The ruling of the International Court of Justice (ICJ) on Friday had a truly significant effect: the judgment and order represent a massive victory for the South African legal strategy and a devastating legal and more importantly, moral, defeat for Israel.
The judgment of the majority of the court negotiated some tricky legal terrain put up by the Israeli lawyers. In particular, the question of the jurisdiction of the court to hear the case, the test for granting provisional measures and the concomitant test for genocidal intent were key to the disposition of the case.
The Israeli argument regarding jurisdiction was not without some merit. As is evident from a reading of Gambia v Myanmar, the court in that case paid considerable attention to whether a dispute was properly before the court, with great reference to whether the parties had engaged properly before the referral.
However, as was evident from Friday’s judgment, the court was confronted with egregious levels of destruction and death directly linked to Israel’s military bombardment. It was not going to refuse to hear such a case on a purely technical basis. Of course, the idea that the ultra-reactionary Netanyahu government would have entered into meaningful engagement with South Africa to minimise their military campaign only has to be stated to realise how pointless such a potential exercise was.
The plausibility test has been the subject of differing criteria over the years; in particular, whether a fully blown prima facie case has been shown. In the South African case, the court examined the consequences of the war — 85% of the population of Gaza displaced, the cutting off of water and electricity by Israel, a total collapse of health facilities, a real danger of serious disease breaking out as a consequence, 15% of women giving birth in Gaza experiencing serious complications, the lifelong physical and mental scars thousands will carry as a result of incessant bombardment, to name some of the key factors, which include an estimated 25,000 deaths. Here lay the key.
The legal move the court made was to find on the basis of this set of factual findings that rights that are held by protected groups in terms of the Genocide Convention had been eroded/destroyed.
In this connection, Article 2 of the Genocide Convention is key:
“Article II: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”
These are wide protections to even parts of national, racial or ethnic groups.
Again, there was some debate about the test at the stage of a provisional order for genocidal intent. After all, in the Akayesu case and in Croatia v Serbia, the test for genocidal intent was brought into line with established criminal law principles.
The problem for Israel’s legal defence was that at the stage of provisional measures the bar is lower.
Notwithstanding the argument that the orders given to the Israel Defense Forces emphasised the importance of adherence to international law, the clear statements which fell within the Genocide Convention by the president of Israel, Isaac Herzog, the minister of defence, Yoav Gallant, (a truly inappropriate name!) and the minister of energy, Israel Katz, were coupled with the devastating facts on the Gaza ground to justify a conclusion of genocidal intent which sufficed at this stage of the proceedings.
It was predictable that the court would not grant a ceasefire as Hamas is not a party to the convention. For this reason, it may be incorrect that the order cannot receive compliance unless there is a ceasefire in that the order does not prohibit military action so long as it is in compliance with the convention. But that will mean that Israeli military action will need to be targeted to avoid civilian casualties, itself admittedly a high bar for Israel to negotiate.
One can foresee further disputes about whether Israel has complied with this part of the order and we may yet have Season 2 before the ICJ.
What is clear is that Israel should move to charge genocide inciters and that it must do far more to ensure that humanitarian aid flows into Gaza. Even Israeli judge Aharon Barak agreed to these parts of the order.
The upshot is that South Africa emerges with great credit as a defender of international law. The hope is that this commitment will be consistently applied.
Israel emerges under a cloud of moral opprobrium, the consequence of 56 years of oppression of Palestinian rights and for the past — albeit broken — period of 27 years having been led by a man who refuses to recognise Palestinian rights and has led increasingly reactionary governments which have brought increasing shame on Israel. DM
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I see no plausible credit for SA here without an inordinately elastic reading of the judgement. In the main, the ICJ merely reminded Israel of its genocide obligations, said it’s OK for SA to bring the case, and ordered Hamas to releases its hostages *immediately*, which part of the order regularly gets glossed over.
Off topic, but here goes FWIW because this article is likely to attract much commentary: DM’s communal moderation model is sorely deficient, especially when lots of people are commenting. On posting, a commenter is required to moderate at least three comments, but—and this is where things go awry—each comment needs at least three separate approvals, which means that if a commenter moderates only three comments, s/he’s effectively only moderating one because two other commenters are required to do the same.
