South Africa and Israel square off at The Hague
The stage has been set at the International Court of Justice (ICJ) in The Hague to hear SA's claim that Israel's war against Hamas in Gaza is ‘genocidal’ in character, reports Legalbrief. On 29 December, South Africa filed an urgent application at the ICJ ‘in which the court is requested to declare on an urgent basis that Israel is in breach of its obligations in terms of the Genocide Convention, should immediately cease all acts and measures in breach of those obligations and take a number of related actions’. SA has assembled a high-powered team to argue its case at the hearing, which will be broadcast live. Israel on Sunday named its former Supreme Court President Aharon Barak as its addition to its panel. News24 reports that Barak, a champion of Supreme Court activism, was a focus of opposition for members of Prime Minister Benjamin Netanyahu’s Government, whose judicial reform push last year bitterly polarised the public. Setting the scene for Thursday’s opening foray, News24 notes former SA Deputy Chief Justice Dikgang Moseneke is to join the ICJ Bench hearing the case. Advocate Adila Hassim SC, will begin SA’s oral arguments for the Presidency, leading the team of SA lawyers who will have 15 minutes each to address the court. She will be followed by fellow senior counsel, John Dugard, Max du Plessis and Tembeka Ngcukaitobi, who will spell out SA’s case. They will be supported by a team of junior counsel, external counsel and legal teams from other countries. By noon in The Hague, the oral arguments will be wrapped up.
On Friday, Malcolm Shaw, KC, a well-known British lawyer, will argue on behalf of Israel. News24 notes that the two-day hearing will be focused on SA’s request for the court to rule on provisional measures it urgently seeks – which are to ‘protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention’ and ‘to ensure Israel's compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide’. In terms of ICJ process, SA does not have a right of reply once Israel wraps up its defence. Moseneke's nomination to the ICJ Bench is in line with the court's process that a state party can nominate a judge to hear a matter it is party to, according to the Department of International Relations & Co-operation (Dirco). Whatever plays out at the ICJ after two days of hearings on Thursday and Friday, the approach to the court marks a decisive shift in South Africa’s relations with the West, especially the US.
Israel is likely to challenge SA’s standing to bring the challenge, and the court's competence to hear it. It will probably argue that long-standing international law gives it certain rights – such as self-defence – which are not subject to oversight by the likes of the ICJ. It may claim victimisation by organisations such as the UN and long-standing animosity by the likes of SA, and it could even complain that ICJ judges are unable to rule in its favour because they will be pilloried for it. The report quotes Israeli spokesperson Eylon Levy as saying: ‘We assure SA's leaders, history will judge you, and it will judge you without mercy.’ News24 points out SA has for decades backed the Palestinian cause for statehood in Israeli-occupied territories. It has likened the plight of Palestinians to those of the black majority in SA during the apartheid era, a comparison Israel strongly denies. Israel's Foreign Ministry described the suit as ‘baseless.’ Levy listed a series of measures Israel's military has taken to minimise harm to non-combatants. He said Hamas bore full moral responsibility for the war it started and was ‘waging from inside and underneath hospitals, schools, mosques, homes and UN facilities’. According to an EWN report, Levy said SA was aligning itself with Hamas and covering up crimes against humanity.
In its 84-page application, SA labels Israel's attacks as ‘genocidal’ in character, notes News24. ‘The acts and omissions by Israel complained of by SA are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group, that being the part of the Palestinian group in the Gaza Strip ("Palestinians in Gaza"). 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. EWN reports that 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,’ read the papers. Dirco spokesperson Clayson Monyela said the Cabinet proposed the court action during a special meeting on 8 December to order a cessation of Israel's continued attack on Palestine.
In its submission, SA claims ‘the 2.3m Palestinians in Gaza, including over a million children, are extremely vulnerable. There is a grave threat to their existence. They are in urgent and severe need of the court’s protection’. According to a Business Day report, the submission adds: ‘An estimated 1 779 Palestinian families in Gaza have lost multiple family members, and hundreds of multi-generational families have been killed in their entirety, with no remaining survivors – mothers, fathers, children, siblings, grandparents, aunts, cousins – often all killed together.’ More than 55 243 Palestinians have been wounded in Israel’s military attacks on Gaza since 7 October 2023, the papers state. But access to treatment is a problem, with only 13 out of 36 hospitals in Gaza partially functional, and no fully functioning hospital left in North Gaza. It notes the WHO is estimating 93% of the population in Gaza is facing a hunger crisis with “one in four households facing ‘catastrophic conditions”: experiencing an extreme lack of food and starvation and having resorted to selling off their possessions and other extreme measures to afford a simple meal’. The team said the situation was ever-worsening.
