Global media interest in South Africa’s International Court of Justice (ICJ) case against Israel for possible genocide in Gaza was no surprise. The more long-term political, national identity and inter-state issues – considered by this essay – were of less immediate concern than the humanitarian crisis that featured in last week’s debate in the Hague.
Courageous journalists and officials of international relief organisations and the United Nations have been warning of a humanitarian catastrophe for many weeks. They were quoted extensively by South Africa’s legal team in an 84-page pre-hearing published brief and orally in court. Israel did not issue a brief before the 11-12 January 2024 hearing, but their presentations on the second day were widely and fairly reported, including in South Africa.
Under the terms of the Convention on the Prevention and Punishment of Genocide, SA maintained that genocide was at least “plausible” and the ICJ should as a matter of great urgency order “conditional measures” including the suspension of Israel’s military operations to prevent a humanitarian and human rights catastrophe.
Israel denigrated SA’s claims and demanded conditional measures be refused and the case dismissed as beyond the court’s jurisdiction and not “plausibly” genocide. The court’s president promised a decision “as soon as possible”, presumably in a few weeks, if not sooner. The court could approve all, some, or none of SA’s request for six immediate measures to restrain Israel, but a definitive ruling on the merits of South Africa’s case could take years.
Before speculating about the immediate political forces that may be swirling around the deliberations of the 15 ICJ judges from a diversity of nations, a brief reference to the evolving national identities of South Africa and Israel adds context.
That post-apartheid liberal-democratic South Africa chose to bring this case against Israel adds a poignant contrast, as SA had sought a civil solution to its social divisions, while Israelis and Palestinians have engaged in escalating deadly conflict.
Israel’s lawyers contend that a nation whose birth was a result of the genocide that killed some six million Jews — and the 1948 Genocide Convention seeks to prevent a repeat — would never violate that treaty. If SA’s request prevails, however, this would affirm a new degree of accountability to international law which even Israel cannot avoid.
Historically, both nations were settled by Europeans and imbued with similar sectarian national identities. But these were not primarily the “ethnic nationalisms” that became predominant in 20th-century Europe and that Michael Ignatieff describes in Blood and Belonging.
These two colonial nations acquired slightly more diverse identities — white nationalism in South Africa and Zionist religious nationalism in Israel. Both settler nations claimed to be liberal democracies. Those whose land was taken were restricted to “homelands” and other variations of apartheid.
South Africa’s 20th-century history is documented from a black perspective by historian Thula Simpson. Former Deputy Mayor of Jerusalem, Meron Benvenisti writes about the Israeli version of nationalism and apartheid in his 2021 monograph, “A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution”.
And Israel and South Africa are among the case studies in Mahmood Mamdani’s Neither Settler nor Native: The Making and Unmaking of Permanent Minorities.
A question of alignment?
At the ICJ, approval of SA’s urgent request for a restraining order against Israeli military operations in Gaza requires an eight-vote majority of the fifteen judges. Judges are presumed to issue rulings strictly according to the law, without political interference. The ICJ, however, is a UN institution and most ICJ judges will consult closely with their national governments, especially in a case as prominent and controversial as this one.
Many more UN members — especially in the Global South — have declared their support for South Africa than for Israel. This includes the 57 members of the Organization of Islamic States, plus over a thousand public organisations, according to a Turkish media report. Israel has fewer, but more powerful supporters, notably the US and its Western allies.
South Africa may already have six votes of the judges from countries that have declared their support: Brazil, Jamaica, Lebanon, Morocco, Slovakia, and Somalia. Uganda will remain a question mark, with an unpredictable autocratic leader.
Media reports suggest that the original four BRIC countries will support SA. But I discern only Brazil as China, Russia, and India have not publicly declared their positions. Russia ignored an ICJ ruling calling for it to cease military operations and withdraw from Ukraine. But Russia hosts BRICS in 2024 and may feel a need to back SA, but also win favour at US expense in the Global South.
China and India might face charges of genocide against their Muslim populations, but also have interests in not dividing BRICS and garnering goodwill in the Global South. India’s flourishing relationship with the Biden Administration might also be a factor.
Officially, the US says SA’s claim is “meritless”. It is, however, showing impatience with the aggressiveness of the Netanyahu regime’s hardline policies.
The American on the ICJ, court President Joan Donoghue, has a background that suggests she’ll consult with Washington before deciding. If she does support South Africa, it will likely be with the blessing of President Biden, which will be a huge signal he is serious about significantly reducing hostilities before the November election.
