SA vs. Israel: Much at stake in international court battle

Henry

South Africa’s charge of genocide against Israel will soon be heard in the International Court of Justice in The Hague, with many questions about whether there is merit in the government’s case and whether the South African government has a chance of success in the United Nations ( UN’s highest court.

Some critics of the decision argue that the government is riding the wrong horse.

The South African government maintains that there are continuous reports of international crimes, such as crimes against humanity and war crimes being committed, as well as reports that acts bordering on genocide have been committed or may be committed.

The South African government also says that as a signatory to the Convention on the Prevention and Punishment of Genocide, it is obliged to prevent genocide from taking place.

Israel, which has not yet submitted its counter-application, reacted with great dismay to South Africa’s complaint and said that this country “rejects with contempt the blood libel that South Africa and its application are spreading”.

Prof. However, Hennie Strydom, a professor of international law at the University of Johannesburg, believes that there are certainly grounds for South Africa’s application – which consists of two parts – in the court.

The first is that South Africa wants a finding from the court that indicates that the military offensive, especially the way in which it is now being implemented, and its consequences amount to a violation of the Genocide Convention of 1948 of which South Africa as well as Israel is a signatory.

To make a decision in this regard, the court will look at the evidence before it as with any other case and then come to a finding.

The second aspect, and also the most important for now, is the application to introduce interim measures in order to protect the civilian population.

“It is a normal process that takes place in such cases. One of the orders they (South Africa) are asking the court for is that Israel cease its military action and will take all possible measures to prevent genocide from taking place.

“As far as this aspect of the case is concerned, the burden of proof is actually very low. All that South Africa has to demonstrate is that there is a reasonable possibility that, if the interim measures are not granted, this could result in the Palestinian population seriously exposing themselves to further dangers to their safety, including the distress in which they traffic due to the destruction of their infrastructure.

“On that point, I think South Africa does have a very good chance of getting an order from the court in this regard,” Strydom explained to RNews.

He says that this will mean that the court points out that at this stage there is sufficient evidence that genocide is being committed or could be committed if the conflict continues on the current trend.

Decision also affects other members

Such a decision could have far-reaching consequences for other members of the Genocide Convention, who would then have to take steps against Israel to support interim measures. This includes the US, which has so far supported Israel and left it out strongly on South Africa’s complaint.

“In such a case, the USA will have to take a stronger stance and, for example, stop its arms trade with Israel.”

It could even lead to the US stopping its financial aid to Israel if it does not comply with the measures. However, Strydom is unsure whether the US will make such a decision.

He says it comes down to other members of the Genocide Convention having to clearly indicate that there will be consequences if Israel does not stop its actions – something that has not happened so far.

“These interim measures are of course pending the decision of the court on the merits of the case, which is the second phase of the application.

“However, the first phase is an urgent matter, so we should soon see a finding in that regard.”

Strydom admits that South Africa’s step to denounce Israel is indeed a far-reaching one, but says that the arguments in their application are well summarized and that there is indeed support for South Africa’s case.

“There are certainly grounds for this case and South Africa is acting in terms of Article 9 of the Genocide Convention. Any member of the Genocide Convention could have submitted this application.”

He emphasizes that a distinction must also be made between the government’s support for the Palestinian community and its alleged support for Hamas.

“South Africa has a strong history of support for the Palestinians and there must be a separation between Hamas and the Palestinian population. South Africa strongly condemned Hamas’ attack on 7 October – also in its application. I think it’s fair to say South Africa has a sentiment towards the Palestinians, but I don’t think it’s fair to say South Africa is a supporter of Hamas and I don’t think the application is based on that.”

Strydom says that Israel’s counter-evidence will of course have a significant influence on the merits of the case, and that only then will one be able to say with certainty whether it strengthens or undermines South Africa’s case.

‘Israel’s evidence significant’

Prof. Koos Malan, legal expert, is of the opinion that Israel will indeed be able to provide sufficient evidence in its counterargument to show that there is no intention to commit genocide.

In addition, he is not convinced that South Africa’s efforts to prove the contrary will succeed.

Malan says South Africa relies heavily on, among other things, fiery statements by some Israeli government and political spokesmen that Gaza should be wiped out, as it were.

He believes that these spokespersons – not the cabinet itself – did make devastating statements that include the entire Gaza population. This may indeed indicate that Israel aims to destroy Gaza, regardless of the implication for civilians.

However, it is important to note that these are only statements by some spokespersons, says Malan.

He also refers to the more than 22,000 people who have already died in the war – which also forms part of the South African government’s burden of proof. Along with this, tens of thousands of people have been injured while more than 1.9 million Gazans have been displaced in one way or another.

“The testimony of the Israeli government is probably going to be the following: They are going to say ‘listen, if we wanted to raze Gaza to the ground, there would not be 22,000 people dead, but 200,000. This testifies to the fact that we are not the so-called has no intention of exterminating everyone and committing genocide’.

“Then the Israeli government and army repeatedly said that it made 70,000 phone calls to people in Gaza to say ‘we are going to attack your territory soon, give way’. They sent millions of WhatsApp messages and distributed something like seven million leaflets before striking a particular area.

“So they warned people. Based on that, you can say that an intention to commit genocide is lacking, because the army obviously tried to take precautions to avoid it.”

According to Malan, this is how the second side of the case will probably look before the more than 17 judges in the Court of Justice.

Clayson Monyela, spokesperson for the Department of Foreign Relations and Cooperation, has meanwhile indicated that South African judge Dikgang Moseneke will also sit on the bench.