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MIDDLE EAST CRISIS OP-ED

South Africa vs Israel — unpacking the legal victory

South Africa vs Israel — unpacking the legal victory
Illustrative image | (Photos: Rawpixel | Ahmad Hasaballah / Getty Images | David Silverman / Getty Images)

The naysayers have been silenced. South Africa is vindicated. South Africa took a stand against Israel in the historic case of South Africa vs Israel before the International Court of Justice in The Hague to stop a 75-year genocide being perpetrated against the Palestinian people. In the face of incontrovertible evidence, the ICJ, in a mostly 15-2 vote, ruled overwhelmingly in South Africa’s favour. More importantly, the ICJ affirmed the plight of the Palestinian people who have suffered so much for so long.

While the International Court of Justice (ICJ) provided interim relief on Friday in the case brought against Israel by South Africa, it is likely to continue for several years before the full merits of the case of whether Israel is perpetrating genocide against the Palestinian people are decided with finality.

For now, the ICJ has held that there is plausible evidence that a genocide is unfolding against the Palestinian people and has ordered provisional measures to prevent this from continuing.

The ruling was read by a judge nominated to the ICJ by US – ICJ president Joan Donoghue – a noteworthy development in and of itself considering the US’ historical, unqualified support for Israel despite its ongoing dispossession, occupation and oppression of Palestinians in the West Bank and Gaza.

Procedural hurdles

In a well-structured ruling, the ICJ first dealt with the procedural hurdles.

The first hurdle was put up by Israel, in respect of whether South Africa has jurisdiction to institute the case. Article 9 of the Geneva Convention of 1948 allows a party to initiate a case if there is a dispute on a point of law or fact.

Parties must hold fairly, opposite views. This is an objective test focusing on the substance, not the form, of the statements. The ICJ relied on South Africa’s statements made in various multilateral and bilateral settings as well as a note verbale to Israel alleging genocide. The ICJ also noted Israel’s response refuting accusations of genocide as well as referring to the allegations as “morally repugnant”. The court held that these, “clearly opposite views” demonstrated prima facie the existence of a dispute.

Read more in Daily Maverick: Israel-Palestine War

Second, even though Israel did not raise the issue of the standing of South Africa to initiate the case, the ICJ thought it necessary to address this point. 

The significance of this must not be overlooked.

The ICJ held that South Africa did have standing and noted that each state party to the convention has an interest in compliance with the convention in any given case. The ICJ said: “[A]ny State party to the Genocide Convention may invoke the responsibility of another State party, including through the institution of proceedings before the Court, with a view to determining the alleged failure to comply with its obligations erga omnes partes (towards all or towards everyone) under the Convention and to bringing that failure to an end.”

A plausible case of genocide has been made out by South Africa

For South Africa to succeed in the interim case for provisional measures it had to make out a case that it is plausible that a genocide may be occurring in Gaza and, that there is a link between the rights requiring protection and the measures that are sought.

The ICJ held that at least some of the acts referred to by South Africa may be genocide.

Article 2 of the convention defines genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. These are:

  • Killing members of the group;
  • Causing serious bodily or mental harm to members of the group;
  • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  • Imposing measures intended to prevent births within the group; and
  • Forcibly transferring children of the group to another group.

A determination of intent requires an inquiry into, first, expressions of special intent to commit genocide by those in authority (dolus specialis), and second, whether the acts perpetrated against the Palestinian people fall within the acts referred to in Article 2 of the convention.

The South African case highlighted the many statements of genocidal intent made by the Israeli government and army officials. The ICJ ruling mentioned Defence Minister Yoav Gallant’s reference to Palestinians as “human animals”. The ICJ correctly accepted this dehumanising rhetoric, as well as other statements, as evidence of genocidal intent.

