January 16, 2024
ISLAMABAD – South African international lawyers frequently appeared before the International Court of Justice in the 1960s. At the time, they were tasked with justifying their apartheid in Namibia. And they did. They argued that apartheid was good for everyone, that it prevented racial conflict and ‘decline’, that different people were at different stages of their development and so required different laws.
Their memorial to the court reads today like a banned subreddit containing “extensive references to the phenotypical characteristics of different tribes, the precise colour of their skin and the shape of women’s breasts” to justify what they called their policy of ‘separate development’.
How amazing that some decades later, black South African lawyers are arguing before the same court that a country that collaborated with their racist government should be held responsible for a genocide.
The applicant is South Africa
While some argue that it is a matter of shame that no Arab or Muslim state lodged the case, leaving the task to South Africa, I maintain that it is exactly this — that a non-Arab, non-Muslim nation and one which has overcome settler colonialism has brought this case — is what makes it so compelling.
Once South Africa became democratic, its new government, the African National Congress and the Palestinian Liberation Organisation were so close their ties were referred to as fraternal. Yasser Arafat was one of the first leaders Mandela met after being released from prison in 1990 and he was one of the first foreign leaders to speak at South Africa’s newly democratic parliament.
The head of South Africa’s legal team, John Dugard, was UN Special Rapporteur for Palestine in the 2000s and notably said: “I’m a South African who lived through apartheid and I have no hesitation in saying that Israel’s crimes are infinitely worse than those committed by the apartheid regime of South Africa.”
There could be no better applicant for these proceedings than this former apartheid and colonised state and one against whom Israeli accusations of libel and anti-Semitism are less likely to stick.
The allegations are genocide
South Africa has alleged that Israel has committed a genocide against the Palestinian people. While most people understand genocide to mean mass killings of civilians, for international lawyers, it is a term of art.
Genocide requires the intent to destroy, in whole or in part, a national, ethnic, racial, and religious group. It is possibly the most difficult international crime to prove because it requires the ‘special intent’ to destroy the group. Mass extermination without that special intent is a crime against humanity but it is not genocide. The term genocide was coined after the Second World War by Polish lawyer Raphael Lemkin who wanted a category of crimes to denote the Holocaust where Jews were killed with the specific intent to annihilate them as a group.
There is no numbers requirement for a crime of genocide — either in victims or perpetrators. A lone individual, acting by himself, having killed only one person could have committed genocide, so long as it was done with that special intent. The killing of six million Jews in the Holocaust was as much a genocide as was the killing of 8,000 military-aged Bosnian Muslim men in Srebrenica.
While genocide is known as the ‘crime of crimes’, I do not believe it is. There are no hierarchies of crimes under international law. A genocide can be as bad as a crime against humanity or a war crime. To argue that genocide is the worst crime would mean that the Khmer Rouge’s atrocities in the killing fields of Cambodia against their own ethnic group — a ‘mere’ crime against humanity — were not as bad as the forcible transfer of Aboriginal children in Australia into white families in an attempt to ‘breed out the black’ — a genocide. While suffering can be categorised, it cannot be ranked.
The reason genocide is being argued before the court is largely jurisdictional. While Israel has ratified the Genocide Convention of 1948, there exists no such treaty that gives the ICJ jurisdiction over crimes against humanity or war crimes. So if it is not genocide, but a crime against humanity or war crimes, the ICJ has no place to act. At this stage, it’s either genocide or bust.
So is it genocide?
Over the two days of hearings, South Africa has alleged that Israel has committed genocide by killing Palestinians, subjecting them to serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction. It argues that this has been done by the “sustained bombardment, forced evacuation without adequate shelter in which they continue to be attacked, killed and harmed”, and by “failing to provide or ensure essential food, water, medicine, fuel, shelter and other humanitarian assistance for the besieged and blockaded Palestinian people, which has pushed them to the brink of famine”.
South Africa further argues that Israel has done all of this with genocidal intent. It has produced pages upon pages of evidence of this intent with statements from Israel’s president, prime minister, minister of defence, officials of the Israel Defence Forces, and other government officials.
Israel has meanwhile countered that it is not genocide, that the statements were taken out of context and are about Hamas and not the Palestinian people, and that Israel has done everything it can to spare civilian life and mitigate casualties, something it would not do if it had genocidal intent. “Not every conflict is genocidal” its lead counsel told the Court, arguing as well that Israel has a right to self-defence and that its means and methods of warfare comply with the laws of war.
A lot of people have been asking me what I made of the arguments. South Africa’s advocacy was definitely better, both in style and substance. Israel largely wasted time by expressing its same rhetoric about Hamas (even going so far as to claim that South Africa enjoys close ties with Hamas and could itself be genocidal).
But the ICJ is less like an American or British courtroom where advocacy matters; it places far more emphasis on truth-seeking. When the US didn’t appear before the court in its case against Nicaragua, the ICJ addressed all the arguments that it felt the US might have made to do justice to the case. Here, South Africa has a difficult hill to climb — that of proving Israel is trying to destroy the Palestinians in Gaza with intent.
The request is for an injunction
But South Africa doesn’t have to prove genocide yet. For now, they have asked for an injunction given the risk of irreparable harm and urgency to Palestinians if the court doesn’t act now. South Africa has asked that Israel be ordered to stop military operations, do everything it can to prevent a genocide and allow humanitarian aid into Gaza.
The court issues injunctions only when it is satisfied that the case would be ‘plausible’, in that it might be found that there could be a genocide when the merits are decided.
Given the huge amount of evidence brought to the ICJ by South Africa and its previous precedent, it is unlikely, I think, that the court will decide that there is not at least a plausible risk of genocide and harm to Palestinians. It would be tricky though for it to order that Israel stop its military operations given what that means for Israel’s right to self-defence. I’m expecting the court to sidestep that issue and leave it for the merits but to give a protective order nonetheless.
The ruling may not be enforced
Even if that ruling comes, Israel will probably ignore it. Under Article 94 of the UN Charter, the Security Council can issue a resolution directing a state to comply with the ICJ’s order, but the US will likely veto this. Even still, the ICJ’s ruling would give moral and legal weight and influence state’s actions, in imposing sanctions or boycotting Israel, for failing to comply.
South Africa is the best example of this. When the ICJ ruled that South Africa’s occupation of Namibia was illegal, it served to help end that occupation. Despite the US under Reagan and the UK under Thatcher using their veto to stop sanctions against South Africa at the time, it took decades, but eventually, the apartheid regime was toppled and the occupation ended.
The responsibility is legal and moral
South Africa emphasised to the court that it filed the application to comply with its own legal obligation to prevent a genocide as well as a moral one.
In stark contrast, Germany has announced it will intervene in favour of Israel before the ICJ. Its arms sales have surged to Israel since October 7, while the Israeli army bombs homes, refugee camps, schools and hospitals.
In the words of Indian essayist Pankaj Mishra, “the German authorities risk failing in their responsibility to the rest of the world: never again to become complicit in murderous ethnonationalism”. This is a responsibility South Africa is upholding.