Yves here. Many commentators have praised both the written and oral arguments made by the South Africa in its genocide case against Israel before the International Court of Justice. We are into the second week of deliberations, which makes it seem less likely that the outcome I feared would come to pass, that the court could reject the case due to South Africa not having taken all the steps needed to crystalize the matter as an ICJ genocide dispute. As this post confirms, South Africa had sent several referrals to another UN court, the International Criminal Court, for various alleged war crimes, with the final referral including genocide. But the ICC prosecutes individuals, while the ICJ handles disputes between states, so they are different cases.
Norman Finkelstein, in his many discussions of this case, stresses what a virtuous act this was by South Africa, not merely for dedicating the resources to file an extensively documented, well argued application. Finkelstein points out that it takes courage to stand up to the US as South Africa has. That may explain why even though some countries have said they support South Africa’s action, so far none has offered stronger backing, say by intervening in the case in the trial phase, as Germany has said it will, or (when the case was being developed) joining South Africa as a co-applicant.
By Niren Tolsi, a freelance journalist whose interests include social justice, citizen mobilisation and state violence, protest, the Constitution and Constitutional Court, football and Test cricket. Originally published at openDemocracy
When lawyers and government officials who had represented South Africa in its dispute against Israel at the International Court of Justice (ICJ) returned to Johannesburg’s OR Tambo Airport on Sunday 14 January, they received a welcome usually reserved for world champions or Olympians.
People waving Palestinian and South African flags filled the airport’s international arrivals hall. The call and response of Amandla! Awethu! (Power! To the People!) rang out.
Placards were held aloft. Some were humorous: “Heroes don’t wear capes, they have LLBs!” Others, mournful.
One stated: “You cannot build a Holy Land on the mass graves of children”, It was a reference to the Israeli Defence Force’s (IDF) killing of, according to papers filed by South Africa, 7,729 children (out of approximately 21,110 Palestinians killed and over 7,780 missing and presumed dead) in the period between Hamas’s ghastly 7 October 2023 attack on Israel and its civilians, and 11 January 2024, the day when South Africa argued that the ICJ should declare Israel’s ongoing military response in Gaza a genocide.
The ICJ application, according to Nokukhanya Jele, a legal adviser in South Africa president Cyril Ramaphosa’s office, had gained momentum within government after its November 2023 referral of the situation in Gaza to the International Criminal Court’s chief prosecutor had proved fruitless. Likewise, attempts at the United Nations to call for a ceasefire, which had been torpedoed by Israel’s ally, the United States, and the use of its veto powers.
“Every failure of the UN Security Council to ensure a ceasefire is connected to an increase in the death toll in Gaza… Those using their veto power had a direct impact on the death toll,” said Zane Dangor, the director-general of South Africa’s Department of International Relations and Co-operation and one of the drivers of South Africa’s ICJ application. He added that while reform of the UN Security Council and the use of veto powers was “not an end goal” of South Africa’s application, it may be a linked, long-term outcome.
Dangor pointed to the strong pro-Palestinian sentiment among civil society organisations in South Africa as another motivating factor for his government’s ICJ application. Likewise, the long relationship between the African National Congress (ANC), which currently governs South Africa, and the Palestinian Liberation Organisation (PLO), when both were liberation movements.
‘Grand apartheid’ and the state of Israel, he pointed out, were both created around the same time in 1948, and both countries – considered pariahs by swathes of the international community – had a long history of collaboration, including in the dealing of arms, until Black South Africans gained freedom in 1994. In 1990, a few months after Nelson Mandela, South Africa’s first democratically-elected president, was released from an apartheid prison after 27 years, he risked the opprobrium of the pro-Israeli and Zionist lobbies in the US to reiterate the ANC’s support of the PLO.
During a heated town hall meeting at the City University of New York, hosted by the broadcast journalist Ted Koppel, Mandela, described PLO leader Yasser Arafat as “a comrade in arms” and said Black South Africans and the ANC “identify with the PLO because just like ourselves they are fighting for the right of self determination”.
It is a stance that South Africa’s leaders have held consistently.
Dangor, said South Africa’s intention in the short-term was to stop the “systemic destruction of civilian lives, hospitals, homes and schools” in Gaza.
