South Africa’s case against Israel – the world’s view

 Published in the Jerusalem Post, 22 January 2024

On January 14 Euronews, the multi-lingual European TV and online news network, published a wide-ranging survey of where many of the world’s sovereign states stood as regards the accusation of genocide brought by South Africa against Israel. 

South Africa instituted the proceedings in the International Court of Justice (ICJ) on December 29, 2023, and on January 11 and 12 public hearings were held at the Peace Palace in The Hague.  The charge alleges that Israel has committed, and is committing, genocide against Palestinians in the Gaza Strip, in violation of the Genocide Convention, and asks the court to order provisional measures requiring Israel to cease all military activity in the Strip.

The Convention on the Prevention and Punishment of the Crime of Genocide was unanimously adopted by the UN General Assembly in 1948.  It defined genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

South Africa's request for provisional measures to be ordered against Israel does not require the court to determine whether Israel has actually perpetuated genocide, but simply that it is "plausible" that genocide has occurred.  Of course if the court grants the provisional measure request, it would be a strong signal that it is minded to accept South Africa’s case against Israel.

The nation that has most firmly rejected South Africa’s genocide charge while proposing to do something about it is Germany.

On January 11 a spokesman for the German government announced that Germany is planning to intervene in support of Israel in the ICJ case.

“The German government firmly and explicitly rejects the accusation of genocide that has now been made against Israel before the International Court of Justice,” said spokesman Steffen Hebestreit. “This accusation has no basis whatsoever.”

He made it clear that Germany accepts special responsibility for Israel because of the Nazi genocide of Jews during World War II.  “In view of Germany’s history, crimes against humanity, and Shoah, the government is particularly committed to the UN Genocide Convention,” he said. Emphasizing Germany’s support of the ICJ, he announced that “the government intends to intervene as a third party in the main hearing.”

Under the court’s rules, if Germany files a declaration of intervention in the case, it would be able to make legal arguments on behalf of Israel.  One of the 17 judges hearing the case is Germany’s Georg Nolte.

Almost as explicit in rejecting South Africa’s genocide accusation – though not proposing to intervene actively – is the UK.  Foreign minister, Lord Cameron. said: “We don’t agree with what the South Africans are doing,”

while a spokesperson for prime minister Rishi Sunak said he believed South Africa's case was "completely unjustified and wrong," continuing: "The UK government stands by Israel's clear right to defend itself within the framework of international law."  

Visiting Israel a day before the court proceedings began, US Secretary of State Antony Blinken said that South Africa's allegations are “meritless" and that the case “distracts the world” from efforts to find a lasting solution to the conflict.  US National Security Council spokesman John Kirby said genocide is “not a word that ought to be thrown around lightly, and we certainly don’t believe that it applies here.” The President of the ICJ and Chief Justice is Joan Donoghue, a US lawyer.

The Euronews analysis maintains that no Western country has declared support for South Africa's allegations against Israel, and that the EU also hasn't commented..  The majority of countries backing South Africa's case, it says, are from the Arab world and Africa, while in the Eurozone only Turkey has publicly stated its support.

Euronews notes that neither China nor Russia have said much about the case.  This is not, perhaps, surprising in view of the fact that both are themselves facing accusations of genocide. A case against Russia, arising from its activities in its war against Ukraine, is pending in the ICJ, and while China has not been formally charged, it has been accused of genocide against its Muslim Uyghur population.   Both nations are represented on the judges’ bench (China by Xue Hanqin, and Russia by the ICJ Vice-President Kirill Gevorgyan), and neither may feel comfortable about supporting the charge of genocide against Israel. If actions by Israel clearly falling short of the "intent" requirement of the Convention are sustained, their own countries’ interests could be at risk. 

The Muslim countries that declared support for South Africa as soon as it filed its case at the ICJ were almost all represented by the 57-member strong Organization of Islamic Cooperation (OIC). Its statement condemned “mass genocide being perpetrated by the Israeli defense forces” and accused Israel of “indiscriminate targeting” of Gaza's civilian population.  Support also came from the Arab League and from Pakistan, Malaysia and Namibia.

Brazil, which is represented among the ICJ judges by Leonardo Nemer Caldeira Brant, has indicated that its president, Luiz Inácio Lula da Silva, backs South Africa's case.  The Brazilian foreign ministry  said it hoped the case would get Israel to “immediately cease all acts and measures that could constitute genocide."

Other countries, while strongly supporting a cease-fire in Gaza, can see that accusing Israel of intending to destroy the Palestinian people is a step too far.  For example Ireland’s premier, Leo Varadkar – far from Israel’s best friend – has said he hoped the court would order a cease-fire in Gaza, but that the genocide case was “far from clear cut.”

Innocent civilians suffering the effects of a conflict which is none of their making naturally arouses feelings of deep compassion.  No matter that Israel’s Defense Forces (IDF) operate under strictly enforced rules of engagement restricting military action to the targeting of Hamas and its strongholds, collateral deaths and injuries are inevitable in a war situation – and even more so in the particular circumstances of the Gaza Strip, where Hamas has deliberately positioned itself in and among the population. 

But calling for a ceasefire ignores a key consequence.  Were the ICJ to order one and were Israel to comply, Hamas would be under no obligation to stop sending rockets, missiles and drones into Israel (as it is still doing); nor would it be deterred from repeating the massacre of October 7 “again and again”, as it has undertaken to do. Hamas would continue to hold 132 Israeli hostages, and Israel would be barred from trying to rescue them or effect their release.  In short, Israel would be prohibited from fulfilling its obligations under international human rights law to protect and defend its citizens.

One can only hope that South Africa’s case will fail to stand up. 

Published in the Jerusalem Post and the Jerusalem Post online as "The world's view: Reactions to South Africa vs Israel" , 22 January 2024:
https://www.jpost.com/opinion/article-783122