The ICJ’s decision on ‘South Africa v Israel’ clarified
By Emeritus Professor Raymond Wacks
Should Israel from Philistian yoke deliver;
Ask for this great Deliverer now, and find him
Eyeless in Gaza at the Mill with slaves,
Himself in bonds under Philistian yoke …
John Milton, Samson Agonistes
Three months have elapsed since South Africa, donning the mantle of conscientious accuser, applied to the International Court of Justice (ICJ) under the Genocide Convention to secure a ceasefire as a ‘provisional measure of protection’. On 26 January, the Court ordered Israel to observe a number of requirements to prevent acts of genocide against Palestinians in Gaza, including the killing of Palestinians, causing serious bodily or mental harm to civilians, and ending the imposition of measures intended to prevent births. Israel was also directed to take immediate steps to permit the provision of humanitarian assistance to residents in Gaza. It was given a month to report on the steps it has taken to comply with this instruction. On 6 March, South Africa filed its third request for provisional measures.
Israel responded with a comprehensive repudiation of South Africa’s allegations which, it claimed, constituted ‘a familiar pattern of misrepresenting the reality; falsely attributing that purported reality to Israeli wrongdoing; and libellously assigning to Israel a malign intent that is simply not there.’ This new application to supplement or modify the provisional measures of 26 January, it averred, ‘hinges on a misrepresentation of reality and a sensationalist and obsessive attempt to accuse Israel of the most egregious crimes regardless of the law or the facts.’
This conflict stubbornly admits of no middle ground. It continues to ignite a polarising ideological feud between forces, often malevolent, which hinders rational debate. The ICJ judgment has merely inflamed passions and amplified the level of rancour and antipathy. There seems little room for a detached assessment of the crisis, or a path towards a scrupulous deliberation on the facts. Demonstrations in cities and on university campuses in many countries vilify Israel as a genocidal apartheid state that pursues a colonial policy of persecution against Palestinians whose ‘freedom fighters’ are merely expressing their right of self-determination after 76 years of oppression.
At Columbia University, for example, demonstrators chanted:
We say justice, you say ‘how?’
Burn Tel Aviv to the ground,
Ya Hamas, we love you,
We support your rockets too!
In my earlier piece published here soon after the Court’s decision, I suggested that it would be ingenuous to imagine that an age-old flashpoint would be susceptible to simple solutions, especially following the barbarism and depravity of 7 October -murder, rape, torture, abduction, arson, and pillaging – and amid the apocalyptic scenes of medieval privation and devastation in Gaza. I also contended that the ruling may have been misconstrued. It now appears that this may indeed have been the case.
In an interview on the BBC on 26 April, former President of the Court, Justice Joan Donoghue – who delivered the majority judgment – stated that what it actually decided was that ‘the Palestinians had a plausible right to be protected from genocide’ and that ‘South Africa had a right to present that in the court.’
The Court, she explained, ‘did not decide, and this is something where I’m correcting something that’s often said in the media. It did not decide that the claim of genocide was plausible …The shorthand that often appears, which is that there’s a plausible case of genocide, isn’t what the court decided.’
In other words, the countless media reports hailing South Africa’s ‘victory’ against Israel, and the jubilation, especially in that country, may have been somewhat misplaced and premature. Her message might be understood as ‘curb your enthusiasm!’
Nothing I have since read dislodges my earlier misgivings about the manner in which the case was presented and conducted. First, the Court ought to have considered whether the Genocide Convention is, in fact, the appropriate legal basis for the litigation. As both the ad hoc Israeli judge, Aharon Barak, and Justice Julia Sebutinde of Uganda (recently elected Vice-President of the Court) point out in their dissenting judgments, the framework of international humanitarian law (IHL) affords a more congenial legal foundation upon which the application should have been mounted. In the words of Justice Sebutinde:
What distinguishes the crime of genocide from other grave violations of international
human rights law is the existence of the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. Accordingly, the acts complained of by South Africa … can only be capable of falling within the scope of the said Convention if a genocidal intent is present, otherwise such acts simply constitute grave violations of international humanitarian law and not genocide as such.
IHL provides that harm to innocent civilians and civilian infrastructure should not be excessive as compared with the anticipated military advantage. The loss of innocent lives is not unlawful providing it complies with the rules and principles of this law. Similarly, the German judge, Georg Nolte, though he concurred with the majority, did not consider the test of genocide as having been met:
I am not persuaded that South Africa has plausibly shown that the military operation undertaken by Israel, as such, is being pursued with genocidal intent. The evidence provided by South Africa regarding the Israeli military operation differs fundamentally from that contained in the reports by the United Nations fact-finding mission on Myanmar’s so-called ‘clearance operation’ in 2016 and 2017 which led the Court to adopt its Order of 23 January 2020 in The Gambia v Myanmar.
It may be that the question of intent was not fully canvassed because, as Justice Donoghue has now made clear, the Court was considering only the extent to which there was a plausible risk that the Palestinians might suffer irreparable harm, or, whether their right to protection against such harm was plausible.
The Court uncritically concurred with the applicant’s assertion that various bellicose statements, uttered in the aftermath of the gruesome 7 October attacks, demonstrate the requisite intention by Israel to commit genocide. But is it unreasonable that, following the homicidal onslaught, which left at least 1,200 dead, many wounded, and some 250 taken hostage, certain Israeli political and military leaders would recklessly unleash clamorous calls to arms, promising vengeance and retaliation for the unspeakable suffering visited upon so many innocent citizens and foreigners?