Read more in Daily Maverick: ICJ ruling in SA’s genocide case against Israel lauded as ‘historic’ and victory for human rights

There is a case under way in the US that seeks to hold the Biden administration accountable for its role in aiding and abetting the genocide in Gaza. The evidence being provided by a group of genocide experts in the case notes: “Perpetrators of genocide rarely express their intentions as directly as Israel state leaders and senior army officers have done after October 7.”

Unlike South Africa, Israel did not make its submissions, or the evidence that it relied on, available to the public. In any legal matter, a case is only as good as the evidence that supports it.

South Africa meticulously put forward a credible case of the “total siege” on all aspects of Gazan life so as to meet the Article 2 threshold. It highlighted the deprivation of food, water, fuel and urgent medical supplies which it was alleged is calculated to inflict conditions on Palestinians to bring about their physical destruction. Currently 93% of Palestinians in Gaza are experiencing crisis levels of hunger. The use of carpet bombs in one of the most densely populated places in the world was emphasised as evidence that Israel was not just targeting Hamas military operatives, but has as an objective the wide-scale destruction of the Gaza strip and its inhabitants. 

South Africa’s case was supported by evidence from the various UN bodies and humanitarian agencies operating in Gaza and the evidence was made available to the ICJ and public for scrutiny.

The case of Israel is that it has the right to defend itself following the events of 7 October and that, in situations of urban warfare, civilian casualties may be an unintended consequence of the lawful use of force against military objects, and this does not constitute genocide. It further dismissed the submissions by South Africa as to genocidal intent as “misleading at best”. Unlike South Africa, Israel did not make its submissions, or the evidence that it relied on, available to the public. In any legal matter, a case is only as good as the evidence that supports it.

The ICJ dismissed Israel’s defence and in doing so the court articulated in detail the devastation resulting from Israeli actions in Gaza. Today, more than 26,000 Gazans have been killed. More than 75% of the deceased are women and children and more than 63,000 injuries have been reported. More than 1.7 million Palestinians have been displaced and more than 360,000 homes damaged and destroyed. Essential infrastructure, such as schools, universities, churches, mosques and hospitals, has also been destroyed.

Thus, the ICJ held that “the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible”. Furthermore, the ICJ held that there is a link between the rights which need protection and the provisional measures being requested.

A sceptical view is that any other conclusion as to the plausibility of a genocide would have rendered the ICJ moribund. A more optimistic one is that, amid this humanitarian crisis, the ICJ has risen to the moment and international human rights law has prevailed over politics.

The risk of irreparable prejudice and urgency

The ICJ held that it could order provisional measures only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights claimed. This condition of urgency is met when the acts likely to cause irreparable prejudice can “occur at any moment”.

The ICJ noted many factors as evidence of irreparable harm to justify a finding of urgency. Some of these are the constant bombardment of Gaza and that “nowhere is safe in Gaza”, statements from Israeli officials of the likelihood of the siege continuing for many more months, the collapse of the health system and the fact that 15% of the women giving birth in the Gaza Strip are likely to experience complications, potentially leading to an increase in maternal and newborn death rates due to the lack of access to medical care.

Provisional measures

The ICJ, having found that the conditions to provide provisional measures had been met, noted that it need not indicate provisional measures identical to those requested by South Africa.

The court, therefore, ordered Israel to:

  • Take all measures within its power to stop the acts set out in Article 2 and to ensure that the military does not commit any of these acts;
  • Take all measures within its power to prevent and punish the direct and public incitement to commit genocide;
  • Take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip;
  • Take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts. This is necessary to assess the merits of the main case; and
  • Provide a report within one month on the order of steps taken to ensure compliance.

The ruling is legally binding. The main difference between the order of the ICJ and South Africa’s request is that the ICJ did not require that Israel immediately suspend military operations in Gaza. Presumably, the phrase requiring Israel to take all measures “within its power” is to give Israel space for military action against Hamas, while allowing for humanitarian aid to enter Gaza. The lack of an order for a ceasefire has led some to claim that the ICJ ruling will have no real impact. 

