Image attribution: Henrik Ström, Flickr

UPDATE: 26 January 2024. On Friday, the International Court of Justice made its preliminary ruling on the case brought to it by South Africa against Israel following the war in Gaza, which began on October 7. The court found that Israel must desist from acts in relation to the Palestinian people as prescribed in the genocide convention, which are killing members of the group, causing serious bodily or mental harm to the members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and imposing measures intended to prevent births within the group. It also ordered Israel to preserve evidence in relation to this case and also punish statements of genocidal intent made by Israeli officials. However, the court did not outright order Israel to halt the military operation in Gaza. As these are preliminary orders, the case continues.

23 January 2024. South Africa has applied to the International Court of Justice against Israel for its war in Gaza following the surprise attack by Hamas on October 7 2023, which is thought to have killed over 25,000 people in three months. South Africa requested an interim finding to, among other things, stop the Israeli military campaign. Both countries have made their presentations to the ICJ, and while a preliminary finding is expected within weeks, precedence suggests it could be many years before a final judgement is handed down. So what does this mean? Why have countries like Germany joined the case on the side of Israel, and what are the implications for South Africa on the international stage? SIPHO HLONGWANE speaks to international relations expert and political scientist Dr. Sithembile Mbete to unpack the issues at play

Now that South Africa and Israel have presented their cases before the International Court of Justice, what is your impression of the South African side?

I think that South Africa presented the stronger case of the two. I say this for three reasons. The first is that South Africa’s case was embedded in the case of the ICJ on the issue of genocide and the prosecution of genocide in terms of the genocide convention. It is interesting that the Convention on the Prevention and Punishment of the Crime of Genocide is one of the oldest conventions of the United Nations. It was signed in 1948 and came into force in 1951. But no case was accepted by the court (in spite of an attempt in 1951 by African Americans led by W.E.B. DuBois and others in relation to lynching in the United States) until the 1990s, in the case of Bosnia vs Serbia. That case was brought in the early 90s initially with a request for provisional measures like South Africa has requested, and those were not granted. What happened after that case was various incidents of ethnic cleansing around Bosnia, including the massacre at Srebrenica, where many thousands were systematically murdered, especially men. That case was only finally decided in 2007, though the court cleared Serbia of direct involvement in the genocide. But that case has always been seen as a failure to prevent genocide because the thing around the genocide convention is that it’s not just for prosecuting genocide or the intention. The spirit of it was to prevent genocide from happening ever again and to prevent actions, and that’s what people forget.

Raphael Lemkin, the Polish-Jewish lawyer who first coined the term genocide, was first inspired to campaign for the convention, which recognised genocide as a crime, when he learned in the 1920s of the atrocities committed by the Ottoman Empire against the Armenians from 1915-1916. As he was campaigning, the world learned of the Holocaust happening in Europe at that time, which was on a scale far worse than the Armenian genocide. In the aftermath of World War 2, the UN General Assembly recognised genocide as a crime in a binding treaty that was intended to ensure something like this never happened again. So, when you look at South Africa’s request for provisional measures, it must be seen in that light. Genocide was given this status in international law as the crime to end all crimes, and the ICJ, as the pinnacle of international justice, was given the responsibility of adjudicating not just punitive terms but prevention as well. But the court failed that test in the 90s in the form of the Bosnia case. 

The next time the ICJ tried a genocide case was 10 years later when The Gambia brought an application against Myanmar concerning the Rohingya population on behalf of the Organisation of Islamic Cooperation (OIC). Much of South Africa’s case is based on the submissions made by Gambia in that case, in which provisional measures were granted. South Africa’s case uses much of the same language used by the court in granting provisional measures against Myanmar. In fact, Myanmar used a lot of the same language that Israel did in claiming that no dispute existed between it and Gambia with the conflict happening within Myanmar, but the ICJ found that as a signatory to the convention, a dispute did exist. So I suppose all of this is to say that the first thing is South Africa is the stronger case in that it’s very much rooted in the court’s case law. 

The second thing is that South Africa has done something which hasn’t been done before, which is to collect all the evidence in one place. The information used is sourced from the UN itself in many of these instances, and so the credibility of it shouldn’t be called into question, even though Israel would very much like to do so. They kept referring to this volume that had been submitted to the judges, but it’s not publicly available anywhere. But if you look at the record of proceedings from South Africa and from Israel, South Africa’s record of proceedings is very well-referenced. Every statement and every statistic is backed up in a very detailed way. If you look at the Israeli case, there may be one or two references to case law, but it’s very much a vibes-based case, saying basically, ‘just trust us’. 

The third reason is that South Africa’s case is very much placed in the historical context of the 75-year occupation of Palestine by Israel. So if you look at the application, it is a lot more detailed in tracking or in placing everything from the seventh of October in relation to everything that’s happened in the 75 years before. This helps South Africa build the case for genocidal intent. For example, linking the statements of officials to the statements made by soldiers on the ground was very important. 

