In a few weeks, the International Court of Justice (ICJ) may give its initial verdict on the South African application that instituted proceedings against Israel for alleged genocide in Palestine.
Since Hamas fighters invaded Israel on Oct. 7, killing and abducting hundreds of people, Israel has responded with brutal assault. More than 85 per cent of Gaza’s 2.3 million population has since been displaced, and over 23,000 Palestinians have been killed, mostly women and children. The aggression has continued despite wide condemnation and calls for a ceasefire by the United Nations, which has warned that the conflict in Gaza could lead to a severe famine.
Last December, South Africa instituted a case against Israel before the ICJ, the UN’s principal judicial organ, alleging violations of its obligations under the 1948 Genocide Convention. The deliberations of both South Africa and Israel were concluded on Jan. 11, 2023. While some proceedings at the ICJ are expected to end in a few weeks, some court decisions could take several years.
South Africa has argued that over 660,000 were wounded and maimed in Palestine, making it conclude that Israel has the intent of committing genocide in Gaza.
“The scale of destruction in Gaza, the targeting of family homes and civilians, the war being a war on children, all make clear that genocidal intent is both understood and has been put into practice. The articulated intent is the destruction of Palestinian life,” said one of its lawyers, Tembeka Ngcukaitobi.
The arguments in the 84-page case on South Africa’s behalf were presented by a team of six lawyers: Adila Hassim, Tembeka Ngcukaitobi, Max Du Pleiss, Vaughan Lowe, Blinne Ní Ghrálaigh, and John Dugard.
Each member of the ICJ’s fifteen-member panel of judges is elected by the UN General Assembly and the Security Council for a nine-year term and is a citizen of a distinct nation. Israel and South Africa have each nominated an ad-hoc judge to serve on the panel for the duration of this case.
While ICJ can settle disputes between different countries, its authority depends on the willingness of the countries to comply with its decisions, as it lacks an enforcement mechanism. However, its verdicts can have implications and influence over geopolitical relationships.
The South African requests are:
- The State of Israel should immediately suspend its operation in and against Gaza.
- The State of Israel should ensure that any military or irregular armed units that may be directed, supported, or influenced by it, as well as organisations and persons that may be subjected to its control, direction, or influence, take no further steps in furtherance of the military operations referred to in point (1).
- The Republic of South Africa and the State of Israel shall each, in accordance with their obligations under the Convention on the Prevention of the Crime of Genocide, in relation to the Palestinian people, take all the reasonable measures within their power to prevent genocide.
- The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people as a group protected by the Convention on the Prevention and Punishment of the Crime of Genocide, desist from the commission of any and all acts within the scope of Article II of the Convention, in particular:
- killing members of the group;
- causing serious bodily or mental harm to the members of the group;
- deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
- imposing measures intended to prevent births within the group;
- The State of Israel shall, pursuant to point (4) (c) above, in relation to Palestinians, desist from and take all measures within its power, including the rescinding of relevant orders, restrictions, and/or prohibitions, to prevent:
- the expulsion and forced displacement from their homes;
- the deprivation of:
- access to adequate food and water;
- access to humanitarian assistance, including access to adequate fuel, shelter, clothes, hygiene, and sanitation;
- medical supplies and assistance; and
- the destruction of Palestinian life in Gaza;
- The State of Israel shall, in relation to Palestinians, ensure that its military, as well as any irregular armed units or individuals that may be directed, supported, or otherwise influenced by it and any organisations and persons that may be subject to its control, direction, or influence, do not commit any acts described in (4) and (5) above or engage in direct and public incitement to commit genocide, conspiracy to commit genocide, attempt to commit genocide, or complicity in genocide, and insofar as they do engage therein, that steps are taken towards their punishment pursuant to Articles I, II, III, and IV of the Convention on the Prevention and Punishment of the Crime of Genocide;
- The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide; to that end, the State of Israel shall not act to deny or otherwise restrict access by fact-finding missions, international mandates, and other bodies to Gaza to assist in ensuring the preservation and retention of said evidence;
- The State of Israel shall submit a report to the Court on all measures taken to give effect to this Order within one week, as from the date of this Order, and thereafter at such regular intervals as the Court shall order, until a final decision on the case is rendered by the Court, and that such reports shall be published by the Court;
- The State of Israel shall refrain from any action and shall ensure that no action is taken, which might aggravate or extend the dispute before the Court or make it more difficult to resolve.
