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South Africa’s grossly one-sided application before the International Court of Justice merits comprehensive condemnation.
The South African government, ever cash-strapped, has found enough money between the couch cushions to recruit an army of advocates and attorneys to pursue its genocide case against Israel before the International Court of Justice (ICJ), starting on Thursday 11 January 2024.
It has hired (at whose expense is unclear) no fewer than four senior counsel, namely John Dugard, Max du Plessis, Tembeka Ngcukaitobi and Adila Hassim. In addition, it has hired attorneys Sarah Pudifin-Jones, Lerato Zikalala and Tshidiso Ramogale, as well as external counsel Vaughan Lowe KC and Blinne Ní Ghrálaigh KC.
Israel, being a party to the Genocide Convention (unlike Palestine), is obligated to send its own representatives to the ICJ to answer the application filed against it. It has chosen a team of attorneys led by renowned barrister Malcolm Shaw KC, an expert on international law, human rights and territorial disputes.
Panel of 15
The ICJ, unlike the International Criminal Court, judges countries, and not individuals. It is the principal judicial organ of the United Nations (UN), and comprises a panel of 15 judges, each highly qualified, elected by both the UN General Assembly and UN Security Council.
It is a requirement of the court that these judges represent a diversity of the world’s legal systems and forms of civilisation, and the panel may not include more than one national from the same state.
Judges, once elected, do not act as representatives of their countries, but are to be independent. Even so, each party to a case may, if it is not represented on the bench, nominate an additional judge to serve on the panel.
South Africa has nominated former deputy chief justice Dikgang Moseneke to be its ad-hoc judge on the ICJ panel, and Israel has named the former president of its supreme court, Aharon Barak, to serve on the bench.
The current 15 permanent judges on the ICJ hail from the United States of America, the Russian Federation, Slovakia, France, Morocco, Somalia, China, Uganda, India, Jamaica, Lebanon, Japan, Germany, Australia and Brazil.
One-sidedness
It is notable that while the South African government had remained silent except in the vaguest of terms about the harrowing attacks on 7 October 2023 against Israeli civilians, it claims to have issued a Note Verbale to Israel on 21 December 2023, only days before filing the application at the ICJ, in which it ‘unequivocally condemns the targeting of Israeli and foreign national civilians by Hamas and other Palestinian armed groups and the taking of hostages on 7 October 2023’.
This is clearly a cynical last-minute ploy to immunise itself against the allegation that it condemns Israel, but not Hamas.
(It doesn’t condemn Hamas. It wore Palestinian scarves, called the Hamas leadership for a chit-chat, and invited Iran for tea, in the wake of the 7 October attacks.)
In an 84-page application consisting of 151 numbered paragraphs, South Africa only devotes three paragraphs to the Hamas attacks, superficially noting only the number of reported deaths and the number of hostages taken, and not the sadistic brutality of the attacks. It mentions ongoing rocket attacks against Israeli civilians only once.
It does not call for any consequences against Hamas or the Gaza territory of which it is the lawful government for the 7 October attacks. It does not propose that Israel has the right to self-defence against such attacks.
The Palestinian State acceded to the Genocide Convention in 2014, and despite not being a full member of the UN, has declared that it accepts the competence of the ICJ to settle disputes.
Therefore, it could be bound by an ICJ ruling on its 7 October attack, or its continued missile attacks against Israeli civilian targets, or on the assertion by senior Hamas leaders that such attacks against civilians will be repeated again and again.
Yet the South African application seeks remedies only against Israel, and not against Palestine.
Falsely accused
This mirrors a long-standing lack of even-handedness in Israel’s treatment at the hands of the United Nations and other supra-national organisations.
‘Unfortunately, because of the [Israeli-Palestinian] conflict, Israel has been weighed down by criticism and suffered from bias – and sometimes even discrimination’, said former UN secretary-general Ban Ki Moon, in 2013.
It isn’t the first time that Israel has been falsely accused of targeting civilians.
South African justice Richard Goldstone, appointed by the UN Human Rights Council to investigate allegations of war crimes during the 2008-2009 Gaza War, concluded that both Israel and Palestine unlawfully targeted civilians, making them both guilty of war crimes and possible crimes against humanity.
While that report stands, Goldstone later wrote an op-ed in which he withdrew the claim that Israel intentionally targeted civilians, saying the commission he led did not have all the facts.
‘If I had known then what I know now, the Goldstone report would have been a different document’, he wrote, as if the Washington Post is an organ of any legal standing.
The South African application before the ICJ relies heavily upon the Goldstone report, quoting it at length.
Problematic
One of the authors of South Africa’s ICJ application, John Dugard, has been singled out by the Anti-Defamation League (ADL) as one of ‘the most problematic Special Rapporteurs’ of the UN Human Rights Council.
In 2004, the ADL called for his dismissal over his ‘clearly demonstrated bias against the State of Israel’.
Dugard’s report on the human rights situation in Palestine was rejected by Israel as ‘a platform for advancing a political agenda’.
The ADL accused Dugard of presenting personal convictions as fact, and going well beyond reporting facts, to an incendiary call for action by the international community against Israel.