‘The complaint is not about the conflict per se,’ says Gerhard Kemp, law professor at University of the West of England, Bristol, who previously taught in SA. ‘Rather it is about the duty of a state (that is) party to the 1948 Genocide Convention to prevent genocide.’ Hennie Strydom, University of Johannesburg law professor and president of the SA Branch of the International Law Association, agrees, reports Business Day. ‘If there is a dispute between parties to the Genocide Convention the dispute shall be referred (to the ICJ) by any of the parties to the dispute.’ Strydom says the dispute between Israel and SA concerns ‘whether the actions taken by Israel in Gaza amount to genocide’ in terms of the convention. SA’s case is that Israel’s response ‘and the consequences ... amount to genocide committed against Palestinians in Gaza’. Kemp says SA sets out ‘the factual and contextual contours of genocidal violence aimed at the Palestinian people (especially in Gaza). SA’s application alleges that Israel is in breach of its duty to stop genocide from occurring. SA also asks Israel to stop incitement to genocide and to prevent incitement to genocide from happening’. The ICJ, the main resolution forum for UN member states, is separate from the International Criminal Court (ICC) and settles disputes between nations in terms of international law. The ICC’s focus is on prosecuting and imprisoning individuals for international crimes, says Strydom. The ICJ, on the hand, ‘may consider remedies such as compensation or another non-criminal sanction which the nation state must then comply with.’
A successful application would have two important implications, Strydom is quoted as saying by Business Day. First, there will be ‘a ruling on the merits of the case, namely whether Israel has indeed been involved in acts amounting to genocide’. Secondly, SA wants ‘the ICJ to provide interim measures. These are intended to provide protection to civilians during the armed conflict.’ SA believes there is ‘a significant risk that civilians will continue to be exposed to life-threatening circumstances given the nature of the Israeli offensive. ‘The most important of SA’s requests is that Israel must immediately suspend its military operations in and against Gaza.’ If granted, but Israel rejects the ICJ ruling, ‘we have a problem of enforcement’, which would require approaching the UN Security Council. Even if the US, Israel’s main ally, vetoes subsequent UN sanctions, Kemp says, ‘one should not downplay the diplomatic and symbolic effect of an ICJ finding, and Israel is evidently concerned about that.’ In 2023, SA had its first judge elected to the ICJ – Professor Dire Tladi, whose terms starts in February.
In the war of words ahead of the hearing, the Israeli Ministry of Foreign Affairs called on the ICJ and the international community ‘to completely reject SA’s baseless claims’. In a statement recorded by News24, it says: ‘Israel rejects with disgust the blood libel spread by SA in its application to the ICJ. SA’s claim lacks both a factual and a legal basis, and constitutes a despicable and contemptuous exploitation of the court.’ It adds: ‘SA is co-operating with a terrorist organisation that is calling for the destruction of the state of Israel. The Hamas terrorist organisation – which is committing war crimes, crimes against humanity and sought 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.’ It continues: ‘Israel is committed to international law and acts in accordance with it, and directs its military efforts solely against the Hamas terrorist organisation and the other terrorist organisations co-operating with Hamas. Israel has made it clear that the residents of the Gaza Strip are not the enemy, and is making every effort to limit harm to civilians and to facilitate the entry of humanitarian aid to the Gaza Strip.’ The statement is backed by the US, with the White House describing SA’s submission as meritless. The US National Security Council spokesperson John Kirby is quoted in an EWN report as saying: ‘We find this submission meritless, counter productive and completely without any basis in fact, whatsoever.’
News24 points out that SA's court papers clearly condemn Hamas’ attack on Israel. SA states in the very first paragraph of the application: ‘SA 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. No armed attack on a state’s territory, no matter how serious – even an attack involving atrocity crimes – can, however, provide any possible justification for, or defence to, breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, whether as a matter of law or morality.’
Conceding that SA’s relations with the West could suffer as a result of the ICJ move, Dirco DG Zane Dangor said there was a plan to counter expected Western opposition. He also revealed that there were indications that more countries could join SA after this week’s hearing. ‘We will be able to see how we regain this (relationship with Israel) after the hearings are done but clearly, under the current circumstances, the relationship is not going to be normal and we will have to look at how we engage after this, particularly working towards a permanent solution for the relationship,’ Dangor said. The Sunday Times reports that he was confident the relationship with the US could be managed. ‘We have engaged with the US and have always said to them that we have always differed on this (Palestine) issue, and the situation has never impacted our bilateral relations and we have had constant discussions with them and agreed to maintain that,’ he said.
In a separate development, the DRC has denied secret talks with Israel to accept Palestinian refugees from Gaza – pushing speculation towards less forthcoming neighbouring Congo-Brazzaville. ‘Contrary to what is reported in some media, there has never been any form of negotiation, discussion, or initiative between our government and the Israeli Government on the alleged reception of Palestinian migrants on Congolese soil,’ said DRC government spokesperson Patrick Muyaya. News24 notes that he was responding to a report first carried by The Times of Israel linking the DRC to such a deal. It seems possible that the ‘Congo’ the Middle East publication was referring to is in fact the neighbouring Congo-Brazzaville, also known as the Republic of Congo. The DRC has a long history of dealings with Israel, dating back to the administration of Mobutu Sese Seko. Israel played a significant role in the military, economic, and political survival of Mobutu's first three decades in office.