“Our main goal was to save lives,” Dangor said, adding that fact-finding missions to the West Bank and meetings with human rights and non-governmental organisations including B’Tselem, Breaking the Silence and Al Haq, earlier in 2023 made it clear “the last year was the most dangerous in terms of attacks and killings” of Palestinians by the IDF.
He added that “provocations by the Israeli government and politicians were bound to lead to a response” by Palestinian organisations.
South Africa had also asked the court to “indicate” urgent provisional measures to stop Israel’s military action, increase humanitarian aid into the area and preserve evidence of potential genocide, amongst others. While a ruling on whether Israel’s actions in Gaza, which have included the bombing of schools, hospitals and facilities run by the UN, constitutes genocide may take years, a decision on the urgent provisional measures sought by South Africa is expected to be delivered before the end of January.
Longer term, the country hopes a genocide finding by the ICJ would reign in Israel’s decades-long “belligerent apartheid occupation of Palestinian territory” and lead to processes to investigate and hold alleged genocidaires and perpetrators of war crimes to account. The application is considered a step towards finding a solution to the crisis in the Middle-East and an end to the Israeli occupation of Palestine.
South Africa’s case at the ICJ, according to both Jele and Dangor, hopes to build on a precedent set by that court in a groundbreaking 2020 ruling after The Gambia applied successfully for provisional measures, under Article IX of the Genocide Convention, to prevent Myanmar from perpetrating acts of genocide against the persecuted Rohingya minority in that country. In July 2022, the court followed up with a ruling rejecting Myanmar’s preliminary claims that The Gambia did not have jurisdiction to bring the application against it, confirming the admissibility of the African country’s application.
South African government officials and lawyers have suggested that if the ICJ’s 17 judges do not build on these precedents, the court – and international law – is at risk of suffering a crisis of relevance.
As South Africa edges closer to celebrating 30 years of democracy later this year, its “Rainbow Nation” optimism has been frayed by government corruption scandals, an energy crisis, the breakdown of infrastructure through state negligence, increasing crime rates, declining quality of services in hospitals and schools, and a sense that it has lost moral authority in the international sphere.
This case, however, has been greeted by citizens and civil society, on social media and in the streets, as a return to the heady days of the early 1990s when, after Mandela was released and the country headed to a largely peaceful transition to democracy, hope for a better society and world seemed boundless.
Ylva Rodny-Gumede, head of the Division for Internationalisation at the University of Johannesburg, and a professor in its School of Communications, said after various international policy missteps, the ICJ application had restored a sense of principle to the South African government, duly celebrated by South Africans tired of the grubby mainstream politics in the country since the end of apartheid.
While noting the short-term “fix” had made South Africans feel better about being South African, it did not restore complete faith in the current ANC government to return the state to the principles and ethics the country was founded on in 1994 under the notion of the “Rainbow Nation”: “South Africans have long disabused themselves of the rainbow nation project and what it stood for, they are grappling with more complex real-life issues,” she said.
But support for South Africa’s case within the country has not been a blanket one.
While progressive Jewish South Africans like former information minister Ronnie Kasrils have applauded the South African government’s action there has also been criticism among the pro-Zionist sections of the population.
In a statement released on New Year’s Eve, the South African Jewish Board of Deputies described the ICJ application as a “media-seeking stunt” which lacked “credibility”. It said the SA government had “no real understanding of the current conflict, international law or interest in finding a peaceful resolution to the conflict”.
On 14 January, standing under a statue of Oliver Tambo, the long-serving president of the ANC during the period when it was banned by the apartheid state and exiled, Advocate Tembeka Ngcukaitobi SC, who had addressed the ICJ on Israel’s genocidal intent, described the legal challenge as an “inspirational experience because the effort that has gone into resisting an injustice by the Palestinian peoples is itself a source of great inspiration”.
Ngcukaitobi warned however, that the Palestinian people’s “struggle continues” and that South Africa’s action “marked a very crucial turning point in having the world look at the issue through a legal lens”. He added: “But the overall struggle itself will continue beyond this. We have been very humbled that we have been able to contribute a very small part to an otherwise long and courageous struggle of the Palestinian people.”
He was humbled also, by the South Africans who had come to the airport “in numbers” to show their support for the legal action and the end of the violence and killings in Gaza.
South Africa, a country desperately searching for meaning, had found belief, again, in itself and hope for both its future, and that of the broader international community.