That will also be a signal to America’s allies with judges on the court, Japan, Australia, Germany and France. The EU has not declared its current position.
South Africa’s indictment of Israel under the terms of the genocide convention is moral, and politically bold. It condemns Hamas for attacking civilians but also Israel for its disproportionate response. A favourable World Court ruling on SA’s claim of “plausible” genocide in Gaza would require UN collective action to save civilian lives and suffering and restrict military operations in Gaza.
Whatever the court rules, South Africans, in the spirit of Nelson Mandela, are once again seeking peace with justice, this time on the world stage. DM
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What utter twaddle
It was vernal. You’ll notice that the ANC’s money woes seem to have miraculously cleared up. Ezulweni is sorted, the birthday celebration was big and the election coffers are topped up.
And what do you say about Iran the big supporter of Hamas? Yesterday the nobel prize winner of Iran who were jailed because of not wearing her head gear according to rules, have received further sentencing. More years in jail and also will now get 100 whip lashes. She and all the other woman in Iranian jails are going to die. Nothing is said about that. What a moral high ground you take
Whilst what is happening in Iran is grotesque what has your comment got to do with the content of this opinion piece?
that’s a rather ignorant reply given Iran is backing and pushing all of these conflicts, heck even Pakistan is retaliating against Iran
Ben you are distorting the facts again, Denise’s comment was not about Iran backing these conflicts hence my response. Pakistan attacked separatist militants in Iran. They were not retaliating against Iran.
Not all South Africans are in agreement with this, so don’t call this moral or Politically bold. There can be no sound unbiased judgement in this case.
It’s neither moral nor politically bold – it’s obscene; especially considering the source.
The anc has sold their souls and the country to the brutal dictatorships of Iran and Russia all in the name of greed and electioneering
I used to think that academics, even ones at transformationally captured universities such as Wits, evidenced a degree of independent thought but after reading this article – which I might add suggests the author is strikingly ignorant of the true history of the situation in the Middle East – I no longer believe that. One would have thought that an emeritus professor would no longer kowtow to the corrupt ANC government’s views but obviously this emeritus professor has been s0 deeply indoctrinated by the lemmings at Wits, he can no longer display any independent thought.
South Africa is being congratulated (in some circles) for the case it has brought the ICJ.
BUT… The ANC has made this decision and perhaps for this reason:
The ANC are close to banckruptsy and were almost pushed into liquidation recently which would have seriosly impacted their ability to contest this years elections.
So, our minister of foreign affairs visits Iran, then the ANC expresses solidarity with Palestinians and Hamas. Then hosts Hamas in late 2023 while pushing through a charge of genocide against Israel (before they have an opportunity to reply). In the meantime the R120 mil is quietly settled for the ANC. Join the dots. Iran has bailed out the ANC in return for the ANC running interfernce propaganda for Hamas/Palestine. So, far from a moral obligation taken on by the ANC it is rather about money and survival. The appplication to the ICJ cost R200 mil and the courtcase R1.4 bil so the taxpayers of SA have in effect contributed to the bailout of the ANC. Think this is nonsense? Check out what Magnus Heystek has to say about this
Predictably, commentators have rejected the article. Interesting that. No matter the expert, no matter the journalist, no matter the institution, people form their own opinions. Based on what? Whatever source favours their opinion, obviously. In this case, sources which support Israel and ignore that it is a settler-colonist project, an occupying power and apartheid state.
As South African’s we might have learnt from our experience of perpetrating or experiencing apartheid. But clearly many of us, to our collective shame, have not.
you are doing what you blame others of
South Africa’s political leadership is amongst the most vile, morally bankrupt and corrupt in the world. That they now presume to offer moral leadership to the rest of the world is an irony so rich as to beggar belief.
I initially thought the ICJ case was a brilliant move by the ANC. I then reread that sentence and realised it has been incidental misfortune – they managed to find a villain for the electorate to focus on (other than themselves). However, remember the last time a political party won popular support by blaming the Jews? Give you a clue: it was the 1930’s. And then I discovered this sequence: About 6 months ago an application was brought by a service provider who was owed about R 120 million by the ANC for the liquidation of the ANC. If they couldn’t pay, they can’t take part in the election. In October 2023, the minister of foreign affairs visits Iran. Soon after this visit we launch our ‘bold’ move to take Israel to the ICJ (which will cost about R200 million). And then just as quickly settle the liquidation application with R100 m and the ANC states that their financial woes are over. For those unable to read between the lines: SA is now owned by Iran. I’m relieved that the rabid antisemitism was driven by money and not something more meaningful. Wonder if the ANC have considered asking America to counterbid? After all, we are clearly for sale, and that means the highest bidder wins.