For Israel, the requests were two. It called the ICJ to:
- Reject the request for the indication of provisional measures submitted by South Africa; and
- Remove the case from the general list.
The South African move reflects a historical consciousness shaped by the anti-apartheid struggle. Many African countries have supported the case or called for a ceasefire, with Namibia being the most outspoken after South Africa.
When, in December, the UN General Assembly passed a resolution demanding a humanitarian ceasefire in Gaza, most African countries joined their voices with the rest of the world in favour of the motion. The only African country that voted against was Liberia, while Cabo Verde, Cameroon, and Equatorial Guinea abstained.
Most countries on the continent have likewise recognised Palestine as a sovereign state.
The historical backdrop of apartheid and colonialism in Africa and the solidarity movements that emerged in the period have fostered a collective consciousness among some African nations, making them compare their history with the current Palestinian situation.
For many years, South Africa has been linking its anti-apartheid struggle with the Palestinian resistance. The country was ruled under racial segregation and institutionalised discrimination against its majority black people from 1948 until the early 1990s.
The echoes of discrimination, segregation, and the denial of basic human rights resonate strongly with those of Palestinians, fostering a deep-rooted connection between the two narratives.
Since the early 1950s, both the South African ANC party and Palestinian Liberation Organization (PLO) have supported each other, while the apartheid National Party in South Africa had close ties with Israel. The revolutionary President Nelson Mandela was seen several times with leaders of the PLO, such as Yasser Arafat.
In 1994, after he was elected president of South Africa, Mandela stated, “We know too well that our freedom is incomplete without the freedom of the Palestinians.” Arafat celebrated his release from prison, and a widely shared picture of them has been used to symbolise a shared plight and struggle.
After Mandela’s death, his family continued his legacy. Recently, in a rally against the Israeli operation in Gaza, his grandson, Mandla Mandela, emphasised their unwavering support for the Palestinian cause.
“We have stood with the Palestinians, and we will continue to stand with our Palestinian brothers and sisters,” Mandla said in the pro-Palestinian rally. In a conference on apartheid held in 2022, he similarly remarked, “We must not rest until we achieve a free Palestine.”
Apart from the ANC leaders, many South Africans have expressed their support for Palestine in marches and demonstrations. Different rallies were held, including the one organised by prominent South African politician Julias Malema.
On Nov. 21, 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 condemned Israel’s offensive in Gaza, saying that the operation “constitute[s] grave breaches of the Geneva Conventions and war crimes and violations under International Humanitarian Law.”
Namibia is another African country whose condemnation of the Israeli occupation of Gaza has been emphatic.
Its president, Hage Geingob, recently criticised Germany for supporting Israel in the ICJ genocide case, saying the European country should have learned from its experience. In a statement posted on X, Geingob said Germany could not morally express commitment to the UN convention against genocide, including atonement for the genocide in Namibia, while supporting the equivalent of a holocaust and genocide in Gaza.
“On Namibian soil, Germany committed the first genocide of the 20th century in 1904–1908, in which tens of thousands of innocent Namibians died in the most inhumane and brutal conditions,” the statement said.
Namibia was under German colonial occupation in the early 20th century. After the First World War, it became a League of Nations-administered territory. Following the Second World War, South Africa administered Namibia until independence in 1990.
Namibia experienced apartheid while it was under the administration of South Africa.
Germany was said to be responsible for the massacres of more than 70,000 indigenous Herero and Nama people in Namibia, which historians widely consider the first genocide of the 20th century.
In 1904, Lothar von Trotha, a German military commander, issued an order stating that “every Herero, with or without rifles and cattle, shall be executed.” This initiated the genocide. Trotha additionally threatened that he would no longer accept women or children but rather “execute them or return them to their native lands”. The same threat was later issued to the Nama people.
“The German Government is yet to fully atone for the genocide it committed on Namibian soil,” the Namibian presidency stated.
President Geingob then expressed concern with the German decision to reject the indictment brought forward by South Africa before the ICJ that Israel is committing genocide against Palestinians in Gaza.
Namibia is known for its condemnation of Israel’s occupation of Palestine. In 2009, during the Israeli war in Gaza, the country stated that “this naked aggression and disproportionate use of force by Israel is unfortunate and only leads to further escalation of violence.” In 2021, it similarly condemned Israeli attacks on Palestinian worshippers at the Al-Aqsa Mosque in East Jerusalem.
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