South Africa -v- Israel

On the sixth day of #EST24, having travelled from Brussels to The Hague (with a cheeky diversion to Amsterdam for the most divine plateau de fruits de mer), we were fortunate to meet His Excellency Vusi Madonsela, Ambassador Extraordinary Plenipotentiary of the Republic of South Africa to the Kingdom of The Netherlands. Ambassador Madonsela generously hosted us in his official residence, where he introduced his legal colleagues working on South Africa’s genocide case against Israel. While the relative merits of this claim are complex, divisive, and emotive; from an academic perspective, it was fascinating to learn about the basis for the claim in international law, and the procedural hoops that South Africa has had to jump through.

By way of background, on 29 December 2023, South Africa filed its application in the International Court of Justice (‘ICJ’) instituting proceedings against Israel, concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the ‘Genocide Convention’) in relation to Palestinians in the Gaza Strip. The application also contained a request for the indication of provisional measures pursuant to Article 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court. South Africa requested the ICJ to indicate provisional measures in order to protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention 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. Pursuant to Article 74 of the Rules of Court, [a] request for the indication of provisional measures shall have priority over all other cases. South Africa alleges that Israel has committed and was committing genocide against Palestinians in the Gaza Strip, contravening the Genocide Convention, including what South Africa described as Israel’s 75-year apartheid, 56-year occupation, and 16-year blockade of the Strip. The application itself is an extraordinary tour de force and is well worth a look. See here: https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf

At the time, Israel’s Foreign Ministry characterized South Africa’s charges as baseless; describing the country as functioning as the legal arm of Hamas. Israel said that it was conducting a war of self-defence in accordance with international law following the Hamas-led attack on its territory on 7 October 2023. Two days of public hearings were held on 11-12 January 2024, whereupon the ICJ issued an order in relation to the provisional measures request on 26 January 2024, in which it ordered Israel to take all measures to prevent any acts that could be considered genocidal according to the 1948 Genocide Convention. The court said that at least some of the acts alleged by South Africa appear to fall under the provisions of the Genocide Convention. But the ICJ did not order Israel to suspend its military campaign in the Gaza Strip, which South Africa had requested. Both South African and Israeli officials welcomed the decision, with each considering it a victory. The case continues.

Interestingly, South Africa was not the only country that considered bringing a case against Israel and, apparently, others may still seek to become involved as parties to the claim. In response to the Why South Africa question?, the ongoing Rohingya genocide claim brought by Gambia, is seen as a contemporary case study in good legal practice. South Africa is said to share longstanding and deep relations with Palestine, which makes it the ideal country to bring such an action because it is not an actor in the conflict as many Arab countries are. However, this does beg an interesting question about #LAWFARE which is becoming an increasingly potent instrument in foreign disputes.

#defence #diplomacy #diplomaticrelations #foreignpolicy #foreignrelations #internationalrelations #internationalsecurity #nationalsecurity #statecraft #icj #military

Foreign, Commonwealth and Development Office 英国牛津大学 Department of International Relations and Cooperation United Nations