International Relations and Cooperation Minister Naledi Pandor’s interpretation, however, is that the ruling effectively requires a ceasefire, in order for humanitarian aid to be delivered.

The potential implications of the ruling

The symbolic value of the ICJ case as a moral victory is immense. 

Proponents of Palestinian self-determination will seek to leverage the ruling with the ultimate objective of realising the decades-long struggle for Palestinian statehood.

State parties are also potentially duty bound to impose sanctions on Israel should it continue to perpetuate acts of genocide against Palestinians.

The prosecutors of the International Criminal Court (ICC) have been criticised for failing to act against individuals alleged to be perpetrators of war crimes against Palestinians. It is likely that the ICJ’s ruling will increase the pressure on the ICC prosecutors to act expeditiously against individual Israeli political and military officials responsible for war crimes. 

Nothing precludes the ICC from pursuing similar investigations against Hamas leaders and military operatives for alleged war crimes committed on 7 October 2023.

As noted, the unsolicited decision by the ICJ ruling to emphasise the principle of erga omnes partes is significant. It has now been explicitly established that all states parties to the convention have a duty to prevent a genocide against the Palestinian people.

Read more in Daily Maverick: SA’s genocide case against Israel reverberates on diplomatic front, with special resonance in Germany

This means that when the ICJ ruling is referred to the UN Security Council to be enforced, the US would be undermining the international rule of law should it once again veto another Security Council resolution in respect of Israel’s actions.

State parties are also potentially duty bound to impose sanctions on Israel should it continue to perpetuate acts of genocide against Palestinians.

On the same day the ICJ ruling was delivered, a federal court in Oakland began hearing arguments in a lawsuit accusing the Biden administration of failing to prevent a genocide in Gaza. The case was initiated by the Center for Constitutional Rights on behalf of two Palestinian organisations and eight Palestinians living in the US. Several human rights organisations, including in South Africa, are supporting the case which seeks to interdict the US government from providing military funding and technologies and diplomatic support to Israel. The ICJ holding in respect of the duties of state parties in terms of the convention could well have a bearing on this case too. DM

Dr Faranaaz Veriava is a senior lecturer in the University of Pretoria Law Faculty, and the head of SECTION27’s Education Programme.

Gallery

Comments - Please in order to comment.

  • Gordon Cyril says:

    For a law lecturer to have omitted the requirement for Hamas to immediately release all the hostages, makes it clear as to the insidious bias of this article given this being the genesis of the actions arising from Hamas’s savage actions on 7 October.

    It’s also noteworthy that the writer refers to these actions by Hamas on 7 October as being “alleged” war crimes notwithstanding the overwhelming evidence. I think we can see the pattern here.

    The mere tabulation of what the ICJ stated does not render this article credible other than to ignore that in effect outside of requiring Israel to be “careful” and for the hostages to be released (ignored in the article), not a lot is changed from what is happening. Israel continues to defend itself as is its right.

    Finally within the past day or so, shocking evidence has emerged dating back to 2015 at least of UNWRA complicity in the Oct 7 attacks and beyond to the extent that multiple countries have suspended aid to Gaza.

    Its worth noting that the ICJ referred UNWRA as part of its “credible” evidence in making its rulings.

    This is far from over and SA should be extremely cautious as to overreach.

    • Willem Boshoff says:

      Interesting to note that the 2 biggest funders of UNWRA (before the latest allegations) were the US and Germany, who provided more than half the $1.17bn funds in 2022. European countries and the EU dominate the remaining funding, with Arab and other nations providing less than 20% of the funds. Yet we have to continually hear of the West’s bias towards Israel and hatred of Palestinians. Talk is cheap; show me where your money goes.

    • JP K says:

      Genocide is perhaps one of the most evil things humanity can ever do. There is no condoning it. There is no excuse for it. And Israel stands accused of committing genocide.

