisional measures sought by Ukraine and ordered Russia “[to]immediately suspend the military operations that it commenced on 24 February 2020 in the territory of Ukraine”.
Russia has ignored this order.
In the event that state actors ignore the ICJ’s orders the aggrieved party may approach the UN Security Council.

VETO POWERS

The permanent member states of the UN Security Council – China, France, Russia, the United Kingdom and the United States – have veto powers.
This means should the ICJ find against Israel and Israel fails to perform its obligations provided in the ICJ order, any recourse by South Africa to the Security Council would have to be supported by all the permanent member states.

However, there is a long history of vetoes by the United States of UN Security Council draft resolutions to protect Israel.

Whether the ICJ will find in favour of South Africa remains to be seen.

Regardless of how the case eventually pans out, using social media as the metric for measurement, the South African government’s decision to institute these proceedings seems to enjoy wide public support.

Unsurprisingly, the Israeli government, through its spokesperson Eylon Levy, has labelled South Africa’s application as “blood libel” and accused the country of having “made itself criminally complicit with Hamas’ campaign of genocide”.

The statement goes on to say that “history will judge South Africa for abetting the modern heirs of the Nazis.”
– Daily Maverick

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