“The landmark application by the South African government to the International Court of Justice (ICJ) to institute proceedings against Israel for its genocidal acts against the people of Palestine, caught the majority of the world off-guard. It represents a significant judicial test to the functionality of the international multilateral system.”
The world watches in awe, the emboldened act of audacity as South Africa’s genocidal case against Israel is being presented at the International Court of Justice (ICJ), also known as the World Court. It has been argued in South Africa’s case against Israel at the ICJ the Israeli actions inculcate genocidal acts against Palestine, intended to bring destruction to Palestinian life. The ICJ has been given the responsibility to provide measures that safeguard the rights of the Palestinians in Gaza, as outlined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
The 1948 Convention on the Prevention and Punishment of the Crime of Genocide is a significant human rights treaty that was adopted by the UN General Assembly. This treaty was established in response to the Holocaust, which occurred during the Second World War and involved the systematic extermination of over six million Jewish individuals by Nazi Germany. The instrument consists of 19 articles and it provides the first internationally recognized legal definition of the term “genocide”.
According to Article II of the Convention, genocide refers to any of the following acts carried out with the intent to destroy, either wholly or partially, a national, ethnic, racial, or religious group: (a) Killing members of the group (b) Inflicting serious physical or mental harm upon members of the group (c) Deliberately imposing living conditions on the group with the aim of physically destroying it, either wholly or partially (d) Implementing measures to prevent births within the group (e) Forcibly transferring children from the group to another group.
The Court has been tasked with providing judgements over cases brought to it by the parties since its inception, but the South African application has placed it in the forefront of geopolitical disputes. The manner in which the ICJ carries out its duties and passes its landmark judgment for this case will be carefully observed and analyzed by a wide range of political and societal perspectives. Essentially, the International Court of Justice is now the center of attention.
The International Court of Justice was established by the Charter of the United Nations as “the principal judicial organ of the United Nations” which is composed of a body of 15 independent judges elected by the General Assembly and the Security Council. It conducts its proceedings from the Peace Palace in The Hague, Netherlands.
South Africa has asserted its standing on the South Africa vs Israel case based on erga omnes partes principle, which means obligations are owed by any State party to all other State parties. South Africa emphasizes that this dispute relates to its own obligations as a State party to the Genocide Convention, particularly in terms of preventing genocide which is caused by Israel’s actions and inactions.
Thus, South Africa argues that it clearly has standing in this matter. The Court has already recognized erga omnes partes standing for disputes arising from the Genocide Convention, and considering that South Africa’s claims involve fundamental provisions of the Convention, the Court has determined that South Africa does indeed have the right to bring these proceedings.
The unflinching tribulations and relentless torment being faced by the Palestinians rings a heartfelt bell in South African hearts as they have historically struggled to liberate themselves from the brutal yoke of apartheid’s institutionalized racism. It compelled South Africa to build solidarity networks with a broad spectrum of actors, including Palestine.Since 1994, the African National Congress (ANC), the ruling party in South Africa, has consistently expressed its support for the Palestinians’ desire for self-determination and the creation of an independent State of Palestine.
The late Nelson Mandela, a revered figure as a freedom fighter and South Africa’s first post-apartheid President, staunchly advocated for the cause of Palestinian freedom. He underscored the notion that “Our own freedom is not fully realized unless accompanied by the freedom of the Palestinian people.”
Israel initiated a significant and extensive air and ground attack on Gaza shortly after an impactful Hamas assault. As a result of this offensive, almost 85% of Gaza’s 2.3 million population has been forced to abandon their homes within a span of three months. Due to a limited flow of essential resources such as food, water, medicine, and supplies stemming from an Israeli siege, a distressing quarter of the region’s inhabitants now face the threat of starvation. Furthermore, a substantial portion of northern Gaza, including the city of Gaza itself, has been left devastated, resembling a barren and desolate landscape.
South Africa’s application against Israel at the ICJ shows a crucial step towards upholding international justice and bringing accountability to actions undertaken by states in the name of self defense and protection of sovereignty. Not only that, it also showcases an audacious attempt to challenge the impunity of the western led international order and recognizes the imperative to curb the iniquitous carte blanche given to Israel by the US and its allies.
The ICJ application made by South Africa is not simply an accusation but rather a comprehensive, publicly accessible 84-page document found on the ICJ’s website. It is based on thorough factual and legal analysis. Contrary to Israel’s claim, South Africa’s action is not a form of cooperation with any terrorist organization or an act of defamation or anti-Semitism. Instead, it represents a fulfillment of its obligations under the Genocide Convention.
Consequently, South Africa’s application to the ICJ will serve as a reaffirmation and strengthening of the Court’s role in addressing politically contentious disputes. By taking this step, South Africa is demonstrating and emphasizing to the global community that non-violent avenues exist for resolving conflicts, as long as there is a commitment to making institutional mechanisms work for the betterment of humanity.
As a party to the Genocide Convention, the United States has a responsibility to take action to prevent genocide. Having the jurisdiction to hear the case, the ICJ could compel lawyers within the U.S. government to assess the legality of various forms of assistance provided to Israel, such as ongoing financial and military support. Notably, there is a U.S. law called the Leahy Law that prohibits military aid to foreign security forces when there is credible information of gross human rights violations. The financial and military assistance provided by the U.S. to Israel raises concerns regarding compliance with other domestic legal prohibitions and further lends weight to the complicity of the US with Israel committing genocidal acts against Palestine.
Accusing Israel of genocide is a significant allegation that requires careful evaluation, and the ICJ is well-equipped to do so without political bias. It is important to recognize that seeking state accountability under international law, as South Africa aims to do, is not an act of defamation but rather a pursuit of justice. Recent statements made by Israeli politicians, including some that may have genocidal implications, should also be subject to judicial scrutiny. This process is not about singling out a particular nation or population, but rather about ensuring that actions and words are examined in accordance with the principles of international law.
Being placed in the geopolitical theater of vested interests and ignominious human rights violations, the Court faces a judicial stress test. It can either pass a landmark judgment upholding the ideals of international justice, ordering a permanent ceasefire to protect Palestinian lives pave the way for freedom and reparation for victims, or it can give in to the political pressures and evince the global community of the reality of anarchy in the global order as the legacy of the powerless colonized abused by the powerful colonizers lives on indelibly. The result of the trial at The Hague will determine the integrity of the institution as a flagbearer of international peace and justice.