Following the initial hearing, other countries have signalled their interest in joining the case. Germany, for example, has declared an interest in joining on the side of Israel. How does this work from here onward?

So we’ve had the hearing on the granting of provisional measures, and remember that the court doesn’t have to find that Israel is committing genocide to grant these. All they have to find is that there is a prima facie case to be made or sufficient evidence on the facts presented. And it does look like some of the things happening could fit into the definition of genocide. That’s why South Africa’s case emphasised the plight of dying babies and pregnant women. The thing with preventing births is that you are trying to end a line of people. How do you characterise bombing hospitals with people inside of them, right? Does it fit into the spirit of the genocide convention? The court must still decide all of that. Other parties can make written submissions, and countries like Germany and France may object as they’ve indicated they will, and the court must still go through all of that.

[The United Nations General Assembly is separately seeking legal advice from the ICJ on Israel’s 75-year occupation of the Palestinian territories, including East Jerusalem. The Indonesian foreign minister Retno Masedi, who is scheduled to speak to the ICJ in February on the Israeli occupation, has said that this legal opinion is necessary to show that Israel is in violation of international law. – editor]

There have been severe objections to South Africa’s application to the ICJ, mainly from the United States, Germany, the United Kingdom and France. These countries have accused South Africa of misusing the Convention. Do you believe they have a genuine case, or are they trying to protect themselves after basically covering for their ally, Israel? 

You know, the European countries especially have a serious blind spot when it comes to Israel. This is in the way they’ve come to view the formation of Israel as a direct atonement for Germany’s sins when it comes to the persecution of Jewish people. There’s actually been a lot of decolonial work around how there’s this view like the Holocaust was perpetrated by aliens or something, that it’s a crime that is so unique and egregious that it compares to nothing that ever came before. There’s a socialisation to imagine that nothing could ever be that bad or compared to it. It is considered blasphemous to compare what happened in the Holocaust to anything else that ever happened, even though there’s a direct line from the genocide that Germany committed in Namibia to the Holocaust. 

But there’s also a practical element. Countries like the USA and Germany have sold arms to Israel and have, in fact, increased arms sales since October 7 to levels not seen before. The US has been selling these 2,000-pound bombs, which are not meant to be used in densely populated areas but which have been dropped onto Gaza. The USA is the only country which manufactures these bombs. So they face the horrible situation of being complicit in genocide, potentially. I’m therefore not surprised that they’ve come out and claimed that South Africa’s case is illegitimate and there’s actually no genocide charge to answer to because they have to protect themselves in case the court ruling goes against them. So it’s cynical in political terms, but this is laying the foundation to claim innocence and deny it when the time comes.

Some commentators have claimed that South Africa could be punished by the West for bringing this case against Israel. 

There’s a portion of South African society that still needs to grapple with the fact that South Africa is no longer part of the West. South Africa has not been part of the West since 1994. Nobody on the international scene thinks of South Africa as being part of the West anymore. This case is actually in line with South Africa’s positioning on the global stage since the African National Congress came into power. I mean, one of the first things that the government did in 1994 was to formally join the Non-Aligned Movement. South Africa’s neutral stance in the Ukraine-Russia war showed this, but this war in Palestine has really shattered this myth of our alignment with the West. This war has shattered many myths, including the myth of Western values. 

There’s this constant panic about the West and foreign direct investment, which is a hangover from the days of sanctions against apartheid South Africa when it really did matter what the West thought. I suppose it comes from from normal human interaction that I need to be nice to you, for you to be nice to me. And that’s not how international relations works. Those strategic relationships are far more complex than: are you nice to me? They’re also far more complex than: are you a democracy? For example, the United States is one of the biggest investors in Saudi Arabia and one of its biggest allies. Saudi Arabia is nothing like a democracy, but for the US, the calculation is about national interest, which is very complex. 

Even though South Africa has lost its standing on the continent somewhat, we are still a very influential country. We are still one of the biggest payers into the African Union on the continent, and the West still wants to trade with us. Africa has a growing population, and this is where markets are going to be in future. If they’re going to try and punish South Africa for exercising its rights in terms of the Genocide Convention, that would have repercussions on those countries, as Europe is discovering after trying to sanction Russia over the war in Ukraine. The United States wouldn’t sanction South Africa either, for what reason? 

It’s also clear that the West itself isn’t united in support of Israel. There has been huge dissent within all these countries against Israel, especially in the United States. You’ve also had several Western countries say they will abide by the ruling of the court. 

Finally, don’t forget that it’s an election year in South Africa, so it’s important to contextualise a lot of reactions to this case in this light. 

Read More: Ronald Lamola: South Africa remains ‘confident’ about its case against Israel before the International Court of Justice