Much-needed action for a long-suffering people and against gross impunity

South Africa’s decision to approach the International Court of Justice (ICJ) to seek a provisional ruling on whether Israel’s military action in Gaza amounts to genocide won’t immediately end the war, but it could be a crucial step on the path to peace.

On the other hand, if the justices decide South Africa doesn’t have a case, it could embolden the Israelis to extend their aggression, resulting in more deaths — in addition to the 22,000 people who have already lost their lives in the conflict. Either way, the South African strategy comes with risks and potential rewards.

The ICJ action will once again ignite tension with the US and the EU. While both have warned the Israelis that the indiscriminate killing of Palestinians is unacceptable, they have nonetheless argued that Israel is prosecuting a just war to counter the Hamas threat, as demonstrated by the attacks on Israeli settlements in which 1,200 people died in the early hours of October 7.

However, South Africa is being applauded by like-minded countries horrified by Israeli aggression and impunity, who see the referral as evidence of an emerging global moral compass and a rejection of gross injustice.

A decision by the court on the likelihood of genocide will be a vindication for the government. It will also be an indirect endorsement of a more activist foreign policy that has seen the government take a controversial stand in the Russia-Ukraine war. In that instance, South Africa’s leanings towards Russia’s Vladimir Putin as a Brics partner earned it the wrath of the West.

The Palestinians must not be forgotten, and South Africa’s actions will show muchneeded solidarity with a long-suffering people.

The Israelis will no doubt argue that while the death toll is high, it is necessarily so because Hamas embeds itself in the civilian population. They will also probably argue that the requisite genocidal intent cannot be proven, especially as the Israeli Defense Forces (IDF) issued thousands of warnings of their impending attacks.

However, declaring a genocide dispute in the ICJ, rather than seeking prosecution for war crimes at the

International Criminal Court (ICC), also based at The

Hague, is something of a masterstroke.

Israel isn’t a member of the ICC and disputes its jurisdiction on the basis that Palestine isn’t a sovereign state, and thus could not be a signatory to the Rome Statute that established the court. Also, the ICC mainly prosecutes individuals for war crimes; there is no chance Israel or the US would allow Israeli Prime Minister Benjamin Netanyahu to be dragged through that court.

However, Israel is a signatory to the UN Genocide Convention, from which the ICJ derives its mandate. For that reason, instead of ignoring the case brought by South Africa, the Jewish state has indicated it will participate in the hearings on Thursday to prevent the court from ordering it to cease the fighting in Gaza.

Public opinion is divided on whether the ICJ has the power to order Israel to cease hostilities should it find that genocide is possibly being committed. Francis Boyle, an international human rights lawyer, who won two requests at the ICJ under the Genocide Convention for provisional protection on behalf of the Republic of Bosnia and Herzegovina against Yugoslavia in the 1990s, believes South Africa has a winnable case. But he is unsure whether a provisional ruling from the ICJ would stop the Israeli military action, given that Yugoslavia resolutely ignored the court’s findings in that regard.

Be that as it may, South Africa has committed itself to this noble cause and must see it through. The ANC has taken a hard line against Israel in favour of the Palestinians in the past. The South African government has been less forthright, perhaps because the issue involves relations with a powerful state with even more powerful backers. Its claim to be able to act as an honest broker in disputes around the world has therefore been called into question.

South Africa has nailed its colours firmly to the mast of the Palestinian cause, and if our approach to the ICJ can in any way lower the temperature and prevent more pointless deaths, it will have been worth the effort.

South Africa is being applauded by like-minded countries