South Africa’s ICJ Case Against Israel: A Judicial Stress Test for the Multilateral System

The South African application to the ICJ argues that Israel’s military attacks are “genocidal in character because they are intended to bring about the destruction of the … Palestinians in Gaza” (ICJ, 2023, Article 1). The ICJ has been tasked to “indicate provisional measures to protect the rights” of the Palestinians in Gaza, in line with 1948 Convention on the Prevention and Punishment of the Crime of Genocide. This would generate a binding judgment that Israel would be required to adhere to, given that Tel Aviv agreed to engage with the contentious proceedings of the Court on 11th and 12th January 2024.

The Court has been quietly considering a number of cases since its inception, but the South African application has now thrust it into the epicenter of geopolitical contestation. The manner in which the ICJ will conduct and execute its functions will be closely monitored and interrogated by a broad spectrum of political and societal opinion. In effect, all eyes are now on the International Court of Justice!

Why did South Africa make the Application to the ICJ?

Historically, the struggle to liberate South Africa from the brutal yoke of apartheid’s institutionalized racism, which was formally established in 1948, compelled it to build solidarity networks with a broad spectrum of actors, including the Palestinians. The post-1994 governing party in South Africa, the African National Congress (ANC), has maintained a consistent posture in support of the Palestinian’s quest for self-determination and the establishment of an independent State of Palestine. The enigmatic freedom fighter and first President of post-apartheid South Africa, the late Nelson Mandela, was unflinching in his advocacy and stated repeatedly that “we know too well that our freedom is incomplete without the freedom of the Palestinians.” The Party’s 6th Policy Conference Report states that “recognizing that South Africa and Palestine share the same struggle … the ANC should continue to … intensify its solidarity with the people of Palestine … by working with solidarity organizations and progressive forces domestically, regionally and continentally” (ANC, 2022, Paragraph 44, p.73). Failure to understand this historical link and the contextual background, can lead one to dismiss South Africa’s application to the ICJ as being fueled by other prejudices.

The onset of the military incursion and bombardment of Gaza prompted South Africa to mobilize geopolitical action. On 21 November 2023, President Cyril Ramaphosa convened and chaired a virtual BRICS Extraordinary Joint Meeting on the Middle East Situation with particular reference to Gaza. The meeting included leaders from Brazil, Russia, India, China, Saudi Arabia, Argentina, Eygpt, Ethiopia, Iran, the United Arab Emirates, and included the UN Secretary-General, Antonio Guterres. The Chair’s Summary of the BRICS meeting stated that “the acts of violence against the Palestinian and Israeli citizens were condemned, including war crimes, indiscriminate attacks, and the targeting of civilian infrastructure” and called for the “immediate and unconditional release of all civilians who are being illegally held captive.” In addition, the BRICS statement further condemned the military assault against Gaza and stated that they “constitute grave breaches of the Geneva Conventions and war crimes and violations under International Humanitarian Law.” In this regard, South Africa’s pursuit of the case at the ICJ was a logical progression from this geopolitical action that it was spearheading.

Significantly, South Africa was one of five countries that referred Israel to the International Criminal Court (ICC), alongside Comoros, Djibouti, Bolivia, and Bangladesh. Conscious of the politicized nature of the ICC, and the selective and biased posture of previous ICC Chief Prosecutors, who tend to be beholden to the Court’s donors who are predominantly from the Western countries, it would appear that South Africa simultaneously embarked on compiling the 84-page submission to the ICJ to make a determination of genocide against Israeli military assaults in Gaza.

The South African legal team is led by Professor John Dugard, a former member of the United Nations Law Commission and professor of international law at the Universities of Cambridge (United Kingdom), Leiden  (The Netherlands), and Witswatersrand (Johannesburg). The other senior legal team members include Advocate Tembeka Ngcukaitobi, Professor Max Du Plessis, and Advocate Adila Hassim who have all extensive experience and distinguished careers including conducted cases before the Constitutional Court and the Supreme Court of Appeal in South Africa. The Team Leader Professor Dugard has been fairly vocal in criticizing what he refers to as the illusion of a so-called “global rules-based order”. More specifically, Dugard has argued in an article published by the Leiden Journal of International Law, entitled ‘The Choice Before Us: International Law or a “rules-based international order”', that he does not know what the term “rules-based international order” means because it has no basis in international law, international humanitarian law or the Rome Statute establishing the International Criminal Court (ICC) (Dugard 2023, p.223). Through his leadership of the South African legal team, Dugard will be testing the proposition that what we have is international law and not some nebulous public relations-generated notion of a so-called rules-based order.

A Judicial Stress Test for the Multilateral System

South Africa’s application to the ICJ was an innovative use of the international institutions which have been established to manage and curtail the use of violence and to contain the threats to “peace and security” as stipulated in the UN Charter. The ICJ can draw from a broad range of sources to inform its deliberation and ruling on cases, which means that all of the evidence that has been collected and documented relating to Israel’s invasion of Gaza can be considered by the judges. Given the incendiary statements by political and military leaders in Israel, including references to “human animals” and to “erasing Gaza” the Court will have its work cut out to make a determination and to recommend provisional measures.

