SA v Israel genocide case probed
South Africa has launched a case at the UN’s top court alleging that Israel’s military campaign in Gaza amounts to genocide. Ahead of the hearing which will take place on January 11 and 12,
Saber Ahmed Jazbhay unpacks how we got to this point.
FOR the first time, a country has decided to file a case against Israel before the International Court of Justice (ICJ), formerly known as the World Court (WC), alleging that Israel is guilty of genocide. In this sense, South Africa’s decision is a historic one. As for Israel, it’s been before this forum on a number of occasions but never to face a heinous offence such as genocide.
For example, as I recall, in 2004, the court rendered “an advisory opinion” in the case concerning the “legal consequences of the construction of a wall in the occupied Palestinian territory”. So even though that opinion had a moral legitimacy, Israel was not legally obliged to dismantle the wall, which still stands despite it being over land illegally occupied by Israel.
In other words, despite the ICJ’s decision that the construction of the Israeli wall was contrary to international law, Israel still did not abide by the legal opinion. Recall that when South Africa faced allegations when it intransigently occupied and administered Namibia, hitherto South West Africa after WWI, it was subject to sanctions and disinvestment which intensified after the Soweto revolution of 1976.
The result was that Namibia got its independence and Walvis Bay, which South Africa declared part of South Africa, reverted to Namibian sovereignty.
To summarise, I submit that many South Africans across the pro-anti Israel wall are under a perception that the WC, or ICJ, and the ICC are the same jurisdictional power and effectiveness.
In other words, the outcome will be more than dogs baying at the moon. Israel is nominally in the dock.
She won’t be obliged to obey or accede to the outcome, which will be merely advisory in scope, and reach and effect. Unlike the International Criminal Court (ICC) which is an organ in terms of the Rome Statute, the WC is an advisory organ created by the UN but it is a toothless dog.
Yet, people are equating the WC to the ICC, which investigates and indicts individuals such as heads of state for crimes such as genocide and, if found guilty, are imprisoned. Remember Slobodan Milosovich in relation to the genocide in Bosnia? This won’t happen there though, I submit, the outcome could spur Abdul Karim, the special investigator/prosecutor to consider further steps against individuals such as Benjamin Netanyahu and Yoav Gallant, and indict them for crimes of genocide.
So, the powers and jurisdiction of the WC are different from that of the ICC.
The WC’s powers are advisory and mostly ignored, while the powers of the ICC to arrest and convict persons charged are ignored at their own peril as Sudan’s then head Omar al-Bashir experienced a few years back. At the WC, governments appear, while at the ICC individuals appear as indictees.
This is crucial information that needs to be clarified.
I have had sight of and perused the source document, namely an 84-page complaint by South Africa against Israel.
How did we get to this point? It is a well-publicised fact that on the October 7 last year the militant resistance organisation Hamas attacked the illegally-occupied Palestinian territories by Israel, killing a lot of Israelis as well as taking more than 120 hostages. Israel retaliated with a murderous reprisal against all Palestinians in Gaza.
Its response, it is alleged, was tantamount to genocide. Fast forward to December 29, 2023.
South Africa initiated proceedings in the ICJ against the State of Israel, alleging breaches of the 1948
Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”), which entered into force in 1951.
The application asks the ICJ to call on Israel to stop its military campaign in Gaza while the matter is pending before the court. It is being brought under article IX of the Genocide Convention and states that Israel “intend(s) to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group, that being the part of the Palestinian group in the Gaza Strip”.
South Africa alleges that the state of Israel has failed to prevent genocide, failed to prosecute public incitement to genocide, and has directly engaged in genocidal acts in Gaza.
The application asks the ICJ to call on Israel to stop its military campaign in Gaza while the matter is pending before the court.
In terms of Rule 74(4) of the ICJ’s Rules of Court, a request would include the ICJ’s president calling on Israel to halt all actions in Gaza that constitute or give rise to violations of the Genocide Convention while the matter is pending in front of the ICJ.
In its application, South Africa alleges that Israel has killed a large number of Palestinians; inflicted “conditions of life intended to bring about (Palestinians’) destruction as a group”; caused mass displacement and destruction of homes; deprived Palestinians of access to adequate food, water, shelter, medical care and sanitation; and imposed measures that obstruct Palestinians from being able to give birth. The application places these allegations within the context of Israel’s telecommunications blackouts, restriction of fact-finding bodies, and killing of journalists in Gaza since the conflict began.
So far Turkey and Malaysia, as well as the Organisation of Islamic Countries, have endorsed the case but they haven’t joined with South Africa, and it will be interesting to see whether other states will join South Africa’s case, as happened, if we remember, with the Ukrainian case against Russia.
No wonder Israel has decided to appear before the court to counter the claim made in the South African case.
This Israeli appearance cannot be taken for granted. But if news reports are confirmed, and Israel does indeed appear before the ICJ, this could also imply the possibility for other countries such as the UK and US to join Israel’s counterclaims.
Former Deputy Judge President Dikgang Moseneke has been appointed as an ad-hoc judge to join the 15 regular judges of the International Court of Justice (ICJ).
South Africa’s legal team for the case comprises some of the top legal experts in the country, namely John Dugard SC, Max du Plessis SC, Tembeka Ngcukaitobi SC and Adila Hassim SC.