There is little to no mention, the ADL argued, of Palestinian involvement in terrorism against Israel, of Palestinian arms-smuggling tunnels, or rocket attacks against Israeli towns. In stark contrast, Israel’s security considerations are ignored, or dismissed. Dugard further presents as fact his own views as to the underlying motivations for Israeli policy.
‘John Dugard has clearly demonstrated bias against the State of Israel, by using his official position as a U.N. fact-finder to present his personal anti-Israel views’, said Abraham H. Foxman, national director of the ADL, at the time. ‘For that we call on the Secretary General and the High Commissioner for Human Rights to immediately dismiss him.’
Ignored facts
In my previous column, I mentioned that the application ‘rejects’ certain relevant facts, such as that Hamas militants are embedded within the civilian population, operate from civilian structures such as mosques, schools and hospitals, and uses civilians, including children, as human shields.
Hamas has, as a matter of military strategy, made it impossible to attack its military personnel and infrastructure without also causing significant civilian casualties.
That the application rejects these facts isn’t quite accurate. It ignores these facts, just as Dugard did back in 2004. Its recounting of the facts, therefore, is one-sided and cherry-picked, and not an honest, unbiased reflection of the true situation.
Likewise, in listing actions that are allegedly genocidal in intent, the application doesn’t even contemplate any other possible motives for the actions it criticises, such as military necessity, the protection of its own forces or people, deterrence, or unavoidable collateral casualties.
Inferring genocidal intent when no alternative motives were even considered must surely be a step too far for the ICJ.
Rash statements
The application relies heavily on statements by Israeli officials or military commanders to suggest that genocide is the intent of official Israeli policy.
That people make rash statements in the heat of anger and war should not be surprising.
Ask any soldier what they’ll do to the enemy, and your answer will not likely be very diplomatic. Ask any politician whose country has been brutishly attacked how the country should respond, and you will hear impolitic expressions of vengeance.
Some of the cited statements were indeed beyond the pale, such as deputy speaker of the Knesset and member of the Likud party Nissim Vaturi saying that Israel had been ‘too humane’ and should instead ‘burn Gaza now’.
But Vaturi is a member of parliament, and not a member of the executive. Statements by parliamentarians do not reflect official government policy, any more than ‘Kill the Boer’ is the official policy of the South African government.
Another statement, made by cabinet member Amichai Eliyahu, that a flattened Gaza was a beautiful sight and that nuking it was an option, was very quickly disavowed by Prime Minister Benjamin Netanyahu, who also suspended Eliyahu from his position as Minister of Heritage.
One cannot infer official military policy from a statement of a minister of heritage, and even if one could, the fact that it was quickly renounced by the Israeli prime minister tells you all you need to know about the validity of the statement.
Tellingly, South Africa’s application deliberately omits the relevant fact that Netanyahu disavowed Eliyahu’s intemperate statement and suspended him from office.
Many other people quoted in the application likewise do not hold positions from which they are able to express or influence official Israeli policy or strategy.
Many other statements cited in the application stop far short of clearly expressing genocidal intent towards Palestinian civilians.
And many of these statements were specifically contradicted by formal and official statements of policy made by legitimate political or military authorities.
Not that you’d know it from South Africa’s application to the ICJ.
As this excellent analysis of South Africa’s application concludes, the fact that the South African government selects the intemperate public comments by people who are not entitled to express policy, do not affect policy, and for the most part are critics who think the Israeli government is too soft on the Palestinians, actually strengthens the case that the intent of official Israeli policy is not genocidal.
‘Plausible’
The application before the ICJ does not ask the court to rule on the merits, in the first instance. It requests ‘provisional measures’ to be ordered before the court has determined anything.
I quote: ‘For the purposes of indicating provisional measures, the Court does not need to establish definitively that Palestinians are at risk of genocide, that they are being subjected to genocidal acts, or that Israel is otherwise breaching its obligations under the Genocide Convention. Rather, it is sufficient that the obligation of South Africa to act to prevent genocide, or the right of South Africa to seek compliance by Israel with its obligations under the Convention not to commit genocide, and to prevent and punish genocide and related prohibited acts under the Convention, be “plausible”.’
So, just because what South Africa’s government said could be true, it wants the court to order a halt to Israel’s military action.
It seeks an immediate and total cessation of the war against Hamas. The death or inconveniencing of even a single Palestinian would violate the provisional measures.
No measures of any kind are to be imposed upon Gaza, its Hamas government, or its Palestinian citizens.
Hypocrites
South Africa, therefore, supports a situation in which militant Palestinian groups are free to continue their attacks upon Israel, while Israel is to be prevented from defending itself or retaliating in any meaningful way, because Israeli deaths don’t matter, but even a single Palestinian death constitutes ‘genocide’.
The contrast with the South African government’s lenient position towards Russia’s aggression against and invasion of neighbouring Ukraine couldn’t be more stark.
This application is filed by a bunch of hypocrites who are ideologically biased against Israel, seek to deceive the ICJ with one-sided statements, and display all the moral character of gnats.
The ICJ should throw the entire application out with the contempt with which it was written.
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