Ergo, it’s no wonder that the moderation queue gets gummed up. DM either needs to increase the number of comments each commenter moderates, or relax its criteria for what gets sent to the moderation queue and allow some comments to be approved automatically, as was done in the recent past.
For now, commenters can and should opt to “Moderate more comments” as a stopgap while DM hopefully gets its act together. When posting, I moderate comments until I get a “No more comments” message in an effort to move things along, and it would help greatly if others did likewise.
You see no credit because you clearly do not understand the judgment. The ICJ did not “order” Hamas to release the hostages; it cannot do so, since it does not have jurisdiction over Hamas. It merely called upon Hamas to do so. And even if it had ordered Hamas to release the hostages, that is not inconsistent with rebuking Israel’s conduct of the war.
It is a waste of your breath by explaining this nicety to the likes of Con (very apt name) et al, who are only interested in scoring ‘points’ … as if it is a sports match! And the sheer hubris (inspired by America and Israel) of calling the ‘plastic’ interpretation, is to be expected from occupied minds .
Nice one, Redwood! An ad hominem worthy of celebration!
Allow me to present a true disciple of Elbert Hubbard, ladies and gentlemen: “If you can’t answer a man’s arguments, all is not lost; you can still call him vile names.”
I agree with you on the moderating system. Though I’m much more cynical. My longer comments have not been approved even though more recent posts have and therefore it’s not merely that they are in the pipeline – they’ve been rejected. On what grounds I don’t know as there’s no feedback. Since people can moderate as many comments as they choose, it would be easy for hasbara or Zionist sympathisers filter out opinions they don’t like. And we know hasbara are vocal on media.
Anyway, lovely quote. Very apt. Yet you choose not to respond to the argument against your interpretation.
The interpretation that the ICJ merely reminded Israel of its obligations is, curious. Do you have a source for that or is it your own interpretation. I suppose its not surprising. People supported Apartheid for decades, no?
Here’s a much more obvious interpretation. From the horse’s mouth as it were: “In the Court’s view, at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention”. i.e. genocide.
“Having the World Court say to the state of Israel that it is plausible that Israel is committing genocide will be heard by the rest of the international community, even if Netanyahu doesn’t want to hear it”. Indeed. Even if defenders of Israel don’t want to hear it.
It called on both sides to the conflict to abide by international law which includes release of hostages. Not an order.
Exactly what “argument against [my] interpretation” could you possibly mean, JP K?! Because until now, all I’ve had here is the unenlightened contumely of opinionated dolts and the manifest self-contradiction of a conceited and partisan would-be critic doused in Dunning-Kruger sauce.
Pinning one’s interpretation on the ICJ’s palpable hedging—“it is plausible that,” “appear to be capable of,” and similar—is a mark of desperation, of clutching at apparently salvageable straws, to float one’s preferred narrative. No court of law worthy of that title does so, except perhaps as preamble, caveat, or caution. There is demonstrably no unequivocal pronouncement of wrongdoing or condemnation to be found here. The judgement is a wishy-washy work of prevarication, designed to appear authoritative and firm and meaningful but, more importantly, to keep everyone kinda sorta happy by leaving enough room for anyone to put their favourite spin on it.
And I would have thought that that was patently obvious from the get-go, but I was clearly wrong in that regard. 🙄
“[R]ebuking Israel’s conduct of the war.”
And who clearly doesn’t understand the judgement? 🤡
By the way, your comment that “the ICJ merely reminded Israel of its genocide obligations” is hilarious. If an international court feels the need to remind you of your genocide obligations, that is not the win you seem to think it is.
I have been awaiting moderation for three days now. It seems that the moderators have the weekend off. I suggest that a better scheme would be for all comments to be posted automatically but that subsequent commenters can ‘flag’ comments that are untrue, uncivil, or inappropriate language, then the moderator can step in.