Stremlau is a paid-up card carrying member of the ANC. What else would he say?
Also surely Stremlau is not suggesting that Judges vote politically!! If so this emphasizes what I have always thought about him as being biased.
South Africa bought by Iran to do its dirty work
The ANC government has all but bankrupted the country and damaged the lives of the bulk of its peoples. It is absolutely obscene to see this expansive set of expensive lawyers spending millions of Rands of public money on moral posturing of dubious validity. A holocaust is the industrial butchering of six million men, women and children that the Jewish people suffered inWW2. Sad as the civilian casualties of war in Palestine is, there are many more suffering in Ukraine and other ongoing conflicts worldwide but these are not holocausts in any real sense of the word.
If you are utterly convinced that the malevolent intent exists to justify the accusation of Genocide – if you have unshakeable conviction that the crime exists and the charges will stick, then by all means be guided by your certainty and let the law run its course and pass judgement. But if you are not, if you have a shadow of a doubt, then engage in a different process first. Call out disproportionality. Call out murder and rape and burning. Don’t just footnote them for due process. Call out methods of warfare. Agitate and insert and vocalise and manipulate for dialogue. Put yourself in the same room as both parties and MEDIATE. Seek to understand and foster understanding. Seek common ground. Look for avenues to compromise and de-escalation that are palatable to both sides. Accept nuance. Accept complexity. Be bold and skillful and sensitive. Hold all individuals to account where responsibility and ownership are required. Start early, be active, be pro-active, be consistent, be ever present. Sanction, boycott, support, vote, voice, debate, listen, opine … do all of it … with the objective of bringing about the change you wish to see.
By entering the conflict late and firing your first salvo with a nuclear warhead, making your first meaningful intervention and diplomatic involvement with an accusation of the crime of crimes, understand that you have closed off the other avenues. You have written off diplomacy. You have taken a side unequivocally. You have alienated also the people on both sides who are themselves ambivalent about the side they find themselves on. When accused of the ultimate expression of evil and malevolent intent, you leave your accused no choice but to adopt their most aggressive defensive stance. You offer no middle, no way back, out or sideways. Is this really political courage, or just politics as usual? This does not invoke the wisdom, the bridge building and encompassing attitude and spirt of the great Nelson Mandela. I do believe he would have spoken to people and sought common ground, and not jumped to this unilateral judgement that will alienate two nations for a long time.
If your charges don’t stick and the court you approach judges that facts have been curated and distorted and due process not followed, then you risk having your provisional measures denied too. Such a waste of the opportunity of being the rainbow nation, where as a Jew I work and thrive side by side with Muslims and it has felt until recently that a door was open to be bridge builders and peace-makers. But people must shout, oh they must.
Genocide. Apartheid.
Ask the 20% of Israeli citizens who are Muslim Arabs if they live in an apartheid country. Where every citizen enjoys full political representation. Full freedom of religious expression. Freedom of gender orientation. Freedom of speech. Equality before the law. Equal access to education and healthcare. Where Muslim Arabs are members of parliament, supreme court justices and senior academics. Where on any given day you are as likely to be treated by a Jewish doctor or an Arab doctor in a hospital A&E.
A sovereign country is fighting what it perceives to be an existential battle. The enemy of the moment in Hamas is but an envoy of a far larger and equally malevolent force that would see Israel and Jews wiped from the face of the earth. It would most likely conduct genocide, given half a chance. Have we forgotten that a war is being fought above and below the ground in Gaza and armed, military combatants are falling on both sides? Have we forgotten the tens of thousands of rockets that have been fired indiscriminately into Israel? What untold damage and death they would cause it their INTENT was not thwarted by Israel’s ability to defend itself. If genocide is all about INTENT then what is the intent of these rockets if not to indiscriminately kill a group? Shall Israel be sanctioned for its ability to defend itself with the Iron Dome, or celebrated? Consider the civilian lives saved by this determination and ability to organise before answering that.