      Do you really think that this is about the hostages? Do you really thing that you can secure the release of hostages of unknown whereabouts by bombing Gaza to the stone ages? Even domestically Israli’s are protesting outside Netanyahu’s home. Yet here you are condoning actions of a country standing accused of the most evil of crimes.

      The question of hostages comes up all the time. Shall we start with the massacre that occured in the first occupation of Gaza in 1957? How about when it was retaken a few years later. What about political prisoners?

      Do you really think this is about Hamas? Mark my words, this Hezbhollah is next. Violence must be employed because that is the only way to pacify (read crush the spririt of) an occupied people.

      It seems it doesn’t matter who writes about this unfolding carnage. Unless the hostages are mentioned the story is biased. Everything is permissible when Hamas is involved. Including genocide. Israeli spokesman Eylon Levy, when asked if they would abide by ICJ orders first reminded listeners that they were one of the first signatories to the convention and then refused to entertain the question since he refused to deal with “absurd hypotheticals”. Well, here we are. The ICJ found that there is a plausible case. Which you defend. Shame.

  • Spin much?
    Restated, the ICJ ruled that
    – There is no cease fire
    – Israel has to (continue to) document that its not committing genocide
    – Israel has to (continue to) allow humanitarian aid in
    The ONLY thing that Israel has to do that its not doing is reign in the crazy ministers who keep saying stupid stuff
    When Russia was taken to the Court, it ruled that Russia must stop its attacks. Israel, facing no such order, is a clear sign there isnt enough evidence for the Court to believe the false genocide charges.

  • Amadeus Figaro says:

    Risk of genocide is not the same as genocide taking place

  • Steve Du Plessis says:

    Not much of a victory. SA asked for a ceasefire. No ceasefire per the court decision. SA lost. Now let’s focus on fixing South Africa instead of being Iran’s plaything at The Hague.

  • Angus Walsh says:

    I’m sorry but this a disappointing article with a narrow and frankly misleading narrative.
    I expect better from this media organisation. South Africa achieved virtually nothing but managed to alienate themselves from the west for the purposes of pandering to the Iranian government.

  • Mr OK says:

    The word “hostages” does not appear once in this article.
    This is a very one sided unpacking of the verdict. This definitely not an objective piece of journalism.
    No Ceasefire was granted, which was certainly the main objective of the SA’s proxy backers in this case. Hardly a victory.

    • jcdville stormers says:

      Agree,totally biased article

    • JP K says:

      Curious. How on earth do you arrive at the conclusion that there isn’t enough evidence for the court to believe the false genocide charges? Have you read the order? But here’s snapshot (and yes. Hostages must be released. You know international law should be abided by which Israel has indicated it would not do – not sure if they’ve changed their tune recently though.):

      “The Court recalls that, in order for acts to fall within the scope of Article II of the
      Convention… the intent must be to destroy at least a substantial part of the particular group. That is demanded by the very nature of the crime of genocide … blah blah numerous examples of indiscriminate violence and incitement to genocide … In the Court’s view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible”.

      FYI, the court has not ruled in every genocide case that there should be a ceasefire. But that’s neither here nor there. Do you agree that genocide should be prevented or do you want to make excuses for it? Because you can do a better job by just going and check Israel’s handy little explainer: “The War Against Hamas: Answering Your Most Pressing Questions”. Because you know, why would a zionist Apartheid state whose military actions have all the characteristics of genocide lie?

  • Roeland Bodart says:

    What about the hostages?

  • Help Me Understand says:

    No, the naysayers have not been silenced. Israel is in fact the (more) vindicated party. The ICJ recognises the right of Israel to conduct a war to defend itself from and remove an enemy that carries out unspeakable atrocities on its citizens. It requires this to take place within the boundaries of international law. Israel is required to submit itself to the scrutiny of a court whose jurisdiction it supports and respects, and this will take place in spite of extreme challenges. The ICJ also requires Hamas to release Israeli hostages, the continued holding and abuse of whom ensures that the war will otherwise continue. That is a significant victory for Israel, and perhaps even a defeat for South Africa, who’s relative silence on the matter of the hostages suggests a certain sympathy with the Hamas dungeon masters.

