MIDDLE EAST WAR ANALYSIS
South Africa’s World Court move increases pressure on Israel to end war in Gaza
Given the ‘extraordinary urgency’ of the situation in Gaza, South Africa has asked the court for a quick hearing aimed at getting the court to call on Israel ‘immediately to halt all military attacks that constitute or give rise to violations of the Genocide Convention’.
South Africa’s referral of Israel to the International Court of Justice (ICJ) on the grounds that the country is contravening the Genocide Convention adopted by the United Nations in the wake of the Holocaust steps up diplomatic pressures to end the war in Gaza.
Unlike the International Criminal Court, established only in 2002 as part of the development of international humanitarian law since World War 2, the ICJ – more commonly referred to as the World Court – cannot try or jail individuals for crimes under that legal regime.
Set up as part of the United Nations system in 1945 as the successor to a court founded after World War 1, the World Court deals mainly with disputes between nations. Its judgments, which typically adjudicate disputes between states over borders, are binding. Although governments sometimes reject them, they have the effect of encouraging nations to settle their differences peacefully without going to war.
Smoke rises over the Gaza Strip, as seen from the Israeli side of the border on 8 January 2024, as Israel extends its ground offensive into densely populated neighbourhoods in the central part of the territory, forcing a fresh wave of displacement to the south. (Photo: Amir Levy / Getty Images)
Its best-known case in southern Africa is that launched by Ethiopia and Liberia in 1960, which challenged South Africa’s rule of the then South West Africa (now Namibia). Control of what had been a German colony before World War 1 was handed to South Africa under a League of Nations mandate after Germany’s defeat in 1918.
In the first phase of the case, ending in 1966, South Africa successfully challenged the right of Ethiopia and Liberia to bring the case — the casting vote of the Australian president of the court being decisive. But the challenge prevailed in 1971, when the court found, to quote a summary, “that the continued presence of South Africa in Namibia was illegal and that South Africa was under an obligation to withdraw its administration immediately”.
Moreover, the court added: “Members of the United Nations were under an obligation to recognise the illegality of South Africa’s presence in Namibia … and to refrain from any acts implying recognition of the legality of, or lending support or assistance to, such presence and administration.”
Read more in Daily Maverick: Israel-Palestine War
Although South Africa rejected the judgment, it helped build the international pressure which produced a UN Security Council resolution in 1977 which, supported by the Western powers, eventually led to Namibia’s independence in 1990.
A member of South Africa’s legal team in the case against Israel, Professor John Dugard, is the country’s principal living expert on the South West Africa case and the World Court. He was a leading academic in the legal struggle against apartheid, and in 2015 he argued that the ANC’s demand that South Africa should pull out of the International Criminal Court was “defeatist, naïve and reactionary”. (The demand is not now being pursued by the SA government.)
The introduction of South Africa’s 84-page founding statement in its application to the World Court makes it clear in the first paragraph 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”.
‘Genocidal in character’
However, it goes on to say: “No armed attack on a State’s territory no matter how serious – even an attack involving atrocity crimes – can… provide any possible justification for, or defence to, breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’ or ‘Convention’), whether as a matter of law or morality.”
The application adds: “The acts and omissions by Israel complained of by South Africa are genocidal in character because they are intended 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…
“The acts in question include killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction. The acts are all attributable to Israel, which has failed to prevent genocide and is committing genocide in manifest violation of the Genocide Convention, and which has also violated and is continuing to violate its other fundamental obligations under the Genocide Convention, including by failing to prevent or punish the direct and public incitement to genocide by senior Israeli officials and others.”
Given the “extraordinary urgency” of the situation in Gaza, South Africa also asked the court for a quick hearing aimed at getting the court to call on Israel “immediately to halt all military attacks that constitute or give rise to violations of the Genocide Convention”.
It said the court should “order Israel to cease killing and causing serious mental and bodily harm to Palestinian people in Gaza, to cease the deliberate infliction of conditions of life calculated to bring about their physical destruction as a group, to prevent and punish direct and public incitement to genocide, and to rescind related policies and practices, including regarding the restriction on aid and the issuing of evacuation directives”.
Then South African President FW de Klerk in discussion with Namibia’s first president, Sam Nujoma, in Namibia on 31 March 1990. (Photo: Media24 / Gallo Images)
Arguing that Israel is acting with “genocidal intent”, the application cites language used by Israel’s prime minister, president and defence minister.
It describes Prime Minister Benjamin Netanyahu’s reference to “a struggle between the children of light and the children of darkness, between humanity and the law of the jungle”, as constituting “a dehumanising theme”. It says President Isaac Herzog has made clear that Israel is not making distinctions between militants and civilians in Gaza, quoting a statement at a press conference: “It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware, not involved. It’s absolutely not true … and we will fight until we break their backbone.”
