IN 2016 South African Minister of Justice and Constitutional Development Michael Masutha confirmed during a media briefing that South Africa had submitted to the United Nations (UN) its ‘notice of intention to withdraw from the International Criminal Court (ICC)’
Readers should note here, the ICC decides cases involving individuals while the International Court of Justice (ICJ) hears cases between states.
The timing of the South African Government’s withdrawal decision may have been prompted by wanting to be the first country to withdraw from the International Court structure. “At the time, several states were considering doing so,” writes law scholar Jeremy Sarkin.
“Withdrawing could therefore have been done then as a means to show some leadership to other African countries (Burundi, Gambia) that were also considering this option.”
The ICC announcement followed an embarrassing episode in which the African Union found itself divided over the refusal or failure of “Uganda, Chad, Kenya, Djibouti, Malawi, Congo, South Africa, and Egypt to be involved in detaining and surrendering President Al Bashir to the ICC”. The court itself was accused of “hunting” African leaders “to the exclusion of any other head of state or government official elsewhere in the Global North.” The ICC categorically denied any accusations of “partiality”, arguing that the sum of African cases referred to the Court has “more to do with the Court’s jurisdiction being limited to states parties to the Rome Statute, and for crimes committed after 2002.”
In the end it took a High Court judgement to scupper such plans — delivered on 22 February 2017, the decision of the North Gauteng High Court criticised the Government’s conduct, declaring ‘unconstitutional and invalid’ the executive’s decision to deliver to the UN South Africa’s notice of withdrawal from the ICC, and ordered the Government to ‘rescind with immediate effect’ the said notice. “On 13 March 2017, the Justice Minister, in compliance with the court order, gave notice to Parliament that he was revoking the bill that, if signed into law, would have officially decreed the divorce, and severed the almost 20-year-old tie between South Africa and the ICC.”
Enter the SA-Israel-Gaza case
This week a team of South African jurists lead by Professor John Dugard, filed a case before the International Court of Justice (ICJ) in the Hague alleging that Israeli action inside Gaza ‘amounted to the crime of genocide’. The application “concerns acts threatened, adopted, condoned, taken and being taken by the Government and military of the State of Israel against the Palestinian people, a distinct national, racial (sic) and ethnical (sic) group, in the wake of the attacks in Israel on 7 October 2023″
South Africa claims that it ‘unequivocally condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas and other Palestinian armed groups.” And “no armed attack on a State’s territory no matter how serious — even an attack involving atrocity crimes — can, however, provide any possible justification for, or defence to, breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.”
It is an astonishing allegation considering the ongoing rocket attacks on Israeli civilian centres by Hamas and Islamic Jihad, and the timing of the massacre, which occurred on the 50th anniversary of the Yom Kippur War, on the religious holiday of Simchat Torah.
South Africa further claims a ‘moral duty’ to bring the application before the court (a duty entirely absent where the ANC is concerned when it came to actioning on an ICC warrant for the arrest of Omar al-Bashir, convicted for the 2009 Darfur Genocide), and proceeds to outline a tragedy involving the ensuing war and events of the past months. The litany of horror is indeed sobering and cause for alarm.
The application is historically significant since it effectively brings one of the oldest ongoing conflicts, under the auspices of international structures, institutions created in the aftermath of the Nuremberg Trials which followed World War Two and the creation of the United Nations. In this respect, any attempt, no matter how misguided, to resolve and mediate matters, providing a path to peace without resorting to outright war and murder of civilians, is worthy of support — unfortunately as already alluded to, the case is flawed for a number of reasons which will be outlined in brief below:
1. Nations are not races — neither the Israelis nor the Palestinians comprise a distinct racial group, as such — to put this another way, wearing a Keffiyeh or Yarmulke is no indication of one’s alleged ‘race’ — there are black and white Arabs on both sides to the conflict, and the issues at hand, especially with regard to the status of Jerusalem appear to be religious in nature. (please read my piece debunking racialisation of the conflict here)
2. While the case begins by condemning the actions of both parties, it then proceeds to outline what is in effect a casus belli in favour of the Palestinians and their own motivations for armed struggle. Thus the October Simchat Torah attacks are provided with a sheen of legitimacy via an historical association with South Africa’s armed struggle, albeit an expression of solidarity, if not outright support of Jihad. (One should note that Mandela was a bipartisan on the issue supporting the rights of both parties). The religious war is cast by Dugard et al as nothing more than self-defense, in the face of a secular Nakba (a nationalistic catastrophe not entirely of the Palestinian’s own making). In this view Israel’s reaction in whatever form, whether via a blockade of the Jihadists or bombing of Gaza and its tunnel networks, is condemned as entirely disproportionate — motivated by malice instead of rockets and pure survival.
3. Although the application is at pains to reiterate UN condemnation of the annexation of East Jerusalem and settlements following the 1967 war, it fails to acknowledge UN Resolution 181 which partitioned the former British territory and created Israel in the first instance, and thus both the UN and Mandela’s support of the status quo of Israel’s existence, which Hamas and the ‘Palestinians’ for the most part, oppose. This cherry-picking of issues and one-sided irredentist narrative, cast within legal terms, is pretty much par for the course amongst those who support the de facto return of the Palestine colony “from the River to the Sea” and who deny the events which lead up to the creation of the Israeli state.
4. More significantly, the application painfully ignores the role played by the ‘President of the All-Palestine Government in Gaza’ (1948-1956) Amin al-Husseini in promoting and furthering a policy known as the ‘Final Solution’, following his participation in the 1941 Farhud in MENA, which resulted in an actual genocide. One has merely to pose the question of what problem was the ‘Final Solution’ seeking to solve in order to discover the primary subject of the 1938 Evian Conference, a tragic moment in which world powers, and later South Africa under Jan Smuts, deliberated on the very issue of the flood of Jewish refugees flowing into British Palestine and elsewhere. As German philosopher Immanuel Kant had once put it, ‘there are Palestinians amongst us’, he was however referring to the ‘Jews of Europe’.
Set aside the tragic drama of the October ‘Simchat Torah attack’, the Israeli declaration of war, the professed motivations for self-defense by either party, the resulting military intervention, alongside the catastrophic, forced movement of the Gazan population, (which have included the bombing of civilian centres, and casualties which include journalists, medical staff, and children, all very real humanitarian issues) and one cannot help but come to the conclusion that the entire world, would have been in a better position if it had acted to prevent this disaster at the outset — if more care was taken to debating both sides instead of negating either party — and if South Africa had acted sooner by supporting the ICC in stopping prior acts of genocide in Darfur and elsewhere in Yemen and Syria.
In this respect our country deserves to be taken to task for an historical failure, the lack of will to support multilateral institutions, in particular the recent undermining of the UN with regard to the General Assembly censure of the Russia-Ukraine war. The South African case would be a lot firmer if our country were able to claim a moral high ground, on the basis of legal principle and foreign policy evenly applied. If we were able to lodge our opposition to war in all its forms and by implication a defense of our pacifist constitution, instead of cherry picking issues and taking sides, shifting with the tide of public opinion.
READ: ICJ Gaza genocide case: South Africa set to discover law of unintended consequences
READ: Why are we going to the International Court of Justice?
READ: Irwin Cotler: South Africa is inverting reality by accusing Israel of genocide