South africa, israel and the hague | thearticle

For months since 7 October 2023, Netanyahu has defied the USA.  Around the world, large demonstrations have protested Israel’s conduct of the war in Gaza, faring no better.  Now the UN’s

International Court of Justice (ICJ) in The Hague, the nearest we have to a global judiciary, has intervened. On 29 December 2023 South Africa filed an “Application of the Convention on the

Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel)”, bringing a case to the ICJ based on allegations of acts of genocide by Israel in its war

against Hamas.  “It is important,” the submission reads, “to place the acts of genocide in the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its

56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza, including the serious and ongoing violations of international law associated therewith,

including grave breaches of the Fourth Geneva Convention, and other war crimes and crimes against humanity.” In the charged atmosphere created by Hamas’ massive human rights violations while

attacking Israel, 1,400 mostly civilian deaths and the taking of 224 hostages, followed by Israel killing over 30,000 Palestinians (mainly civilians according to Hamas) in the destruction

of Gaza, it is hard to overestimate the reverberations of such allegations.  But why South Africa? First some historical context. The ICJ was formed at the first session of the UN General

Assembly and Security Council in April 1946, when genocide was recognised as a crime in international law. This was a product of the Nuremberg trials and a reaction to the _Shoah, _the

Holocaust.  In 1948, genocide was carefully defined within the _Convention on the Prevention and Punishment of the Crime of Genocide_ (the Genocide Convention). Both the horrendous massacres

accompanying independence and partition of India and Pakistan in 1947, the migration of 14-18 million people, and the expulsions of Arabs accompanying the creation of the State of Israel,

the 1948 _Nakba _(catastrophe in Arabic)_, _were consequences of abrupt withdrawals of British imperial authority.   During the same period, Afrikaner nationalists took power in South

Africa.   Any story of a steady, linear progress towards stable, co-operative nation states is inherently implausible. After independence of the Portuguese colonies and Zimbabwe in the 1970s

and 1980s, apartheid South Africa and the Israel-Palestine conflicts were left unresolved, unfinished business.  Negotiations within South Africa, resulting from the collapse of the Soviet

Union and the accumulated impact of sanctions, brought apartheid to an end in 1994.   It was possible to imagine the Oslo Accords (negotiated between 1993-1995) as a similar breakthrough,

drawing a line under conflicts between contending – ethnic – nationalisms. A Whig history of the decline of imperialism and settler colonialism leaving nationalism triumphant doesn’t

convince.  For example, the Kurdish population, somewhere between 30-45 million, greater than three-quarters of the UN’s member states, spread as minorities between Turkey (16%), Iraq, Iran

and Syria, achieved no such denouement. Back to the ongoing court drama in The Hague.  Hearings at the ICJ (mandated by the UN to litigate between States, not to be confused with the

International Criminal Court, founded in 1998, to prosecute individuals) are presided over by 15 experienced judges drawn from 15 different countries.  Ruling on the December 2023 South

African application, the 15 included allies of Israel, the USA, Germany, France, and Australia alongside South Africa’s fellow BRICS countries India, China, Russia and Brazil.   Two extra

judges were added for this contentious case: South Africa’s Deputy Chief Justice Dikgang Moseneke and the former Chief President of Israel’s Supreme Court, Aharon Barak. The very recently

retired President of ICJ who presided over the first hearing, Joan Donoghue, a former foreign policy adviser to President Obama, has explained that the court – almost unanimously — concluded

that South Africa had a right to present their claim to the court and the Palestinians had a “plausible right to be protected from genocide’”  After weighing the evidence, the ICJ found a

risk of “irreparable harm to the Palestinian right to be protected from genocide”.  Hence several provisional orders made by the court to the Israeli government directed at such protection.

  Donoghue emphasised that the ICJ had yet to rule on the plausibility of the South African claim that genocide was taking place.  A Ugandan, Julia Sebutinde, the current ICJ Vice-President,

was alone in sharing some of the Israeli Judge Barak’s dissenting opinions. The very day the ICJ, a UN body, delivered its first ruling on South Africa’s application, 26 January, Israel

alleged that 12 employees of the UN Works and Relief Agency (UNRWA) had participated in the Hamas attacks of 7 October. South Africa made a further court application on 6 March this year in

response to the deteriorating conditions in Gaza, stating that the Palestinians were “no longer facing only a risk of famine but that famine was setting in”.  On 23 March, the court ruled

that further urgent measures were required of South Africa, particularly that the military unblock, and permit immediate distribution, of humanitarian aid “in full cooperation with the

United Nations”. The distinctions made by the court are subtle, but none of their judgements suggest that South Africa’s formulation of their case was unreasonable, politically prejudiced,

improper or antisemitic.   Because of the constraints on journalists, disinformation, and “the fog of war”, the clarity of juridical thinking and observation, not of course infallible, is

particularly valuable.  The court commendably saw the war in Gaza through the lens of law meant to protect human rights.  South Africa received no standing ovation from the US Congress.

During apartheid, Israel offered close military and intelligence cooperation to the South African regime.  This included in the 1970s joint action in Angola. Investigative journalists and

the CIA both provided evidence of shared testing of a nuclear weapon in the southern Indian ocean.  In return for its support Israel got uranium “yellow cake” from South Africa’s then

South-West African colony, now independent Namibia.  Unsurprisingly, there was no love lost between the ANC, today’s South African governing Party, and the Israeli State. But South Africa’s

approach to the ICJ seems motivated chiefly by empathy with Palestinians in what their legal submission called the State of Israel’s “75-year-long year apartheid”.  Nelson Mandela’s words at

a 1997 solidarity event in Pretoria set a distinctive tone: “The temptation in our situation is to speak in muffled tones about an issue such as the right of the people of Palestine to a

state of their own.  We can easily be enticed to read reconciliation and fairness as meaning parity between justice and injustice. Having achieved our own freedom, we can fall into the trap

of washing our hands of difficulties that others face…. But we know too well that our freedom is incomplete without the freedom of the Palestinians…” Mandela tellingly did not describe

Israel’s relationship with the Palestinians as “apartheid”.  Instead, he talked simply about “the recognition that injustice and gross human rights violations were being perpetrated in

Palestine”.  This is clearly the problematic adopted by the ICJ court and could motivate the ICC to act against individual Israeli leaders. As Mandela’s speech also suggests, the unfinished

business of the 1980s is about peoples obtaining freedom for self-determination and statehood.  This is what linked Mandela’s South Africa and Palestine in solidarity then, and still does

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