Paddy, I’ve been complaining to the DM re their commenting policy for two years. Undertakings that the policy is under review, but nothing happens. Nobody listens. Unlike News 24, senior editorial staff never engage with their readers. This too will fall on deaf ears, which is why I’ve cancelled my Insider subscription and the above average monthly contribution I used to make.
Ditto. DM’s comment process is deeply flawed. One man’s civility and factual information is another’s abuse and mendacity.
Some two years ago, I was chided by one Fran Beighton over some apparently “offensive” comments of mine that had elicited “complaints from our moderators.” Having kept a detailed record of when and where I had submitted which comments, I reviewed my comments. The two that had been deleted by DM related to (1) a case where I had had the unbridled temerity to correct a particularly thin-skinned journalist’s language use, and (2) an instance where I had questioned a DM writer’s integrity, based on some credible info in the public domain.
I dared challenge Ms Beighton with substantiation, and promptly had my membership revoked, presumably because of my cheek and total lack of abject subordination to Ms Beighton’s schoolmarmish authority.
So much for “Defend Truth.”
This kind of egocentric chest-thumping, power-asserting censorship convinced me that DM is much more interested in making nice-nice on its own peculiar terms than in free expression. The only restrictions that should apply to comments are the same ones that exist in law in respect of free expression. And moderation needs to be reactive as well. This would-be pre-emptive model is tosh.
Of course, it is their inalienable right as owners of this site to make any rules they choose, and if it means I get shot down again, then so be it because in my view, this sort of thing must be exposed.
The moderation method doesn’t work. My comments never get published while there are certain individuals who use bad language , demeaning comments and hate speech who get published every day, sometimes twice a day.
This quote is from the ending of an article in the Jerusalem Post by Amotz ASA-El on 12/1, “To blame anyone of genocide, one must be moral; but to blame a nation of Holocaust survivors of perpetrating genocide, one must be not just moral but morally impeccable.
“That’s not what your South Africa is, Mr. Ramaphosa.
“Overcast by a world-leading homicide rate of 41 murders annually per 100,000 people, your country is a nexus of human trafficking, drug dealing, arms trade, embezzlement, rape, robbery, carjacking, burglary, mugging, pickpocketing, and every other form of crime whether petty, organized, financial, or political. Corrupt to the bone, your land is a social tragedy and a moral hell.
“Now, the courtroom drama you have engineered will only make millions of foreigners tell you to first take care of South Africa before setting out to fix the rest of the world.
“You are in no position to preach anything to anyone outside your land, least of all humanism, least of all to the Jews.”
Nail solidly hit on the head!
Exactly!
And today , dropped to lowest score ever on the Internstional Corruption Index.
Everyone should be equal in the eyes of the law. Just because a nation survived a genocide does not mean they should be treated differently when accused of being a perpetrator themselves.
In many psychological studies it has been found that perpetrators of abuse have often been victims of abuse themselves. So … this should not surprise us. BUT in this case, the perpetrators of the original abuse have now joined the perpetrators in defending the current abuse ! How is that for ‘justice’ !
Totally agreed, it’s like Germany is trying to cleanse itself . Andre Swart (Defenders of apartheid and racism in south Africa) also falls on the same wagon as the German’s.
Have wondered about that myself. Clearly Jews were traumatised by the holocaust. And that’s not where it started. And anti-semitism is very real. But what Zionists have done and are doing is beyond shame. That they are stand accused of committing the very act that shocked the world is tragic.
I remember listening to Doctor Ruth give an interview once. She said that given her experience of the holocaust she dedicated her life to helping people in the way that she could (giving sexual health advice). And many like Norman Finkelstein, Andrew Feinstein et al. have shared similar sentiments. Never again can mean never again for humanity or never again for us and everyone else be damned.
By that standards you should also be hunted and shot if you kidnap old ladies and torture them even though you are a small useless community the world feels sorry for. If you want to start a war, dont cry when you get it.
Sorry, I do not understand your comment
“To blame anyone of genocide, one must be moral”
That is just on its face false? By this reasoning, the Soviet Union could not blame the Nazis of genocide?