It went on to cite Defence Minister Yoav Gallant as saying that Israel was “imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals and we are acting accordingly.” It also quoted Gallant as saying on separate occasions that he had “released all the restraints” and “removed every restriction” on Israeli forces.
Responding to South Africa’s application, the Israeli foreign ministry issued a statement saying: “Israel categorically rejects the outrageous South African blood libel and its appeal to the ICJ. South Africa’s claim lacks both a factual and a legal basis, and constitutes despicable and contemptuous exploitation of the Court.”
It added: “South Africa is cooperating with a terrorist organisation that is calling for the destruction of the State of Israel. The Hamas terrorist organization — which is committing war crimes, crimes against humanity and tried to commit genocide on 7 October — is responsible for the suffering of the Palestinians in the Gaza Strip by using them as human shields and stealing humanitarian aid from them.” DM
John Allen, a former managing editor of AllAfrica, previously served as communications director of South Africa’s Truth and Reconciliation Commission. His great uncle, a former Chief Native Affairs Commissioner of South West Africa, was an expert witness in South Africa’s defence of its case in the World Court.
It has already had effect , Israel President now denouncing statements from ministers that could be construed as incitement to genocide .
Other impacts already achieved from simply filing the case: Israel has reduced the number of troops in Gaza & reduced the scale of aerial bombing & artillery bombardment. It has given credibility to the use of “genocide” to describe Israelly actions & making US spokespersons twisting backwards to deny it. It have given some legitimacy to countries actions against Israel without the spurious claims of antisemitism. Etc
Shoh, you sound like a first class strategist and diplomat. I can almost assure you that the case has no bearing, at all, whatsoever, on Israel’s plans. The US might have some say, with pressure, but not this. Keep dreaming though.
Hahahahaha – good laugh
Yup, the whole Zionist edifice is falling apart. What a laugh.
Hardly
As always from Ben a carefully crafted argument taking into account all the facts and both sides of the situation – not.
None so blind as those who will not see- as evidenced by the vast majority of your posts
The solution is to do to israel what the world did to the apartheid south africa ,blockade and boycott, force them into submission
just like then, the US will continue to support the wrong side until it is no longer to their benefit. eventually the US will have enough support from other middle east / levant states and pull their support of israel.
I’m assuming you did not read my comment (below) of 09h56, and neither did Charles Butcher. You cannot force Israel into submission (whatever that means). Also, what do you mean by “eventuall”? A year, a decade? Israelis, and only Israelis will decide Israel’s fate. Netanyahu will be gone (voted out) soon enough but, I say again, the future of Israel will be decided by its citizens.
There’s international law which fortunately prevents Israel doing what it pleases, where pleases includes genocide and occupation.
The trauma Israel experienced as a result of the Hamas attack does not under international law permit it to enact a genocide. These laws exist precisely because of the horrors of WW2 yet Israel now wishes to mete this horror out on others.
It’s “citizens”?
I assume that does, in your eyes, not include the +20% non-Jewish ‘citizens’.
And I assume you also believe that the Palestinians living in Westbank and (maybe still) in Gaza Strip should / would have no sa in this matter??
South Africas government has a knack for choosing the wrong side, making the wrong decisions and ensuring that the people of SA get the worst of it. What a shame
For once I am in agreement with our government, if only we could see consistency now regarding the Russian aggression and the multiple conflicts and atrocities within our own continent
I agree with the action, not the intent. This is about scoring points, not ending conflict. It’s also to detract from Ukraine and SA’s support for Russia. It’s a cheap stunt with no moral foundation.
Any reaction or rejoinder from the South African Jewish Board of Deputies or Rabbi Warren Goldstein? It would be interesting.
I cannot support the SA state’s move. It’s a double standard – have we forgotten that they are supporting Russian war crimes and genocide in Ukraine? This is not about ethics or the right thing. It’s cheap points scoring, and Eastern Europe will suffer as a result. Consequently, so will we all. Putin is a much bigger danger than what’s happening in Israel. Let’s not forget that our state supports him and protects him.
I just cannot believe the naivety of the article’s headline and some of the comments here. I’ve said this before: read Israeli newspapers if you want to get a feel for what the average Israeli voter thinks and yes, (Israel being a democratic country) there is plenty of vocal opposition to Netanyahu’s policies. However, on 7 October 2023, Israelis (across the political spectrum) were traumatised beyond our undestanding. This is the nub of the matter. Israel will do what Israel (nobody else, least of all the ANC or the ICJ) feels is necessary to ensure no repeat of 7 October, and the survival of Israel.
Israel a “democracy? oh yes – South Africa before 1990 also was a democracy :-).
And Israel will do what it feels is necessary – they’ve already murdered + 23,000 humans. As a revenge for the brutal and atrocious murder of some 1,300 humans?
Come on – Bibi is trying to eradicate Palestinians in Gaza!
