SA's ICJ performance lauded, but jury still out
Publish date: 15 January 2024
Issue Number: 1059
Diary: IBA Legalbrief Africa
Category: International
As the international community awaits the outcome of the interim ruling of the International Court of Justice (ICJ), there is widespread praise for the feat accomplished by South Africa at The Hague last week. Legalbrief reports that SA on 29 December filed an urgent application at the ICJ urging it 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’. During last week’s two-day hearing at the Peace Palace, SA argued that Israel’s Gaza onslaught amounted to a ‘pattern of genocidal conduct which falls within the Genocide Convention’s provisions’. Business Day reports that SA’s case is essentially twofold: first, the big case is to have Israel’s conduct in Gaza declared as acts of genocide or genocidal intent in violation of the 1948 Genocide Convention. Second, and more urgently, to obtain ‘provisional measures’, where the court can essentially order Israel to stop its current military operations in Gaza, pending the court’s final determination on the first issue. Whereas the court could grant the provisional measures within weeks, the larger case could take up to a year, according to various law experts.
SA has enlisted six of the country’s best legal minds, including Advocates Adila Hassim SC and Tembeka Ngcukaitobi SC, who argued before the ICJ that Israel’s war on Gaza constitutes intentional ‘genocidal acts’ that are in contravention of the UN Genocide Convention. A delegation led by Lamola argued that Israel has genocidal intent in Palestine and asked the court to order six specific actions to end the carnage. City Press reports that these include ending military action, stopping the killing, opening up humanitarian corridors to prevent a coming famine and allowing the free and safe birth of Palestinian babies. Each team member argued to their strengths with the internationally renowned Professor John Dugard crafting the core of the strategy.
Sunday Times legal correspondent Franny Rabkin, who attended the proceedings, says each nation claimed law and morality were on its side, and each said that, if the court did not agree with them, the crime of genocide would be rendered hollow and meaningless. She notes that provisional measures are put in place to protect parties’ rights while the main case – to determine conclusively whether Israel has committed genocide (or has incited genocide, or is complicit in genocide, or has failed to prevent genocide) – is decided. ‘Wars have rules, and in this war most commentators have agreed those rules have been broken time and again, with the commission of alleged war crimes and crimes against humanity. Of these, the ICJ has jurisdiction to deal only with genocide – the “crime of crimes”. Proving genocide in the main case is going to be harder for SA. It will have to show that Israel has or had a “special intention” to commit the heinous crime. In other words, there must be no other inference from Israel’s actions other than that it intended to commit genocide. But at this interim stage the bar is lower, and SA need only show its case is “plausible”. In respect of all the submissions, the 17 judges did not ask a single question, as is normally the case in this court. However, they may yet follow up with requests for further information from the parties. Because interim proceedings are urgent, the court will probably pronounce on provisional measures soon. Most commentators have said they expect some kind of intervention from the court, as the situation is too grave for it to do nothing. But precisely what form this will take is the real question.’
Journalist Qaanitah Hunter – who witnessed how the team presented ‘a cogent case, rooted in fact, and supported by international law’ – said SA's oral submission was ‘a masterstroke in legal genius and has the potential to shift the course of history’. In a News24 analysis, she notes that the SA team came prepared in its bid to have the court find that Israel's military invasion of Gaza was genocidal and that its claim of self-defence was baseless. ‘The SA Government and its legal team knew that the world was watching and rose to the occasion. As the face of the SA Government, Lamola pre-empted any claim that Israel was acting in self-defence. On top of his submissions to the court, he stated that SA had repeatedly condemned the 7 October attacks by Hamas on southern Israel, which claimed the lives of 1 200 Israelis. The power line-up of six advocates – four South Africans and two external counsel – weaved together SA's case, evoking emotion and displaying legal prowess.'
SA Judge Navi Pillay has lauded the country’s presentation at the ICJ, reports EWN. Pillay, who served as an Appeals Division judge for the International Criminal Court in The Hague, is commonly referred to as the ‘genocide judge’. Currently serving as an ad hoc judge in the ICJ case of Gambia versus Myanmar, Pillay praised SA’s presentation before the world’s highest court. EWN reports that Pillay said that SA’s legal team ticked all the boxes. ‘I liked how respectful they were in dealing with the subject, they were sensitive to victims and staying with the law, no name calling. I’ve already heard Israel and US representatives saying there is no merit in SA’s application – that’s not what the court would expect. So, I would say they made a very convincing case and we should be very proud of all of them.’