As a Jew (distinct from Israeli) I am prepared to accept the judgement passed down by the ICJ, and the label of perpetrators of Genocide that will be attached to my family and friends – peace loving, left wing, decent and caring people that they are – because it will at that moment become only a word, a label, stripped of all its meaning and gravity for me, forever. I will realise that it is impossible to be seen, heard or understood anymore in this world of absolutes and virtuous shouting. It will not bring back anybody. It will not change anything. It will polarise, distort, divide and vilify. It will oversimplify and discourage the hard work of truly meeting in the middle.
I honestly cry for all the unnecessary suffering that this and all other human conflicts bring. But whatever the intentions, I do not think this case for genocide will help anyone, and quite possibly will achieve the opposite.
One last comment, Mr Stremlau … you say “Those whose land was taken were restricted to “homelands” and other variations of apartheid”. This is also a distortion I think?
In 1948 the opportunity existed for both Jews and Arabs in the region to form and build states. Jews accepted this and Arabs did not and war ensued. But for the outcome of that bitterly fought war, the notion of apartheid and/or genocide may have been the mirror image of what is alleged today. But for succeeding in defending themselves, the Jews of the newly formed state of Israel would have been wiped from the map. Between 1948 and 1967, Jordan controlled the West Bank and Egypt controlled Gaza. Again the opportunity existed for some 20 years to decide a way forward for the occupants of that land, whether as independent states or absorbed into the greater Arab world. (Let us remind ourselves that even countries such as Jordan are modern inventions and spun off from the division of land by colonial powers. Jordan only became fully independent in 1946). Nothing was made of this opportunity and in 1967 the Arab world once again attacked Israel and once again were it not for winning that war, Israel would no doubt have been wiped off the map. It is this aggression and (by today’s diluted definition of word) genocidal intent to wipe out Israel that leads to the current situation of “apartheid” which amounts to a lack of other reasonable options to ensure the safety of the state of Israel from malevolent forces by other means. All offers over the years to normalise this by establishing a Palestinian state have been rejected. Wars have been fought, none of which have been started by Israel. The intifadas have claimed many lives and fostered an atmosphere of the fear of terror through the indiscriminate suicide bombing tactics employed. Rockets have rained down for years with barely an objection from anyone. And then October 7. How else do you hold this threat at bay, pray tell? Or are we just saying, Jews, pack up and go? Because if we are, if this is the way that opinion is swinging, then that is also fine by me. Saying it clears the air. It removes the ambiguity. It sets the real boundaries of the situation and defines it for what it truly is, which is an existential battle to survive by any means. To “genocide or be genocided” to further make a mockery of the word that has lost its meaning.
John. Please look at South Africa’s ‘friends’. The pariahs of democracy. You are judged by the company you keep. This case – such a moral act. Because that is what our ANC leadership has demonstrated on an ongoing basis for its own citizens – morality. Your article shames you.
I believe you have expressed brilliantly what the majority of world Jewry would say. Concepts such as Genocide and Apartheid have been agenda weaponized, their meaning stripped of moral clarity, and their real victims demeaned and re-victimized. The language of Tik Tok has reached the ICJ.
There is nothing in this case to indicate any concern that if it stops Israel from eliminating Hamas as a threat what then must be done by the international community about the genocidal intentions of Iran via its terror proxies. Indeed as barbaric was October 07 and tragic the loss of all lives has been in the ensuing war, it is only the prelude to the real conflagration looming terrifying large on the world stage. The prospect and scenario of a nuclear Iran being able to like-wise equip proxy terror groups goes way beyond the traditional MAD deterrent, and is anathema to Israel, as it should be to the West as it will not stop with Israel. China and Russia are allying themselves to Iran and the ideological geo-political alignment against the dominance of the USA and the West.
Everybody knows that as an existential imperative Israel cannot, will not, allow Iran to reach the nuclear weapon threshold.
Brilliant – I salute you Sir
Consulting their political masters suggests that the Law plays second fiddle.
And where is this Global South that only includes two BRICS countries
This is garbage and as usual the writer is happy to completely ignore the atrocities committed by Hamas and indeed not only by Hamas terrorists but also by Palestinian civilians who followed the terrorists and attacked unarmed Israelis! That is the nature of Palestinians and their armed wing, Hamas!
I’m very frustrated by the and moderation system on DM. I have submitted a number of comments and responses on various matters and completed the moderation exercises requested in what I believe, to been done in an objective fashion. My comments (I believe) were presented in intelligent, objective and unemotional way. Today, not a single one of my comments has been approved and posted. Does anyone else here have the same problem? I am annoyed. As a paying member of DM I would like my voice to be heard. If this continues I will cancel my monthly voluntary subscription and remain a free reader.