Will South Africa’s application at ICJ be able to slow down Israel’s genocidal juggernaut?

While the so-called World Order silently watches the genocide that Israel has unleashed in Gaza, South Africa, flush with memories of Apartheid, has heeded the call of humanity and moved the International Court of Justice.

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THE genocide in Palestine, which has been going on for three months now, is perhaps the first ever that the world has witnessed in real-time.

The Bosnian genocide was captured in great visual detail, but mostly after the fact. The Rwandan genocide was reported widely, but the world was spared its contemporaneous visual details.

The genocides in Iraq and Afghanistan were vastly underreported. The fact that they were spread over a long period and buried under the misnomer of 'war' played its part in the obfuscation.

But the haunting, apocalyptic visuals that have emerged from Gaza since the second week of October, when Israel invaded it after an attack by Hamas on territories in the vicinity of the permanently besieged Gaza Strip, have raised some of the most direct and immediate moral and ethical questions ever for the international community regarding genocide.

On December 29, 2023, South Africa responded to these questions by moving the International Court of Justice (ICJ) against the Gaza genocide.

The application alleges that Israel violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).

Since October 9 last year, Israel has dropped thousands of tonnes of explosives, displacing almost two million (of the 2.3 million Gazans), killing over 22,185, including 7,729 children, and injuring at least 57,000 Palestinians in Gaza.

The ICJ is set to hear oral arguments by South Africa and Israel on South Africa's request for an expedited hearing to allow certain provisional measures on January 11 and 12.

The provisional measures seek to protect the rights of the Palestinian people from imminent and irreparable loss and "to ensure Israel's compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide".

Why has South Africa moved the ICJ?

South Africa's support for Palestine during the ongoing conflict can be traced back to the anti-Apartheid struggle. 

The ruling party of South Africa, the African National Congress (ANC), has deep ties with the Palestine Liberation Organisation (PLO). The party's former leader and first post-Apartheid President Nelson Mandela was a vocal supporter of Palestine even before his arrest in 1962.

After his release, Mandela explained that the ANC, which fought the Apartheid movement, identified with the PLO's right to self-determination, which bore many similarities to the South African struggle for equal rights and end of discrimination against African Blacks in their own homeland.

After Mandela, the ANC has continued its support of the Palestinian cause.

To cite an example, calling Israel to stop attacking Gaza, South Africa's foreign minister Naledi Pandor stated in November last year, "We, who enjoy the freedom from Apartheid, can never, ever be the ones who agree to an Apartheid form of oppression."

Pandor added, "These actions remind us of our experiences as Black South Africans living under Apartheid."

In December last year, South Africa's President, Cyril Ramaphosa, condemned Israel's attacks, stating "We do this [condemn Israel] not out of political adventurism, for us this is a matter of principle. A principle that is born out of our own experience as a people of South Africa, who struggled against an oppressive Apartheid system."

South Africa's application

According to the petition filed by South Africa, Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinians in Gaza.

The application lists out the acts that include killing Palestinians, causing them serious mental and bodily harm and deliberately inflicting on them conditions of life calculated to bring about their physical destruction as a group.

The petition avers that doctors, journalists, teachers, academics and other professionals are also being killed at wholly unprecedented rates in Gaza.

Such killings of Palestinians have taken place in shelters, hospitals, schools, churches, mosques, and in their search for food and water— killing one in every 100 people in Gaza.

With over 7,729 children dead, Gaza has been described as "a graveyard for children" and Israel's attacks on it as a "war on children".

Over 55,243 Palestinians have been injured, a majority of them women and children, with around 1,000 children having lost one or both legs.

Besides the killings and serious bodily injuries, the application points out that Israel has detained civilians, including children, and subjected them to torture and ill-treatment in degrading conditions.

Moreover, the forced evacuation of Palestinians in Gaza from their homes is seen as "permanent" as 355,000 or 60 percent of the total Palestinian homes have been destroyed or damaged.

The displaced people are seeking shelter in United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) facilities that primarily comprise schools and tents— which have also been attacked by Israel, killing hundreds of Palestinians. 

According to the World Health Organisation, 93 percent of Palestinians in Gaza are "facing crisis level of hunger" due to "insufficient food and high levels of malnutrition".

Israel has also targeted infrastructure that is fundamental to Palestinian life such as courts and legislative buildings, libraries, educational facilities, centres of learning and culture, and places of worship. 

The application points out the repeated statements by representatives of Israel, including at the highest levels— the Israeli President, Prime Minister and Minister of Defence— expressing genocidal intent (dolus specialis).

Such statements include repeated characterisation of the invasion of Gaza as a fight between "light and darkness", between "civilisation and barbarism", and between "good and extreme evil".

They also include references to Palestinians as "human animals", "bloodthirsty monsters" and many similar dehumanising terms.

There have been statements calling for cutting off all water, electricity and food to Gaza.

There have also been statements dismissing arguments that make a distinction between civilians and armed combatants in Gaza.