To treat these spontaneous remarks – made in the heat of a national tragedy – as evidence of a state’s intention to commit genocide seems highly tendentious, particularly as they included comments uttered by individuals with no direct role in Israel’s military decision-making on the ground. They were, in any event, directed at the terrorists, not at the Palestinians or Gazans in general.
The decision, it seems to me, myopically minimised the defence pleaded by Israel. It is astonishing that the judges fail to acknowledge the critical fact that Israel is fighting an enemy that is demonstrably committed to the Jewish state’s annihilation. The 2017 revised (more ‘moderate’) Hamas Charter is explicit in its ambition to continue its resistance until Israel is obliterated:
Palestine symbolizes the resistance that shall continue until liberation is accomplished, until the return is fulfilled and until a fully sovereign state is established with Jerusalem as its capital … [Palestine] was seized by a racist, anti-human and colonial Zionist project …
This pronouncement requires little clarification.
Fourthly, the judges appeared to neglect the stark reality that Israel’s callous adversary conceals its fighters, weapons, and hostages in a vast subterranean city, and operates amongst civilians in schools, mosques, and hospitals. Imposing a ceasefire, as requested by South Africa, would, as many have pointed out, permit Hamas to regroup. Moreover, as Justice Sebutinde crucially recognises in her carefully reasoned dissent:
[The litigation] is complicated by the fact that in the context of an ongoing war with Hamas, which is not a party to these proceedings, it would be unrealistic to put limitations upon one of the belligerent parties but not the other. Israel would justifiably assert its right to defend itself from Hamas, which would most probably aggravate the situation in Gaza … It is difficult to envisage how one of the belligerent parties can be expected to unilaterally ‘prevent the destruction of evidence’ while leaving the other one free to carry on unabated.’
It is, fifthly, troubling that while the court explicitly abjures any finding of facts, it readily cites a plethora of evidence from various agencies of the United Nations whose neutrality is, at the very least, questionable. They include the Office for the Coordination of Humanitarian Affairs (OCHA), Under Secretary-General for Humanitarian Affairs and Emergency Relief, the World Health Organization (WHO), the UN Human Rights Council, and the Commissioner-General of (the recently discredited) UNRWA.
Finally, the judges fail to enquire whether South Africa’s application might be tainted by its cordiality towards Hamas. The country’s current government seems eager to be considered the conscience of the world. Its uncritical embrace of Hamas condemns it to ignominy from which it may never recover. A mere ten days after 7 October, South Africa’s foreign minister, Naledi Pandor, held a telephone call with the leader of Hamas, Ismail Haniyeh, to express the country’s ‘solidarity and support’ for the Palestinian people. This was followed by a delegation of three Hamas officials to Pretoria. She also visited Iran on 22 October 2023.
This affability with the Islamic Republic could, as Justice Sebutinde justly remarked, actually be put to constructive use:
It was brought to the attention of the Court that South Africa, and in particular certain organs of government, have enjoyed and continue to enjoy a cordial relationship with the leadership of Hamas. If that is the case, then one would encourage South Africa as a party to these proceedings and to the Genocide Convention, to use whatever influence they might wield, to try and persuade Hamas to immediately and unconditionally release the remaining hostages, as a good will gesture.
One shrinks from questioning the bona fides of the applicant’s case. But while it vehemently castigates Israel, its legal representatives barely mention the evil of Hamas and other Iranian proxies. Is it possible that the ANC’s longing to burnish its radical pro-Palestinian (and even pro-Iranian) credentials, blinds it to the suffering of the victims of these crimes? I sincerely hope I am wrong, and that its ostensible moral turpitude is imaginary – even if some have detected a whiff of antisemitism in the applicant’s case. Again, I want to be mistaken. It would be a bitter irony; many South African Jews were in the vanguard of the struggle against the injustice of apartheid. They were tortured, imprisoned, and vilified by the apartheid state. In his autobiography, Mandela reflects:
I have found [South African] Jews to be more broad-minded than most whites on issues of race and politics, perhaps because they themselves have historically been victims of prejudice.
He might have added that several had relatives who were victims of a genuine genocide at the hands of the Nazis.
*
It is likely to be years before the Court delivers its judgment on the merits. Defining genocide is not straightforward; it requires a specific intent to annihilate a group of people. The final ruling may provide guidance on its construction, and distinguish the crime of genocide from other violations of international law, including war crimes over which the ICJ has no jurisdiction.
It is by no means certain that the Court’s readiness to accede to South Africa’s application for provisional measures will translate into a finding against Israel whenever the day of judgment dawns. One hopes that by then the war will have concluded, and that some sort of peace will have been secured.
About the writer:
Raymond Wacks, Emeritus Professor of Law and Legal Theory, is the author of seventeen books, editor of ten, and numerous articles. His books have been translated into more than a dozen languages. They include Personal Information: Privacy and the Law; Privacy and Media Freedom; Privacy: A Very Short Introduction; Law: A Very Short Introduction; and Justice: A Beginner’s Guide. Among his most recent publications are Protecting Personal Information: The Right to Privacy Reconsidered; COVID-19 and Public Policy in the Digital Age; and National Security in the New World Order: Government and the Technology of Information (with Andrea Monti). The sixth edition of his Understanding Jurisprudence: An Introduction to Legal Theory appeared in 2021, as did The Rule of Law Under Fire? His latest book, Animal Lives Matter: The Continuing Quest for Justice, was published in February.
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