“to blame a nation of Holocaust survivors of perpetrating genocide, one must be not just moral but morally impeccable.”
Why? The Afrikaners were put into concentration camps. So, by this reasoning, to accuse Afrikaners of having perpetrated apartheid one must be “morally impeccable”. But that is just surely not true. Whether apartheid occurred or not is a question of fact to be determined without reference to the identity of the accuser or of the (alleged) perpetrator. Ditto genocide.
It is what is known as inversion or sophistry ! The failure to get the court to “throw out” the case needs as much bluster as possible.
Well the ICJ was very clear in it’s ruling.
The mistake people made was thinking the case is about South Africa well guess what, the ruling is about Israel and it’s genocidal acts against Palestinians, it has no problem with Israel’s war against Hamas.
Agree. Not sure why people are so fixated on South Africa bringing the case. Yes, we have a problematic government but since stopping potential genocide is the right thing to do our government did the right thing. I’m not naive. SA did this for it’s own reasons. But let’s encourage good international community behaviour.
After all, who knows what lies in SA’s future where we may need the ICJ/ICC to step in.
This response is a straw-man fallacy. The sweeping and unsupported claims of South Africa being ” a nexus of human trafficking …” do nothing to detract from the inhumanity of Israeli actions against the Palestinians. The wild claim of South Africa being a “moral hell” is, like all emotive statements, an unsubstantiated judgement. Sure, South Africa has a shitty record when it comes to dealing with the poverty and squalor of many townships, but it does not call its poverty-stricken people animals, and it does not advocate their removal from the face of the earth.
The value of the holocaust as a currency to trade on has devalued over the decades; after all, it was three generations ago and the sympathy and support of the western world for Israel seems to have given the country a sense of entitlement. However, holocaust or no holocaust, nothing could ever justify Israel’s extreme reactions against the Palestinian people as a whole.
South Africa is a moral hell. You don’t need substantiation. I believe South African society to mostly be bereft of morals, and that is just my daily observation.
You think the effects of the holocaust have devalued over time, but that’s because it doesn’t effect you as a non-Jew. So maybe pipe down about that part. You don’t tell another people how to feel about their experience.
True, SA is a dumpster fire, but that comment is pure whataboutism and you shouldn’t fall for it. Has nothing to do with ICJ judgment or moral issues addresses.
A spectacular example of whataboutism
You are morally bankcrupt if you laud The “SA goverment”who itself is busy destroying its own country from within with moral bancruptcy
One right thing does not fix a thousand of wrong things
A thousand wrong things is no reason to not do one right thing
IMO Israel deserves all the opprobrium it gets, but the moral high ground is not worth holding if you can attain it with the low ethical standards displayed every day by the current ANC government.
Remember we (not just people of a certain colour as was the case previously) have the right and opportunity to remove the ANC or any other party in something called democratic elections. If however, that fails, we have to abide by that decision and not resort to American style ‘stolen’ elections .
Do you honestly think the anc is going to give up it’s own honeypot without a fight? Facts say your wrong, you just have to look at the number of political assassinations in SA to see that
And your point is?
and your confusion is?
I don’t think the opinions of a so-called legal “expert” hiding behind a cloak of anonymity and making subjective moral and ethical, not legal pronouncements, should be given any time of day whatsoever.
“I don’t think…” …what were you ‘thinking’ or maybe drinking or smoking or both? Deal with the substance like the court did instead, of trying use a technicality of procedure to ‘throw out’ the case/perspective.
I’m afraid his last paragraph tells you this was more an emotional interpretation than a legal one and furthers the ANC spin on its great victory. . The fact is the ANC wanted a cease fire to assist Hamas and Iran and was rebuffed. The court gave the green light to Israel’s pusuit of Hamas when the ANC/IRAN objective was to get them off the hook. The rest of the order was padding.
Redwood, more insults, certainly on a roll today
In full agreement, Chris
“The upshot is that South Africa emerges with great credit as a defender of international law. *The hope is that this commitment will be consistently applied.*”
I can’t see anyone but the most gullible anc enthusiast thinking that is even remotely likely.