Still other statements, as per the South Africa application, promise to erase Gaza from the face of the Earth, give it a blow that has not been seen in 50 years and make it permanently uninhabitable.

According to the application, the United Nations Security Council resolution, dated December 22 last year, which the United States and Russia abstained from, fails to address the situation on the ground, including by not calling for a ceasefire.

The application quotes a former senior official of the UNRWA, a relief and human development agency, terming the resolution "a greenlight for continued genocide".

What does the application seek?

The South Africa application seeks an expedited hearing for provisional measures for the protection of the Palestinian people in Gaza.

The application lists nine such provisional measures, including mandating Israel to immediately suspend its military operations in Gaza, desisting from killing Palestinians, causing serious bodily or mental harm, deliberately inflicting conditions of life to bring about its physical destruction, desisting from causing forced displacement and deprivation of food and water, and accessing humanitarian assistance and medical supply.

In its plea, South Africa prays that Israel must take measures consistent with the obligation to prevent genocide under Article I of the Genocide Convention.

In particular, it states that Israel must perform the obligations of reparation in the interest of Palestinian victims, including allowing the safe and dignified return of forcibly displaced and abducted Palestinians to their homes; respect for their full human rights and protection against further discrimination, persecution, and other related acts; and provision for the reconstruction of what it has destroyed in Gaza.

What will be the effect of the South Africa application?

Ravi Nair, executive director of the South Asia Human Rights Documentation Centre, a non-governmental organisation investigating, documenting and disseminating information about human rights, shared with The Leaflet that the provisional measures would mandate an immediate halt to bombing, forcible displacement and attempted starvation in Gaza.

Nair opined that in case the ICJ passes provisional measures and Israel ignores the ruling, the only option left would be to approach the UN Security Council for implementation of the ICJ's decision.

However, given that the US previously has vetoed attempts to implement a ceasefire, Nair raised the concern that the Biden administration may veto the implementation of provisional measures at the Security Council as well.

Even if the US does not veto the implementation of the provisional measures, the chances of Israel's compliance remain slim.

Referring to a previous example of Israel's attitude towards international obligations, Nair stated that in 2004, the ICJ passed a non-binding advisory opinion stating that Israel's construction of a separation wall in the Occupied Palestinian Territory of the West Bank violates its international obligations under humanitarian and human rights law.

The ICJ had stated that Israel must cease the construction and dismantle those structures situated within the occupied territory.

Nair pointed out that Israel continued to build and expand the wall, which is estimated to have isolated more than 78 Palestinian villages and communities, claiming national security concerns.

However, cautioning against treating it as a lost cause, Nair placed hope in the Genocide Convention and stated, "There is a moral compulsion for all countries, who have signed the Genocide Convention, to implement measures that the ICJ indicates in its ruling."

In addition, Nair pointed out that the Responsibility to Protect, a declaratory document endorsed by heads of all States, will supply considerable moral backing to South Africa's case at the ICJ.

In 2005, the principle of Responsibility to Protect was passed as a political commitment to protect people from genocide, war crimes, ethnic cleansing and crimes against humanity.

The principle includes not only the responsibility of each State to protect its people but also the responsibility of the international community to assist States in protecting their populations and to protect people when a State is manifestly failing to protect them.

According to Nair, the petition would be strengthened if other countries, for instance, countries that form part of groups such as the BRICS (Brazil, Russia, India, China and South Africa), the Organisation of Islamic Cooperation, and the Association of Southeast Asian Nations (ASEAN), join South Africa's plea.

Selective application of international law

Raushan Tara Jaswal, who is an assistant professor at OP Jindal University, told The Leaflet that international law has been enfeebled because mechanisms such as the Security Council are not "proving effective".

Jaswal added, "Implementation can be strengthened by two things— one is international pressure where countries come together and ask Israel to stop bombing.

This can be compared to the case of Russia's recent invasion of Ukraine where many countries condemned Russia's acts, including by imposing economic sanctions against the country."

"The second way is when a member State abides by international law by itself," she added.

Jaswal gave the "successful" example of the Security Council resolutions against the 1990 invasion of Kuwait by Iraq, which condemned Iraq's action, called for a permanent ceasefire agreement and authorised States to use force to stop the invasion.

"Why not protect Palestine and Rohingyas with the same rigour?" Jaswal asked, pointing out that the approach of member States of the Security Council has not been uniform in recent years.

Stressing that international law has not been particularly useful, Jaswal opined that the available solutions— ruling of the ICJ, resolutions of the Security Council, diplomatic and amicable solutions, and economic and other sanctions till a ceasefire is agreed upon— have worked out in the recent past.

On the example of Russia's invasion of Ukraine, Jaswal said that although all the above-mentioned solutions worked in Ukraine's favour, there is still no de-escalation of Russia's aggression.

The arrest of the President of Russia, Vladimir Putin, has also not been possible, although his movement outside Russia has been visibly hampered by the ICJ ruling.

Jaswal said, "Following the Cold War, it was believed that international law could work to stabilise the world order. However, there is a growing perception all over the world that international law is a violation of sovereignty, which hamstrings its potency."