Cape Town — South Africa’s referral of Israel to the International Court of Justice (ICJ) on the grounds that the country is contravening the Genocide Convention adopted by the United Nations in the wake of the Holocaust steps up diplomatic pressures to end the war in Gaza.
Unlike the International Criminal Court, established only in 2002 as part of the development of international humanitarian law since World War II, the ICJ – more commonly referred to as the World Court – cannot try or jail individuals for crimes under that legal regime.
Set up as part of the United Nations system in 1945 as the successor to a court founded after World War I, the World Court deals mainly with disputes between nations. Its judgments, which typically adjudicate disputes between states over borders, are binding. Although governments sometimes reject them, they have the effect of encouraging nations to settle their differences peacefully without going to war.
Its best-known case in southern Africa is that, launched by Ethiopia and Liberia in 1960, which challenged South Africa’s rule of the then South-West Africa (now Namibia). Control of what had been a German colony before World War I was handed to South Africa under a League of Nations mandate after Germany’s defeat in 1918.
In the first phase of the case, ending in 1966, South Africa successfully challenged the right of Ethiopia and Liberia to bring the case – the casting vote of the Australian president of the court being decisive. But the challenge prevailed in 1971, when the court found, to quote a summary “that the continued presence of South Africa in Namibia was illegal and that South Africa was under an obligation to withdraw its administration immediately.”
Moreover, the court added that “States Members of the United Nations were under an obligation to recognize the illegality of South Africa’s presence in Namibia… and to refrain from any acts implying recognition of the legality of, or lending support or assistance to, such presence and administration.”
Although South Africa rejected the judgment, it helped build the international pressure which produced a UN Security Council resolution in 1977 which, supported by the Western powers, eventually led to Namibia’s independence in 1990.
A member of South Africa’s legal team in the case against Israel, Professor John Dugard, is the country’s principal living expert on the South-West Africa case and the World Court. He was a leading academic in the legal struggle against apartheid, and in 2015 he argued that the ANC’s demand that South Africa should pull out of the International Criminal Court was “defeatst, naïve and reactionary.” (The demand is not now being pursued by the SA government.)
The introduction of South Africa’s 84-page founding statement in its application to the World Court makes clear in the first paragraph that it “unequivocally condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas and other Palestinian armed groups”.
However, it goes on to say that “No armed attack on a State’s territory no matter how serious — even an attack involving atrocity crimes — can… provide any possible justification for, or defence to, breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’ or ‘Convention’), whether as a matter of law or morality.”
The application adds: “The acts and omissions by Israel complained of by South Africa are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group, that being the part of the Palestinian group in the Gaza Strip…
“The acts in question include killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction. The acts are all attributable to Israel, which has failed to prevent genocide and is committing genocide in manifest violation of the Genocide Convention, and which has also violated and is continuing to violate its other fundamental obligations under the Genocide Convention, including by failing to prevent or punish the direct and public incitement to genocide by senior Israeli officials and others.”
Given the “extraordinary urgency” of the situation in Gaza, South Africa also asked the court for a quick hearing aimed at getting the court to call on Israel “immediately to halt all military attacks that constitute or give rise to violations of the Genocide Convention”.
It said the court should “order Israel to cease killing and causing serious mental and bodily harm to Palestinian people in Gaza, to cease the deliberate infliction of conditions of life calculated to bring about their physical destruction as a group, to prevent and punish direct and public incitement to genocide, and to rescind related policies and practices, including regarding the restriction on aid and the issuing of evacuation directives”.
Arguing that Israel is acting with “genocidal intent”, the application cites language used by Israel’s prime minister, president and defence minister.
It describes Prime Minister Benjamin Netanyahu’s reference to “a struggle between the children of light and the children of darkness, between humanity and the law of the jungle”, as constituting “a dehumanising theme”. It says President Isaac Herzog has made clear that Israel is not making distinctions between militants and civilians in Gaza, quoting a statement to a press conference that “It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware, not involved. It’s absolutely not true. … and we will fight until we break their backbone.”
It went on to cite Defence Minister Yoav Gallant as saying that Israel was “imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals and we are acting accordingly”. It also quoted Gallant as saying on separate occasions that he had “released all the restraints” and “removed every restriction” on Israeli forces.
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Note: Responding to South Africa’s application, the Israeli foreign ministry issued a statement saying “Israel categorically rejects the outrageous South African blood libel and its appeal to the ICJ. South Africa’s claim lacks both a factual and a legal basis, and constitutes despicable and contemptuous exploitation of the Court.”
It added: “South Africa is cooperating with a terrorist organization that is calling for the destruction of the State of Israel. The Hamas terrorist organization – which is committing war crimes, crimes against humanity and tried to commit genocide on 7 October – is responsible for the suffering of the Palestinians in the Gaza Strip by using them as human shields and stealing humanitarian aid from them.”
Correction: This report was corrected after its first publication to make clear that Ethiopia and Liberia attempted to “bring” – not “hear” – the Namibian case in 1960.
John Allen, a former managing editor of AllAfrica, previously served as communications director of South Africa’s Truth and Reconciliation Commission. His great uncle, a former Chief Native Affairs Commissioner of South-West Africa, was an expert witness in South Africa’s defence of its case in the World Court.