    From a level of disbelief at the one-sidedness of one after another DM articles, I now don’t expect anything better. Just from the summary paragraph of the above piece:

    “to stop a 75-year genocide” … we have leaped from this being a case to investigate whether or not genocide may be taking place as a result of Israel’s response to the Hamas attacks of October 7 … to a foregone conclusion of a 75 YEAR ONGOING GENOCIDE? So, genocide was even taking place (in Gaza presumably) when it fell under Egyptian control. A mind-blowing assertion, just casually slipped in.

    “Overwhelmingly in South Africa’s favour” … an order of ceasefire may have implied a moral or legal judgement, a conclusion that some crime was presently being committed. Everything else is just statements of the obvious really. The main accusation, that of genocide, is now being contemplated and any claim of defeat or victory is extremely premature. What happened to the concept of innocent until proven guilty? The only order that could be linked to the cessation of an existing action and hence termed a “victory” would have been an order of ceasefire.

    “The ICJ affirmed the plight of the Palestinian people who have suffered so much for so long” … The suffering of Palestinian people is not for debate, it is self-evident. 75 years after being offered to establish and build an independent state, they are still living in permanent limbo, ruled by thugs and thieves, pawns in a game that has no acceptable outcome outside the destruction of Israel from the river to the sea. How must it feel to be a 4th generation “refugee”? What does it even mean that there are “refugee camps” for Gazans, inside Gaza? To apportion blame for the current fate of the Palestinian people on Israel alone, whitewashes and over-simplifies a complex history, littered with lost opportunities, and largely fuelled by the inability of the Arab world to accept the existence of a Jewish state in the region, as well their own indifference to the fate of the Palestinian people.

    The Palestinians have actually had numerous opportunities to create an independent state, but have repeatedly rejected the offers. The following summary I acknowledge is largely lifted from a response by a different author. I would really ask for some introspection before continuing to claim 75 years of genocide, or drawing parallels between the South African apartheid of Verwoerd, and the dynamics that have shaped the Middle East.

    In 1937, the Peel Commission proposed the partition of Palestine and the creation of an Arab state.

    In 1939, the British White Paper proposed the creation of a unitary Arab state.

    In 1947, the UN would have created an even larger Arab state as part of its partition plan.

    The 1979 Egypt-Israel peace negotiations offered the Palestinians autonomy, which would almost certainly have led to full independence.

    The Oslo agreements of the 1990s laid out a path for Palestinian independence, but the process was derailed by terrorism.

    In 2000, Prime Minister Ehud Barak offered to create a Palestinian state in all of Gaza and 97 percent of the West Bank.

    In 2008, Prime Minister Ehud Olmert offered to withdraw from almost the entire West Bank and partition Jerusalem on a demographic basis.

    In addition, between 1948 and 1967, Israel did not control the West Bank at all. The Palestinians could have demanded an independent state from the Jordanians and Egyptians. On the contrary whilst Jordan was in control Arafat said there was no longer a claim as it was no longer part of Palestine. Once it was back in Israeli hands it miraculously became disputed land again! This is one of many reasons Jews and Israelis are cynical.

    The Palestinians have spurned each of these opportunities. A variety of reasons have been given for why the Palestinians have in Abba Eban’s words, “never missed an opportunity to miss an opportunity.” Historian Benny Morris has suggested that the Palestinians have religious, historical, and practical reasons for opposing an agreement with Israel. He says that “Arafat and his generation cannot give up the vision of the greater land of Israel for the Arabs. [This is true because] this is a holy land, Dar al-Islam [the world of Islam]. It was once in the hands of the Muslims, and it is inconceivable [to them] that infidels like us [the Israelis] would receive it.”