Sadly, I don’t think it’s even possible. Not because of our leaders per se, but because of the global system. If one agrees with the order, then Israel is plausibly committing genocide. 15 of the 17 judges agreed with dissenting opinions from Uganda and, predictably Israel (since Barak is after all the architect of laws governing the occupied Palestinian territory). Clearly then, there is a case to be answered. Or so you would think.
America, the world’s policeman (scary thought given their policing system if you happen not to be Caucasian) through its National Security Council spokesman said: “We find this submission meritless, counterproductive, completely without any basis in fact whatsoever”.
The German Federal Office said “We … have made it very clear that, in our opinion, the claim that Israel is committing genocide in the Gaza Strip is false and not covered by the Convention.”
So countries ignore international law when it suits. To point out SA hypocrisy is fair, but to expect a higher standard of a minnow like us when countries like the US actively intervene in countries and ignore international law is not realistic. (Yes yes. And before detractors point it out – Russia, Sudan and so on.)
You say “The interpretation that the ICJ merely reminded Israel of its obligations is, curious. Do you have a source for that or is it your own interpretation”. The source is the order itself. Isrsel was not ordered to desist from genocide, it was ordered to take all steps to avoid a genicude. This sounds like a judge saying “You are acquited of the chargs, but by the way don’t do it in the future.
The ICJ is about to rule on an accusation of genocide against Russia. Let’s see how the upholder of International Law reacts to an order against its ally and partner in BRICS .
While calling for consistency the writer reveals his own inconsistency by overlooking the Court’s call for Hamas to release the hostages, which is even more significant than its rulings that Israel must give full effect to its obligations under the Genocide Convention, because Hamas is not subject to the Court’s jurisdiction, yet the Court considered it so important that it went out of its jurisdiction to do so.
It is right to insist on Israel obeying the Court’s rulings but it is right also to insist on Hamas submitting to that call. While Hamas is not subject to the jurisdiction of the Court international law requires all combatants to adhere to the rules of war embodied in the Geneva Convention, which outlaws the taking of hostages. The Geneva Convention also implicitly requires organised resistance movements to fight under a “fixed distinctive sign recognizable at a distance”, by excluding from its protection combatants who fail to do so. The reason for doing so is obvious. Combatants must distinguish themselves from civilians if they wish to have the protection of the Convention.
South Africa must indeed insist on Israel complying with the rulings of the Court. But it must equally insist on Hamas complying with the Geneva Convention if South Africa is to be credited as a defender of international law.
Well said, Sergei
What absolute unadulterated nonsense. Why do you publish such inaccurate, misleading drivel.
That’s very harsh, sure the article shows a distinct bias but it is not “unadulterated nonsense”
He might be a legal mind, but that doesn’t make him wise, sensible, honest or moral. if he’s a professor, then clearly, the university that appointed him one must have been scraping the bottom of the barrel !
How come? Please elaborate
This is so far off the mark it’s not even wrong. Top of South Africa’s demands (provisional measures) was an immediate cessation of military operations – at #1 and #2. This was also asked for in the action against Russia in June 2022. Yet unlike, the Russia case, where it was granted, the Court ignored this request. This is the gist of it. If the idea was to save Hamas – as some have observed, and I don’t hold a view on this – the action failed, and failed miserably. The measures granted are already in place, except for the reporting requirements. The call on Hamas to immediately release the hostages, is also a classic case of unintended consequences.
Russia and Ukraine are both within the jurisdiction of the ICJ and are considered nations by the UN so a ceasefire call can be made on both parties. Only Israel is a signatory with the ICJ in this case as neither Gaza, Palestine or Hamas are considered a nation in this sense and therefore a ceasefire demand is not possible as it would only apply to one side of the conflict.
Nice try, but a distinction without a difference. In the Russia case, the court was asked for and granted a provisional measure *identical* to the one South Africa asked for. South Africa’s 83 page thesis copiously referred to this ruling. The Court did *not* ask Russia and Ukraine to go negotiate a ceasefire. Against this benchmark South Africa’s failure is so dismal, I suspect Iran would be asking for its money back…
You seem to have missed the point, in this case the court cannot legally impose a ceasefire as they would only be able to instruct the one party that falls under their jurisdiction.
