SA’s historic ICJ case moved legal world

Justice Minister Ronald Lamola addresses the media before the International Court of Justice South Africa presented its case against Israel last month. Picture: Remko De Waal/EPA

Justice Minister Ronald Lamola addresses the media before the International Court of Justice South Africa presented its case against Israel last month. Picture: Remko De Waal/EPA

Published Feb 2, 2024


Julian Kunnie

South Africa has made world headlines with its historic charges against Israel at the International Court of Justice (ICJ) in the Hague over that country’s genocidal actions in the occupied Palestinian territory of Gaza since October 7 last year.

The 84-page list of charges presented to the ICJ judges on January 11 by South Africa’s distinguished panel – headed by Justice Minister Ronald Lamola and including Dr Adila Hassim SC, Tembeka Ngcukaitobi SC, Prof. John Dugard SC, Prof Max Du Plessis SC, Ms Blinne Ní Ghrálaigh KC and Prof Vaughan Lowe KC – has collectively shaken the legal world globally for its systematic thoroughness and its employment of international law, specifically regarding the 1949 Convention on the Prevention and Punishment of the Crime of Genocide.

South Africa is being hailed as a moral and legal leader in international law, and for its courage in taking Israel – a leading ally of the United States – to task for genocidal war crimes. The US has funded the Israeli apartheid and settler-colonial state with $250 billion since its founding, at the cost of the Nakba (the catastrophe of extermination and dispossession) of the indigenous Palestinian people in 1948.

The South African government’s perseverance in demanding an end to the ongoing Israeli genocide in Gaza, and the shutting down of the Israeli embassy in Pretoria due to calls by leading political and social justice organisations and constant protests and marches, has been instrumental in restoring its image as an advocate and defender of the oppressed that had been fast eroding during the turbulent 30 years of post-apartheid freedom.

Pakistan carried a poster some days ago with the words, “Hats off to South Africa!”.

A total of 77 countries and organisations from all over the world supported South Africa’s charge of genocide against Israel at the ICJ, including the 57-member Organisation of Islamic Countries (OIC), Namibia, Colombia, Brazil, Malaysia, Maldives, Bolivia, Venezuela and the 22-member Arab League, and the Asociacion Nacional de Amistad Italia-Cuba in Italy, and the Collectif Judeo Arabe et Citoyen pour la Palestine in France.

These are particularly significant and historical developments, given the adversarial position taken by the Western capitalist countries in unconscionably and shockingly defending the genocidal apartheid regime of Israel.

South Africa and other aligned African countries could face possible economic and financial retaliation, from the US, for instance, for such actions.

The African Growth and Opportunity Act (Agoa), which provides for 1800 duty-free African product exports to the US market, could possibly be threatened.

Obdurately – and unmoved by the systematic Israeli bombing and extermination of children, women, infants, the elderly, patients in hospitals, mosques, churches, cemeteries, schools, etc, as well as Israel’s shutting off water, electricity, food and other vital elements for survival in Gaza – the US Secretary of State Antony Blinken and National Security spokesperson John Kirby called the ICJ charges “meritless”.

The latter added that the ICJ case against Israel was “counterproductive and completely without basis in fact whatsoever”, while the former stated it “...distracts the world...” from ensuring the release of Israeli hostages and addressing the humanitarian crisis in Gaza.

These statements are ironic considering that the US is the leading culprit that provided both weapons and political cover for Israeli actions in Gaza and refused to back a ceasefire at the UN Security Council repeatedly in November and December 2023 until the present.

Ironically, Israel has detained and imprisoned thousands of Palestinians as hostages in its apartheid occupation, unmentioned by the US authorities.

Yet South Africa remained steadfast, recalling at various points that Nelson Mandela, the first nationally-elected president, had made clear that South Africa stands with the colonised people of Palestine, and that the liberation of South Africa was incomplete without the independence of Palestine, since both nations have suffered tremendous colonialist repression and have always been allies in the collective struggle to remove the chains of oppression.

Exposing the complicit and enabling role of the US, itself a settler-colonial nation, particularly in the escalating genocide in Gaza, is the fact that the US Congress authorised an aid package of $14.5 billion to the regime in mostly military aid, including supplying 2000-pound bunker-buster bombs, of which 200 were dropped by Israel on civilian homes and neighbourhoods in Gaza, as was pointed out by Adila Hassim at the Hague, in violation of US arms sales laws and compounding the violence and death by the Israeli military regime.

The resulting carnage has shocked and angered much of the world, with the exception of governments such as the US, Britain, Germany and France, though millions in each of these countries continue to forcefully demand an end to the ongoing genocidal Israeli actions in Gaza as well as the military onslaught in the West Bank.

The reason why the Israeli actions have been particularly heinous and so outrageously repugnant is that news cameras and streams of the ongoing bombing of hospitals, schools, roads, agricultural fields, civilian homes, etc have been broadcast on the web as the extermination unfolds. Pictures of doctors performing procedures on the wounded without anaesthesia (Israel has finally allowed aid via truck delivery through the Rafah Crossing at the Egyptian border, all at a snail’s pace since the Israeli military has three security checks and has presented numerous obstacles to disbursing desperately-needed food, water, medicinal and sanitation supplies) have caused anger among billions the world over.

The deliberate targeting of children, including babies on oxygen in incubators, 50 000 pregnant women, doctors (over 400 murdered), journalists (112 killed, more than the entire duration of the US war against Vietnam in the 1960s-70s), youth and the killing of entire families, have demonstrated that the Israeli apartheid regime is bent on a path of deliberate ethnic cleansing and genocide, a systematic annihilation of women and children, as a way of reducing the growing numbers of Palestinian people, all abetted and funded by the US.

Hence South Africa’s charge of genocide filed against Israel at the ICJ, particularly invoking Article II, which states: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

Article IV further states: “Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”

Further, Article I of the Convention on the Prevention and Punishment of the Crime of Genocide permits action on the part of a country to halt the genocide in another country and states: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”

Thus, both South Africa and Yemen have adopted moral positions in first documenting the Gaza genocide and charging those responsible, Israel, for genocidal crimes, in the former case, and second, in the latter case, preventing the crimes of genocide by halting ships that are transporting materials to the Israel regime and sacrificing its own well-being and suffering under famine and prior relentless Saudi bombing to save another people from ethnic extermination.

For this defensive stance of Palestine in the attempt to stop the genocide, Yemen has been subject to US and British bombing in retaliation, though Yemen made clear that all shipping is safe in the Red Sea, except for those vessels headed to Israel.

Cape Times