    The Palestinians also believe that time is on their side. “They feel that demographics will defeat the Jews in one hundred or two hundred years, just like the Crusaders.” The Palestinians, Morris says, also hope the Arabs will acquire nuclear weapons in the future that will allow them to defeat Israel.

    In 2000, Israeli Prime Minister Ehud Barak offered to withdraw from 97 percent of the West Bank and 100 percent of the Gaza Strip. In addition, he agreed to dismantle 63 isolated settlements. In exchange for the 3 percent annexation of the West Bank, Israel said it would give up territory in the Negev that would increase the size of the Gaza territory by roughly a third.

    Barak also made previously unthinkable concessions on Jerusalem, agreeing that Arab neighbourhoods of East Jerusalem would become the capital of the new state. The Palestinians would maintain control over their holy places and have “religious sovereignty” over the Temple Mount.

    According to U.S. peace negotiator Dennis Ross, Israel offered to create a Palestinian state that was contiguous, and not a series of cantons. Even in the case of the Gaza Strip, which must be physically separate from the West Bank unless Israel were to be cut into non-contiguous pieces, a solution was devised whereby an overland highway would connect the two parts of the Palestinian state without any Israeli checkpoints or interference. The proposal also addressed the Palestinian refugee issue, guaranteeing them the right of return to the Palestinian state and reparations from a $30 billion fund that would be collected from international donors to compensate them.

    “In his last conversation with President Clinton, Arafat told the President that he was “a great man.” Clinton responded, “The hell I am. I’m a colossal failure, and you made me one.”

    Arafat was asked to agree to Israeli sovereignty over the parts of the Western Wall religiously significant to Jews (i.e., not the entire Temple Mount), and three early warning stations in the Jordan Valley, which Israel would withdraw from after six years. Most important, however, Arafat was expected to agree that the conflict with Israel was over at the end of the negotiations. This was the true deal breaker. Arafat was not willing to end the conflict. “For him to end the conflict is to end himself,” said Ross.

    The prevailing view of the Camp David/White House negotiations—that Israel offered generous concessions, and that Yasser Arafat rejected them to pursue the war that began in September 2000—was acknowledged for more than a year. To counter the perception that Arafat was the obstacle to peace, the Palestinians and their supporters then began to suggest a variety of excuses for why Arafat failed to say “yes” to a proposal that would have established a Palestinian state. The truth is that if the Palestinians were dissatisfied with any part of the Israeli proposal, all they had to do was offer a counterproposal. They never did.

    Anyone that is against Israel should satisfy themselves as why this may have been.

    • Peter Holmes says:

      An informed and informative perspective, thank you. There is so much shouting, bias and emotion on the whole Israel-Palestine issue, including from the writer of the article on which you have commented.

    • JP K says:

      We don’t fight facists because we might win. We fight them because we must. We must do what is moral.

      As for 75 year genocide you take it as self evident that that is ridiculous. Help me understand. Because my understanding is that genocide is a process. And if you go back to the birth of Israel and the process of ethnic cleansing and fast forward to today, where Israel plausibly is committing genocide this seems perfectly consistent with that notion.

      Look a lot of what you say is worthy of a proper response – only because it’s just a boring trope to anyone that doesn’t conflate history and propaganada But how you make lengthy posts is your little secret. So I’ll necessarily be brief.

      “The Palestinians have actually had numerous opportunities to create an independent state, but have repeatedly rejected the offers.”

      Here’s a simple test. Would you accept the offer. Suppose you were living and then suddenly found yourself dispossed, your village razed? Would accept an offer that meant key issues in international law like the right of return was ignored? Or that Jerusalem become the undivided capital of Israel? Would you accept an unviable cantonised state? Would you accept offers that left out the best parts including water resources? The detail of what was offered is omitted.

      Let’s also look at the internationally agreed upon Peaceful Settlement of the Palestinian Question resolutions which Palestinians have accepted and which Israel rejected. Oh. That doesn’t count. Why?

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