‘It’s a holiday,’ said SA when Israel wanted to talk about the genocide charge

Henry

While the world awaits the verdict on South Africa’s genocide complaint against Israel in the International Court of Justice, experts are debating how strong the case really is. However, with possible procedural and substantive holes in the case, a big victory for South Africa is not so certain.

Inadequate procedure followed

According to prof. André Thomashausen, emeritus professor of international law at Unisa, South Africa made the first misstep even before the case was filed.

Article 9 of the Genocide Convention of 1948, on the basis of which the charge is laid, stipulates that there must be a dispute between two states for the International Court of Justice to have jurisdiction.

“This is not just a sentiment, there must be sufficient interaction between parties before a case can be brought. South Africa is dishonest in this regard.”

The requirements include that the parties involved, Israel and South Africa, first try to resolve the dispute outside the court in bilateral talks before they can approach the court as a “last resort”.

Israel claims that on 22 December 2023 South Africa sent it an official diplomatic communication in which South Africa raised objections about “genocide”. Israel immediately responded to this with an assurance that they will soon return to South Africa with information and proposals for official discussions. When Israel wanted to set the date for these discussions, the Department of International Relations and Cooperation notified on December 27, 2023 that the office was already closed for the holidays and therefore they were not accepting any communication. Two days later, on 29 December 2023, South Africa’s application was submitted to the court.

Prof. Hennie Strydom, professor of international law at the University of Johannesburg, explains that the court only has jurisdiction and can hear the case if a dispute has been declared according to the requirements.

If South Africa has indeed ignored Israel’s writings and requests, the court may find that a dispute was never declared.

This is a major fundamental error that could potentially sink the case, explains Thomashausen.

Strydom believes that in the past, in similar cases, the court has tried to rule in favor of valid disputes if there is reasonable evidence of a dispute. Because it is such an important case, the court will probably rule favorably on the dispute requirements so that at least the interim measures can be granted, says Strydom.

“However, the court cannot leave gaps in its reasoning (about the jurisdiction) because this poses a risk for the court.”

Genocidal intent

If South Africa does overcome the procedural hurdle, (1) genocidal intent as well as (2) the possibility of genocide must also be proven for a successful complaint.

According to Thomashausen, a victory for South Africa is highly unlikely.

“The large number of people involved in this case (on South Africa’s side) does not make up for their lack of wisdom about or knowledge of international law.”

According to Thomashausen, Israel has presented legions of evidence that it goes out of its way to mitigate the number of losses and suffering of people in the exercise of its self-defense against Hamas. On the other hand, according to him, South Africa presented several insufficient and dishonest evidence to the contrary.

“Not every insult is an assault. Not every death is a murder. Not every use of military force or even a war crime is genocide.

“Not every terrible humanitarian crisis in Gaza is genocide as such.”

Strydom believes that proving genocidal intent is difficult and South Africa is unlikely to succeed in this. The application for interim relief is more likely to succeed because the onus is much lower with only the possibility of genocide or future genocide having to be proven.

The case is not completely watertight, but it certainly has the merits that the case can be decided in South Africa’s favour, says Strydom.

“South Africa, which filed this complaint, (therefore) does not, on the face of it, fall into the category of diplomatic missteps.”

Thomashausen thinks again on a purely academic level “I would have thrown this case out if I were the court” because South Africa viewed on the twill “does not constitute a good case”.

Alternative routes

“Although this is a major crisis, it is not one that can be solved by the 17 judges of the International Court of Justice,” says Thomashausen.

According to him, a UN peacekeeping mission together with humanitarian aid should instead be sent in so that a peace conference can be held.

“If (South Africa) instead, like Ukraine did against Russia in the IG, raised arguments of aggression or war crimes, that is a different story and you move to other international instruments.”

Strydom again believes that, given the current facts, this was the best international legal instrument to use in an attempt to stop humanitarian atrocities – especially in light of the fact that diplomatic pressure has so far yielded little fruit.

“The dispute option in the Genocide Convention was actually at that stage the most suitable measure to exercise intervention.”

Prof. Koos Malan, constitutional juris attached to Sakeliga’s center for constitutional dynamics, believes that South Africa should not have been involved in the case from the beginning.

“South Africa enjoys no bona fides with the Israeli government. A state that has built up such a record of partiality with one party has actually completely distanced itself from any political influence on the course of affairs.”

According to Malan, the only states that can really intervene in this conflict are the USA, India, Russia, China and a regional power such as Egypt or Qatar.

“It is only these states that can and should do it. South Africa has no bona fides, power or influence and does not belong in the fray at all.

“On top of that, this case doesn’t really enjoy much international support either. China, Russia and India are tight-lipped about this, which is a big problem because they are South Africa’s biggest Brics allies.”

Germany’s entry is also something that weighs heavily in favor of Israel and weighs heavily against South Africa, says Malan.

True intentions

Why then exactly did South Africa enter the fray?

Thomashausen believes that Ronald Lamola’s statements, Minister of Justice, indicate something about the government’s motivations: “At least we highlighted the humanitarian crisis of the Palestinians to the world.”

Malan again strongly doubts that the government has any moral motives behind this.

“This has nothing to do with any moral issue, but rather with the ANC’s self-interest and image-polishing.”

The most important reason for the genocide charge is for the ANC to “show off on an international forum to give the impression that it is strong in the midst of the reality that it has failed”.

Accession to the case stems much more from South Africa’s weakness than its power, explains Malan.

Strydom also highlights further speculation that Iran helped the ANC as a party out of financial trouble, with the ANC consequently helping to push this case.

“There is no evidence in this regard, but it is a matter that should definitely be investigated further.”