–Analysis-–
CAPE TOWN — At the International Court of Justice (ICJ), the highest UN court, it became clear once again this week that few countries have more experienced human rights lawyers than South Africa. They are inextricably linked with the fight against apartheid, but also with the current urgent need to protect the civil rights of disadvantaged ethnic groups in their country.
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As a member of the G20 and BRICS, South Africa is the most internationally influential country in Africa. It considers the attack on Gaza a violation of the 1948 Genocide Convention and filed a lawsuit against Israel at the ICJ at the end of December, seeking an injunction calling for an immediate cessation of hostilities.
Such an emergency order does not require conclusive proof, which could ultimately take years. But the legal hurdles in international law for proving an intention to commit genocide are generally high. The court must determine whether there is sufficient evidence for the accusation, taking into account the 84-page long statement. This could take anywhere from days to weeks.
Experienced human rights lawyers
In the run-up to the hearing earlier this week, diplomatic negotiations were ongoing, with the plaintiff and defendant seeking international support for their positions.
Lawyer Adila Hassim from South Africa’s legal team said in court that the Palestinians affected by Israel’s attacks in the Gaza Strip had no safe haven. They were killed in their homes, but also in places such as hospitals, schools or mosques where they were seeking protection.
Palestinians had been killed when they had not complied with Israeli evacuation orders, but also when they had gone to places designated as safe by Israel. “The scale of the killing” was so great that bodies were often buried in mass graves without being identified, Hassim said.
Although the ICJ’s judgments are final and cannot be appealed, the court has no means of enforcing them.
Nevertheless, the hearing before the highest legal body of the United Nations is highly relevant for disputes between states.
This is the first time Israel has defended itself in such a setting, which underlines the explosive nature of the indictment. The country does not recognize the International Criminal Court, which is also based in The Hague and prosecutes crimes against individuals.
Israel accuses Hamas of genocide
In Israel, the accusation of genocide is perceived as cynical. After all, it was a Polish-Jewish lawyer who introduced the term in 1944 to describe the systematic murder of six million Jews and other people by the Nazis on the basis of their ethnicity. Raphael Lemkin drew up the “Convention on the Prevention and Punishment of the Crime of Genocide”, also known as the UN Genocide Convention, for the United Nations.
In fact, the Israeli government accuses Hamas of genocide. “On October 7, Hamas committed an act of genocide when it sent death squads to invade Israel and burn, behead, torture, mutilate, kidnap and rape as many Israelis as possible, as brutally as possible. It was a systematic campaign of extermination that they vowed to continue… until our country is destroyed,” government spokesman Eylon Levy said at the start of the trial.
Israel’s foreign ministry accused South Africa of “blood libel,” saying it was “a despicable and contemptible exploitation of the court.” Israeli President Isaac Herzog told U.S. Secretary of State Antony Blinken that “there is nothing more despicable and absurd” than the lawsuit.
According to the news site Axios, Israel had sent instructions to its embassies to appeal for public support, citing improved humanitarian aid deliveries to Gaza. “A decision by the court could have significant potential repercussions that not only affect the legal world, but also have practical bilateral, multilateral, economic and security implications,” Axios reports. Israel’s government has not responded to a request for comment on the case.
South Africa’s backing
South Africa received some support in the run-up to the hearing, including from the Organization of Islamic Cooperation, to which 57 states belong. In their own statements, Malaysia, Turkey, Jordan, Pakistan and Bolivia, among others, welcomed the complaint.
South Africa claims that numerous statements made by Israeli politicians and military officers are proof of the intention to destroy the Palestinians in Gaza as a group.
Legal experts assume that Israel will invoke the right to self-defense under Article 51 of the UN Charter. It overrides the prohibition on the use of force under international law, but of course stipulates the protection of civilians.
The ICJ judges will also have to decide on the principle of proportionality under international law, i.e. the question of whether the expected military benefit in the fight against Hamas justifies the means used.
A call with Hamas?
It comes as no surprise that the increasingly anti-Western BRICS state of South Africa is leading the phalanx of Israel critics. The ruling party, the African National Congress (ANC), already maintained close ties with the Palestine Liberation Organization (PLO) during its time of resistance, while the apartheid regime at the time was long supported by Israel. Relations briefly improved under the presidency of Nelson Mandela.
But years before October 7, government statements on Israel routinely referred to an “apartheid state“. And when Israel was granted observer status at the African Union in 2021 at Kenya’s insistence, South Africa lobbied vehemently and successfully for this to be suspended just a few months later.
On October 11, Hamas then reported that “South Africa’s Foreign Minister had called the Palestinian organization’s leader Ismail Hanijeh and assured him of their support in stopping ‘the Zionist aggression against Gaza'”.
South Africa’s presidential office initially denied this, which seemed credible because the foreign ministry is headed by a woman, Naledi Pandor, and not a man as claimed in the statement. But then Pandor admitted that she had indeed spoken to Hanijeh on the phone. Pandor’s ministry played down the issue, saying the call had focused on humanitarian aid for the civilian population in Gaza.
Your former oppressor’s closest friend
Former Jewish ANC MP Andrew Feinstein, who left the ruling party in 2001 in protest against dubious government arms deals, also supports the lawsuit.
The problematic history of South Africa and Israel plays a role in the complaint. “How can you not be critical of your former oppressor’s closest friend?” said Feinstein. He believes that the vast majority of South Africans show solidarity with the suffering of the Palestinians and are critical of Israel.
In the run-up to the hearing, the Jewish organization South African Jewish Board of Deputies had argued that South Africa was embarrassing itself internationally with its complaint. Feinstein strongly condemned this, referring to the lack of support from such organizations for Jewish anti-apartheid activists during apartheid.
“The opposite of embarrassment is the case,” said Feinstein. “The nations outside the West understand that because of our history, it is important that we were the ones who brought this case to the International Court of Justice. Because we have managed to overcome institutionalized racism despite all the ongoing problems.”