Well, in a way I did miss the point about “ceasefire”. But I do so intentionally because it’s irrelevant. Both requests use the verb “suspend”. It’s a direct unilateral act. I’m just consciously and deliberately declining your invitation to participate in a fallacy.
I can reluctantly understand that people who comment may be allowed to do anonymously. Contributors who write op-eds…not so much. You have the courage of your convictions or you have nothing.
I’ve seen a lot of commentary that this was a great victory for SA, re-established our moral credentials etc. But what exactly did we ‘win’? Certainly nothing economically in a country facing the abyss: if anything it was a calculated middle finger to both South Africa’s key trade and investment partners, and her own battered, jobless and broke citizens. Phyrric victory at best.
Second, on the issue of South Africa’s global moral standing, given the absolute silence from this regime on countless other brutal conflicts around the world now and in the recent pass, it seems to be a selective morality at best. Let’s not get ahead of ourselves with the giddy self-congratulatory back slapping.
“massive victory for SA”… there’s the problem. SA was “Victorious” in their victory against the Jews.
Correction, against Israel, the state. Not against Jews, many of whom seem quite sympathetic to the Palestinian plight.
Semantics, I was making the point about that the “SA Victory”. It should have been a victory for Palestinians, however, we are going on about our “massive victory”. I wrote the word “Jew” to get attention to the real plight.
It is well appreciated what south Africa did for the Palestinians and it is encouraging that the government and the ANC are aware of the repercussions.
It remains to be seen if the west and the majority of European countries will allow Israel to dismantle international institutions by disrespecting the ICJ, which the same countries held in high esteem in the Ukraine matter.
South Africa’s benefits of preference with European countries on trade might be used as a punishment tool but it carries the risk of a free pass of business to the global south from Africa.
Such a move will strengthen Bricks with negative impact to the dollar and Euro.
American policy is American interests first friends later, the American/Israel honeymoon might be at risk of revolt from within.
Ireland is already facing harsh opposition in parliament for any idea of supporting the acts of Genocide in our times.
And if you believe that then you believe the moon’s made of cheese too
Since you are anonymous , even if i agree with some of your comments , how can i trust your analysis or your qualification..
As a South African living abroad in fairly diverse community and at both ends of the Israel-Hammas support spectrum, here is what I say when people ask me for my take on the matter.
South Africa accusing Israel of genocide at the ICC has very little to do with either Israel or the people of Gaza.
Rather, it is a tactical masterstroke engineered by the ANC-leadership, on the eve of the election where their support base is at an all-time low.
Faced with the stark reality of either losing control of the government (or the poisoned chalice of a coalition with the right-wing EFF), the ANC-led government has effectively created a platform that enables the ANC appeals to the young and apathetic voter-base to whom the struggle is ancient history.
The basic message is: “30 years ago the ANC fought at home to free your parents and grandparents from white tyranny at the ballot box. Now we are fighting at ICC to free our Palestinian brethren from the Israeli tyranny.”
Whether this true or not is less important than recognizing that the ANC’s intent is entirely self-serving in this regard. Even if only 5-10% of apathetic voters turn out to support them in the 2024 elections it might be enough to keep them in power for the next 5 years.
To claim that this is a victory for SA is a matter of perspective and raises the moral implications of leveraging the Israeli-Hammas in order to score political capital at home.
I really object to this very biased view shared in a newspaper which says it seeks to expose truth and bring transparency by a person who refuses to share his name. Just to say an eminent legal mind is not enough. There are many eminent legal minds who question the integrity of many of the judges on the panel of the ICJ – themselves eminent legal minds- but at least we can research their identities and gain some insight into the influences upon them. If you say that you stand for truth then have the courage to stand, not hide behind a mask.
Yes, indeed Jean. I echo your view on DM’s bias, as there has been hugely disproportionate level of pro-Palestinian support being published recently
Brilliant analysis and a well written piece.
Testing.