On Friday, Israel asked the ICJ to deny all of SA’s six requests for immediate preventive measures, including the end of military operations, the extension of proper humanitarian assistance and the right to birth assistance for Palestinian mothers. On the other hand, says Legalbrief, SA asked the court to order its preservation and prevention measures in 10 to 14 days. The ICJ has indicated it would deliver its verdict as soon as possible in open court. Both parties were asked to be available if the court needed more information. If Israel does not comply with a possible ceasefire order in Gaza from the ICJ sought by SA, the matter could end up before the UN Security Council. This is the view of Gerhard Kemp, professor at the University of the West of England, Bristol, who also thinks military operations may ‘escalate’ if the ICJ refuses the order SA seeks. Kemp told Business Day a ceasefire order from the court ‘is the right measure to prevent genocide’. If Hamas disregarded this, ‘Israel would be justified not to abide by that part of the order’. Regarding Israel’s documenting of its provision of aid to Palestinians, Kemp said this actually works against Israel. ‘Ironically enough,’ he said, ‘Israel’s examples of how they provide humanitarian relief may support SA’s request for provisional measures.’ This is because SA’s request is precisely to make such aid easier. ‘Any measures that can help the prevention of a genocide should be taken as within the remit of the case.’ Kemp said it is an ‘open question’ ‘whether Israel will adhere’ to provisional measures. If Israel does not, ‘the matter may end up before the UN Security Council for enforcement’. If measures are not granted, he expects the situation will remain as is or escalate.
Israeli lawyers asserted the country’s right to self-defence on Friday in response to the submission by SA the day before that the ICJ should take urgent and immediate provisional measures to stop Israel from committing alleged genocide. A Daily Maverick report notes the urgent measures would be pending a final determination by the court on whether it was perpetrating genocide in Gaza in violation of the Genocide Convention. The court could decide on provisional measures within weeks, though the final determination is expected to take years. Israel’s lawyers argued that an order for Israel to stop its attack on Hamas in Gaza would leave it exposed to further attacks by Hamas like the one it conducted on 7 October last year. It blamed Hamas for much of the massive death and destruction in Gaza.
Meanwhile, Namibia has condemned former colonial ruler Germany for rejecting a case at the UN's top court accusing Israel of committing genocide in Gaza. Germany has offered to intervene on Israel's behalf in the case brought by SA at the ICJ. It said the accusation of genocide against Israel was completely unfounded and amounted to a ‘political instrumentalisation’ of the UN genocide convention. BBC News reports that President Hage Geingob urged Germany to ‘reconsider its untimely decision to intervene as a third-party in defence’. Berlin in 2021 acknowledged committing genocide in Namibia. Geingob said Germany could not ‘morally express commitment to the United Nations Convention against genocide, including atonement for the genocide in Namibia’ and at the same time support Israel. ‘The German Government is yet to fully atone for the genocide it committed on Namibian soil,’ he added.
The ICJ has heard 192 cases dealing with issues of international law and providing legal advisory opinions to member states of the UN since its formation. It has jurisdiction over all member states but not on all matters while having an integral role in the formulation of international law as well as regulating the relationships between member states. South Africa vs Israel, as the latest case is known, is the third case entailing genocide. IoL reports that the first was The Gambia vs Myanmar case which was frequently referred to in South Africa’s thorough 84-page application. The Myanmar case not only set the legal tone for genocide within international jurisprudence but certainly influenced the way member states viewed or related to the accused state. The international community must expect the Israeli government to ignore the ruling of the ICJ should the court rule in South Africa’s favour. Israel has been ignoring international law and successive UN resolutions since 1948, the year it was founded. However, what the ruling in SA’s favour will do is isolate Israel internationally as was the case with Myanmar. Israel’s traditional allies, especially those democracies in the West, will have a tough time having to defend ‘the only democracy in the Middle East’ in the face of an adverse ICJ ruling and its ignoring of that ruling.