The ICJ will be subject to its own internal political dynamics among its fifteen judges. The President of the ICJ, Judge Joan Donoghue, is a career technocrat that has served as a Legal Adviser to the US State and Treasury Departments, which some observers suggest that she may be partial to Washington’s preference to dismiss the case. This would also be in line with what US National Security Council spokeperson, Admiral John Kirby said when referring to the South African application, calling it “meritless, counterproductive and without any basis in fact whatsoever.” The President of the ICJ can cast the deciding vote if there the Court is equally divided on its ruling. The determination of the case against Israel will now be in the hands of the judges of the ICJ which will serve to inform how the Israeli incursion will be viewed for posterity.

Implications for the rest of Africa

The use of the ICJ is familiar to the African continent and not an anomaly or an outlier institution. In particular, the African continent has significant experience with utilizing the ICJ to adjudicate disputes. The former apartheid regime of South Africa was a regular respondent at the ICJ, notably in a case that was brought by Ethiopia and Liberia to account to the United Nations for its occupation of the territory of South West Africa, which subsequently became independent and renamed Namibia. Therefore, South African legal practitioners, through their legal training, have more of an understanding of how to engage the ICJ. A number of African countries have also utilized the ICJ to address contentious disputes, including Nigeria and Cameroon which, in 2002, subjected themselves to the jurisdiction of the Court to address a boundary dispute over the ownership of the so-called Bakassi Peninsula. Consequently, South Africa’s application to the ICJ will reaffirm and reinforce the utilization of the Court to address disputes that are politically contentious. In effect, Africa is demonstrating and reiterating to the world that there are non-violent pathways to addressing disputes, if there is a determination to make the institutions work for the benefit of humanity.

The Impact of the South African ICJ Case

South Africa has taken the initiative to, in effect, stress test the capability and limits of the multilateral system to judicially uphold the provisions of the UN Charter, particularly its claim “to reaffirm faith in the fundamental human rights, in the dignity and worth of the human person” and “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained” (UN Charter, Preamble). The manner in which the ICJ conducts this case will be closely scrutinized to demonstrate whether there is indeed any component of the multilateral system that is still functioning, given the spectacular collapse of the remaining remnants of any pretense to a collective security system embodied in the dysfunctional UN Security Council. Internationally, the 57-member Organisation of Islamic Conference (OIC) has voiced its support for South Africa’s ICJ case. So far, Boliva, Jordan, Malaysia and Turkey as well as Venezuela and the Maledives have independently issued formal statements in support of the case. Globally, more than 900 civil society organisations have signed a declaration in support of the ICJ application under the slogan “We Support South Africa’s Genocide Convention Case Against Israel.” In effect, South Africa’s judicial intervention is serving as a lodestar for global geopolitical mobilization for the pursuit of a ceasefire and pathway to sustainable peace.

Conclusion

It is a self-evident truism that International judicial institutions do not operate in a geopolitical vacuum. The ICJ judges will be aware of how polarizing the Israeli invasion of Gaza has become across cities, communities, workplaces, universities, schools, churches, mosques, synagogues, and temples around the world on all continents of the world. For the approximately 14 million Jewish people living around the world, the 7th October 2023 attacks brought back memories of the Nazi attacks on "Kristallnacht", and injected an element of fear for what the future would hold. There were appeals to the Israeli authorities to exercise moderation in their response, but the incumbent leadership pursued a path of disproportionate war which has brought us to the point where South African issued the application to the ICJ. The urgency of establishing a permanent ceasefire, and identifying a pathway for how Israelis and Palestinians can co-exist on equal terms on this highly contested piece of land, is a task that will now take multiple generations to achieve. Paradoxically, South Africa still remains an enduring example of how former enemies can continue to co-exist in the same space, despite the unresolved psychosocial and socio-economic legacies of the brutal apartheid system. One can surmise that perhaps through its submission to the ICJ, South Africa is also striving to communicate to Israel, which is emboldened by the coverage that it receives from Washington, London, and Brussels in terms of finance and ammunitions, of the ultimate futility of pursuing the path of perpetual war and violence. South Africa could be attempting to signal the necessity of walking along the road, less traveled, of finding ways to live with the “other” whom you may despise, a journey that will now be measured, not in years, but in decades and perhaps generations.

References

African National Congress, 6th Policy Conference Report, 28-31 July 2022, Nasrec, Gauteng, South Africa, accessed 10th January 2024.

Dugard, J. 2023, ‘The Choice Before Us: International Law or a “rules-based international order”?, Lieiden Journal of International Law, Issue 36, pp. 223-232.

International Court of Justice, Proceedings Instituted by South Africa Against the State of Israel, 29th December 2023.

United Nations, The Charter of the United Nations and Statute of the International Court of Justice, 26th June 1945, San Francisco, United States of America.