SA keeps up heat on Israel
Justice minister says individual Israelis could be charged
The government is pushing ahead with its case in the International Criminal Court (ICC) against Israel, encouraged by its success at the International Court of Justice (ICJ) in The Hague on Friday.
Though the ICJ stopped short of calling for a ceasefire in the four-month-old Gaza war, the ruling has put Israel on watch as it conducts its war in which more than 25,000 people have been killed and leaving Gaza’s 2-million population on the brink of humanitarian disaster. The war began after Hamas militants attacked Israel in the early hours of October 7 2023, killing 1,200 Israelis and taking about 200 hostages.
Though both Israel and South Africa are claiming victory at the court, South African cabinet ministers insist that for Israel to carry out the court’s order, it would have to halt hostilities in Gaza, a claim that Israeli Prime Minister Benjamin Netanyahu has rejected as “outrageous”.
International relations & co-operation minister Naledi Pandor said the court’s decision amounts to ordering a ceasefire.
“How do you provide aid and water without a ceasefire? If you read the order, by implication a ceasefire must happen,” Pandor said at The Hague, where she led a high-powered ministerial delegation.
Israel will now have to tread carefully in Gaza and must submit a report to the ICJ within a month detailing steps it has taken to prevent genocide being committed in the disputed territory.
But the South African government is not leaving matters there. In November 2023 it had already approached the ICC to support an existing investigation by the ICC’s Office of the Prosecutor. Unlike the ICJ, which deals in matters between states, the ICC is empowered to prosecute individuals.
When South Africa first approached the ICC in November, Pandor said: “The murder of children, women and the aged by Israel is an act that should have resulted in the ICC issuing an immediate arrest warrant for key decision-makers, including Mr Netanyahu, who’s responsible for violations of international criminal law.”’
Justice minister Ronald Lamola believes South Africa has an even stronger case to bring against Israel at the ICC in light of the ruling.
“We believe the ICJ ruling is a good foundation for the ICC to start to consider the individuals involved in some of the atrocities in Gaza,” Lamola said after the ICJ ruling on Friday.
The ruling is to be followed by an investigation by the ICJ, which could go on for years, into whether Israel has committed genocide. But South Africa is moving ahead with the ICC process and could also take action if the ICJ’s ruling is vetoed at the UN Security Council, where the US, Israel’s strongest Western backer, holds veto power.
The ICJ matter will come before the Security Council this week.
“If there is any challenge in terms of the implementation of the court order, we also have options [apart from the Security CounBy
cil]. If it’s vetoed there we [can go] to the UN General Assembly.
“South Africa was expelled from the UN when apartheid was declared a crime against humanity, so Israel’s impunity is over,” Lamola said.
He was confident that the favourable outcome at the ICJ would strengthen the war crimes complaint against Israel laid at the ICC. Lamola attended the conference of state parties of the ICC in December where the ICC prosecutor updated him on the progress of the South African complaint.
“He [the prosecutor] committed that there is progress. They are working on the matter day and night and they’ve also looked for dedicated resources to [process] the matter. We were assured of their commitment.”
Protocols of the ICC allow member states to refer another state to the ICC prosecutor’s office if they believe war crimes and other human rights violations are being committed. The office then decides if it should launch a full war crimes investigation.
Lamola said the ICJ order could be used by the international community and supporting countries to put pressure on Israel.
“Already many countries have welcomed the outcome and have called on Israel to comply. The international community will be standing on high moral ground to pressure the state of Israel into stopping committing these acts which are within the genocidal convention,” he said.
Lamola said the ICJ judgment would carry weight in the Security Council. UN secretary-general Antonio Guterres had already invoked article 99 of the UN Charter, “so if we go with the weight of the court order, the highest instrument of the UN, we believe many countries will support it”.
Article 99 says “the secretary-general may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security”.
It is intended to raise the alarm to prevent a brewing crisis from spiralling out of control. While the ICJ did not explicitly call for a ceasefire in Gaza, Lamola said the court’s order is “very clear” that Israel needs to stop all genocidal acts, which include bombing, and must allow humanitarian aid to enter.
“It goes beyond calling for a ceasefire in our view. Its operational intent is to stop anything that is genocidal, including to prosecute the officials known to be inciting genocidal activities.
“That order in our view is within the realm of the Genocide Convention and is crafted in a manner that will definitely lead to the cessation of the bombardment, though the court didn’t specifically mention these words,” he said.
Lamola described President Cyril Ramaphosa as “courageous” for allowing the country to take the ICJ initiative.
“It was not easy, particularly with the commentary on various public platforms that it could affect bilateral or trade relations but he was brave enough, he allowed us to initiate the processes.”
Obed Bapela, the ANC deputy chair NEC sub-committee international relations said South Africa would lobby other countries to exert pressure on Israel to comply with the court order. “The plan will be executed through government, obviously in our discussion it’s for the president to take the matter to the AU now that there’s an AU meeting in February to canvass the number of countries that are there so that there's a collective voice of the AU when they are in the UN systems whether it’s human rights commission, those who are representing Africa in the UN Security Council that is meeting next week.
“The President has to phone those member countries that are in the rotational system to really push. Because there’s this veto power in the UN Security Council we will see if there is anyone with the guts based on debates and discussions and the outcomes because this court belongs to the UN so it recommends to the UN Security Council and the Security Council must then say if they defy their own court or what,” he said.