While fundamentally a legal matter, South Africa’s case against Israel at the International Court of Justice is also a deeply political one.
There is no question about the legal merits of the case; certainly not from the perspective of hundreds of legal scholars and international law practitioners who have spoken and signed petitions about it.
One such celebrated lawyer, John Dugard, is a key member of the South African legal team. Others, such as Francis Boyle, who argued the Bosnia genocide case at the ICJ, have given detailed opinions about why the South African application has merit and should, therefore, succeed.
The reasons for any state concerned with questions of human rights to take this matter to the ICJ are obvious.
As South Africa submitted, “There is a grave threat to the existence [of the 2.3 million Palestinians in Gaza, including over a million children]… They are in urgent and severe need of the court’s protection. With each passing day that Israel's military attacks continue, further significant loss of life and property is being caused, and grave human rights violations are being committed.”
Relevant to the Genocide Convention, on the basis of which the case has been launched, the “grave threat”, according to South Africa, is not only to individual persons, but to the Palestinian population of Gaza as a whole.
While many Palestinians have referred to the past 75 years as an “ongoing nakba (catastrophe)”, following the 1948 Nakba when 700,000 Palestinians were killed and forced into refugeehood by Israel, the past three months represents a new Nakba or a new phase of that ongoing nakba.
Israel has killed more than 23,000 people, including about 8,000 children, and 7,000 more are missing and trapped under the rubble, likely dead. Around two million people are displaced, and Gaza being made intentionally unliveable.
In just three months, we have witnessed an ongoing human catastrophe that is arguably worse than that of 1948.
Further, South Africa argues, the Genocide Convention places on it a duty to “prevent genocide”, and its application to the court for “provisional measures” is precisely that.
The 84-page application carefully lays out instances of Israel’s genocidal practices and its occupation forces in Gaza since 7 October. It lists various articles of the Convention that Israel has violated, and argues that of the five types of practices that are defined by the Convention as genocidal, Israel is guilty of four. Any one of them is sufficient for an action to be regarded as genocidal.
In addition, the application painstakingly lists public statements from Israeli government officials, parliamentarians, and other influential individuals to show that there is clear genocidal intent behind the actions in Gaza.
Usually, acts of genocide are notoriously difficult to prosecute because intent is difficult to prove. In this instance, however, the intent is clear, from Israeli president Isaac Herzog’s claim that the “entire nation [of Gaza]” is guilty, to prime minister Benjamin Netanyahu’s comparing Palestinians to the biblical story of the Amalek against whom genocide was committed, to defence minister Yoav Gallant’s labelling Palestinians as “human animals”.
Meticulously proving that Israel is guilty of genocidal acts and possessing genocidal intent, makes the application almost certain to succeed.
That is from the legal perspective. But the legal in this case is tightly interwoven with the political.
For one thing, the judges of the ICJ, like those of the ICC, often decide on matters based on the position of the countries that deployed them. Thus, the merits of the case matter only up to a point, beyond which the decision could easily be decided by political considerations.
More importantly, it is clear to everyone that this is an instance of a Global South state using international law and the apex global court meant to uphold it against a state that sees itself as part of the Global North (and is accepted by northern states as such).
International law, the global “rules-based system”, and “rules of war” were all designed by northerners for northerners, to be used between themselves. These conventions were set up as rules for northern states in dispute, and as mechanisms to resolve their conflicts. Their benefits were never meant to be claimed by southern states, which were European colonies at the time.
This is why Israel “rejected with disgust” South Africa’s application, its foreign minister accusing South Africa of “blood libel”, and its president saying there was “nothing more atrocious and preposterous” than the application. Israel did not even feel the need to respond legalistically.
This is also why Israelis glibly (and falsely) claim that the actions of the Gaza resistance on 7 October were genocidal but their own actions could never be. After all, genocide applies when human beings, not animals, are victims – even if they are “human animals”.
It is why Israel believes that rules of war do not apply to its onslaughts on Gaza, and that, in its pursuit of “human animals”, it may legitimately target hospitals, churches, mosques, schools, UN staff, medical personnel, and journalists. Attacks against these were not “collateral damage” during “indiscriminate attacks”; they were deliberately targeted.
Because Israel and its allies have shown that they believe that the rules of war do not apply when the victims are colonised, other-than-white people.
And that is why Israeli politicians so glibly expressed their genocidal intent: they knew there was nothing wrong because the victims were Palestinians, not Europeans.
That is also why the US secretary of state could reject the genocide charge as “meritless”, despite acknowledging that the US had conducted no investigation that could justify that conclusion.
And why, even after the South African application listed numerous examples of Israeli calls for genocide, those calls did not stop. After all, it cannot be genocide unless it is against human beings.
It is significant that this matter has been taken to the ICJ by South Africa. Even though the country’s people were never victims of genocide, they suffered centuries of dehumanising and brutal colonialism and apartheid, and can recognise both in Palestine – though the latter case is much worse in intensity and effect.
The political symbolism and power of South Africa’s role has not been lost on, especially, the peoples of the Global South.
Of course, the fact that South Africa’s solidarity with the Palestinian people has been a feature of its politics since its first democratic election in 1994 was important in the country’s decision regarding the ICJ. As was the fact that Apartheid South Africa had close relations – including military, intelligence, and nuclear weapons development – with Israel.
Because of political influence on ICJ judges, it is difficult to predict what judgement they might deliver in a few weeks’ time, even if the merits of the case are flawless.
Even if the court does uphold South Africa’s call for provisional measures that include Israel ceasing its brutal genocidal bombardment of Gaza, there is no guarantee that the genocidal state will abide by the decision.
But whatever the outcome, South Africa has put on trial not just Israel for genocide, but the Global North for its hypocrisy and “international law” for its biases against the Global South.
If for nothing else, this court action will be remembered for this.
Naeem Jeenah is a senior researcher at the Mapungubwe Institute for Strategic Reflection, and the former executive director of the Afro-Middle East Centre based in South Africa.
Have questions or comments? Email us at: editorial-english@newarab.com
Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.