Agriculture minister Avi Dichter appeared on television last week to urge on the “Gaza Nakba”, as he described Israel’s current ground operation. Deputy speaker of the Knesset, Nissim Vaturi, tweeted that Israel should “Burn Gaza now, nothing less!” Earlier this month, the minister of heritage, Amihai Eliyahu suggested Israel could drop drop a nuclear bomb on the Gaza Strip.
Face the fact: Israel is actively involved in killing people not because of what they did but because of who they are! That is called “genocide”!
Israel is living next to a people who do not care about territory, merely the murder of Jews. They have given nothing positive to the world other than death and mayhem. Why do you think not one Muslim country has opened their borders to allow them in.
Why should other countries open their borders for Palestinians, they have lived there all the lives, why must they leave? You clearly support the Israel Plan to colonise the entire area including The West Bank and Gaza.
The ANC is being insincere. In its struggle to survive politically, it is trying to score political points with the Muslim community in the Western Cape for the 2024 elections. It hopes to win the Western Cape Muslim vote.
If this was a sincere effort on the part of the ANC to fight against genocide, they would have been vocal against Russia’s invasion of Ukraine and the wide-scale destruction of Ukrainians and innocent Russians, the Chinese ethnic cleansing, the Myanmar ethnic cleansing, the genocide in Yemen, the genocide in Syria, amongst many orders. Israel is an easy target, and the ANC knows it will curry favour with SA Muslims.
The ANC is quite okay with Muslims killing Muslims. Chinese killing Chinese. Burmese killing Burmese. Syrians killing Syrians. Yemenis killing Yemenis. Etc.
On this one you are wrong. The ANC has always supported the Palestinian cause. Thanbo Mbeki when he was president even attended Yasser Arafat’s funeral in Egypt.
You cite the SWA Namibia example. From the dates you supplied that took 24 years. And you state that countries regularly and routinely ignore the findings of the ICJ. And, irrespective of whether anyone supports Palestine or Israel in this mess, you really think that this brings pressure on Israel to end war in Gaza?
I think this is an important point. The first problem is the length of time these investigations take. However the court is being asked to provide a provisional ruling.
Regarding complying with orders, in other cases the ICJ has provided an advisory opinion (for example on the separation barrier/annexation wall) which is not binding. The ICJ is now being asked to provide an order which will be binding as Israel is a signatory to the convention. It can choose not to follow the order and there are indications that this will be the case. However, Israel then risks becoming a rogue state and there will also be consequences for other states in dealing with Israel.
In other words, since there is a plausible case of genocide which Israel needs to answer for and, despite its bluster, if there is any justice, it should be concerned.
Israel is surrounded by states whose declared policy is the destruction of the state of Israel and the killing of every Jew who lives there. Israelis know that the first battle they lose will be their last.
Israel has nuclear weapons. I can see no chance that Israel will stop until it achieves it’s objectives. By the way, Islam is the second-largest religion in Israel, constituting 1.707 million and around 18.1% of the country’s population as of 2022.
and there are 400 mosques in Israel.
Mike – in the long run Israel HAS to acknowledge that it has neighbours! And these neighbours have to see that it is to their benefit to accept Israel as a neighbour.
Sadly – Israel does not care for its neighbours – and also not for the majority population of Palestine, which it has been brutally oppressing for over 75 years!!
New INS survey of Palestinian-Arab citizens of Israel.
1. 46 % – Do not Feel comfortable speaking arabic when around Jews such as
public transport or next unfamiliar people.
2. 54 % – Do not feel comfortable entering Jewish or mixed localities for work or
run errands .
3. 76.5 % – Do not feel comfortable contacting relatives and friends in Gaza and
West Bank .
4. 71 % – Do not feel feel comfortable expressing oneself freely on social media.
I leave what this means to you to decide.
and what about Israeli Arabs?
Do you mean both Egypt and Jordan’s stated policy is the destruction of Israel? Rather than justify murder, get your facts right.
This is an old trope – kill all the Jews. That is not in Hamas’s charter. They want to take apart the Zionist Apartheid Occupier state and make one state free for all it’s people of all faiths. The South African solution.
We do not agree that they commit war crimes to achieve this goal, but Israel has committed far more war crimes.
Jews and Christians have lived in peace and safety in Palestine for over 1000 years under the rule of various Islamic governments (there were a few corrupt rulers who sometimes interrupted the peace). No reason it cannot happen again. Hey, there are Churches and Christians in Gaza, and they also want to be free.
Historically, Christians have killed Jews on a large scale and now the Zionists use violence against Muslim and Christians in order to ethnically cleanse the occupied territories of their non-Jewish population. Their openly stated goal is Greater Israel.
Utter nonsense – Hamas is VERY clear on their intent. Stop peddling the lies
Please quote from their charter.
SA politicians need to fight the “genocide” on home soil. People are dying daily in public hospitals due to lack of personal, medical care and medication. We have a huge problem with gang related activities, which claims innocent lives of children. We have enough problems on home soil…it’s speaks for itself
Not to mention the blatant xenophobia that the anc supports and promotes