Israel/Gaza: South Africa regains the moral high ground

THE massacre of over 1% of Gaza's population since October 7, the destruction of most infrastructure through nearly three months of heavy bombardment and the catastrophic medical and food crises in the besieged strip of land demand a clear international declaration that it amounts to genocide and should not be tolerated.

It is almost poetic that this initiative comes from South Africa — the land of apartheid where moral outrage is now aimed at Israel. The country that miraculously resolved a primal conflict three decades ago through negotiations and compromise and established a constitutional democracy and an open society.

International jurists generally agree that International Court of Justice (ICJ) judges are likely to grant South Africa's application.

South Africa has also requested immediate provisional measures rather than just a statement from the court. If the court proposes a ceasefire, Israel will have to seriously reconsider whether it can continue its assault. The US, Britain, and Europe, which have largely supported Israel unquestioningly, will also have to take serious note and change strategies.

According to the Israeli newspaper Haaretz, a senior legal adviser in a submission to the top command of the Israeli military warned of the “real danger that the court will issue an injunction calling on Israel to halt its fire, noting that Israel is bound by the courts".

Several prominent Jewish and Israeli peace activists expressed hope this week that an ICJ finding could sway public opinion in Israel. Most Israelis support the aggressive stance on Gaza by Benjamin Netanyahu's war cabinet, in part because most media in the country do not paint the full picture of what is happening in Gaza.

The ICJ is the primary legal body created by the UN Charter of 1945 to settle disputes between member states according to international law. (The International Criminal Court [ICC], on the other hand, tries individuals on serious international charges such as war crimes.)

Democratic South Africa's two moral giants and Nobel Peace Prize recipients, Nelson Mandela and Desmond Tutu, spoke out strongly against Israel's injustices toward the Palestinians during their lifetimes.

South Africa's 84-page submission to the ICJ is a formidable document that will be difficult to refute. It meticulously lays out why Israel's war on Gaza amounts to genocide, citing documented events and statements from government officials and senior political leaders, supported by 574 footnotes.

The document asserts that “the acts and omissions by Israel complained of by South Africa are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group", on contravention of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

It is worth the time and effort to read the submission: Application instituting proceedings and Request for the indication of provisional measures.

Malaysia, Türkiye and the other 55 members of the Organisation of Islamic Cooperation (OIC) have already rallied behind South Africa's initiative, and other countries are likely to follow suit.

The South African-born British former cabinet minister, Peter Hain, wrote in The Guardian that “decent South Africans of all races and creeds are contemptuous of what they see as profound double standards by global north leaders — wanting backing for Ukrainian self-determination but being complicit in the denial of Palestinian self-determination and culpable in the horror in Gaza. The geopolitical breach with the global south is deepening and will cost Washington, London and Brussels dearly in an increasingly turbulent world."

The influential British journalist and Guardian columnist Owen Jones said South Africa's submission “is one of the most important things written in our time."

South Africa's legal team preparing the case is led by the renowned veteran of international law, Prof John Dugard (87), and includes Max du Plessis SC, Tembeka Ngcukaitobi SC and Adila Hassim SC, plus junior counsel Sarah Pudifin-Jones, Lerato Zikalala and Tshidiso Ramogale. Vaughan Lowe KC and Blinne Ní Ghrálaigh KC are the two external counsel involved.

Israel's case will probably be presented by celebrity lawyer Alan Dershowitz, who represented Donald Trump in his impeachment hearing. Haaretz questioned this choice, asking: “Why must Israel resort to Dershowitz — who has demonstrably proved over the years to be in the ‘Dershowitz business' — rather than someone who carries genuine international law bona fides?"

The proceedings at the ICJ in The Hague will be internationally broadcast next Thursday and Friday.

The president of the ICJ is American judge Joan Donoghue. The other sitting judges come from France, Russia, Slovakia, Morocco, Somalia, China, Uganda, India, Jamaica, Lebanon, Japan, Germany, Australia and Brazil.

I was at a rally in Cape Town in December 2014 where Archbishop Tutu asked the crowd to chant with him: “We are opposed to the injustice of the illegal occupation of Palestine. We are opposed to the indiscriminate killing in Gaza. We are opposed to the indignity meted out to Palestinians at checkpoints and roadblocks. We are opposed to violence perpetrated by all parties. But we are not opposed to Jews.”

Mandela was always outspoken about the oppression of Palestinians, stating in 1997: “We know too well that our freedom is incomplete without the freedom of the Palestinians."

The Israeli government and Jewish organisations in South Africa responded hyperbolically to South Africa's application, accusing the country of siding with Hamas. Government spokesperson Eylon Levy claimed that South Africa “is now aiding and abetting that machinery of genocide" and that history “will judge South Africa for abetting the modern heirs of the Nazis."

The chief rabbi of South Africa, Warren Goldstein, says South Africa is now an ally and proxy of Iran and its plans to destroy Israel:

Yet South Africa's submission to the ICJ explicitly condemns Hamas's attacks on civilians and the abduction of hostages on October 7, referring to them specifically.

It is legitimate for Israel and other critics to accuse South Africa of double standards, especially in light of Sudanese dictator Omar al-Bashir being allowed to leave South African soil in 2017 before he could be arrested based on an ICC warrant; and the governing ANC's warm relationship with the Kremlin and President Vladimir Putin, even after Russia's invasion of Ukraine. (The popular theme on social media that crime and murder inside South Africa should be the priority and amounts to genocide is of course senseless.)

The Ramaphosa government could argue that the al-Bashir incident occurred during Jacob Zuma's presidency and that the current government has officially and repeatedly condemned Russia's invasion of Ukraine, however softly, while establishing ties with Kyiv.

I would argue that the scale of casualties and destruction in Gaza, including attacks on hospitals and schools, necessitated South Africa's appeal to the world's highest court.

One can only hope that South Africa's initiative will lead the government to adhere more faithfully to international law and conventions in the future.

A declaration from the ICJ finding Israel guilty of genocide could be a significant embarrassment for President Joe Biden's administration. Biden is the Netanyahu government's strong supporter and has just asked Congress for a further $14 billion in military aid to Israel.

A retired major-general of the Israel Defence Forces, Yitzhak Brick, told the Jewish News Syndicate last week: “All of our missiles, the ammunition, the precision-guided bombs, all the airplanes and bombs, it’s all from the US. The minute they turn off the tap, you can’t keep fighting. You have no capability … Everyone understands that we can’t fight this war without the United States. Period.” Biden is the primary obstacle to Israeli victory - JNS.org

Prof Shibley Telhami, a Middle East specialist at the University of Maryland, tells the American magazine Mother Jones that Biden is now hated more than Netanyahu in the Arab world. (Read more about the magazine's analysis of Biden's position on Israel here: How Joe Biden Became America’s Top Israel Hawk – Mother Jones

Admiral John Kirby, coordinator for strategic communication of the US National Security Council, may have to eat humble pie after the ICJ ruling. He described South Africa's application as “meritless, counterproductive, and completely without any basis in fact whatsoever."

♦ VWB ♦

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