South Africa vs. Israel

Translated by Michela Scappaticci 

On Monday 8th January, Emergency requested a meeting with the highest authorities of the Italian State to submit over 100,000 signatures to the call for a permanent ceasefire in Gaza. Rome was in fact among the 23 abstainers from voting for the resolution proposed to the UN General Assembly for an 'immediate humanitarian ceasefire' in the Strip.

Although non-binding, the resolution provided a litmus test of international reactions to the reignition of hostilities in the Middle East. The 153 votes in favour compared to just 10 against leave little room for doubt. However, as ISPI researcher Chiara Lovotti points out, Washington's 'no' vote carries incomparable specific weight, since "as long as it has the formal support of the United States, Israel will most likely continue undisturbed".

The Security Council, which is in charge of making binding decisions, after almost a week of diplomatic wrangling to override the US veto, threw up a watered-down resolution on 22 December for aid to civilians in Gaza, cancelling the 'urgent cessation of hostilities' in the initial drafts.

Nevertheless, the US appeared increasingly isolated.

Towards the end of 2023, South Africa took an alternative route. Pretoria has in fact brought Tel Aviv before the UN's highest court, the International Court of Justice (ICJ), denouncing Israel's military campaign in Gaza as genocidal and asking the court to order the suspension of military operations in the Strip as a 'provisional measure'.

A case between two hemispheres

Eylon Levy, spokesman for Israeli Prime Minister Benjamin Netanyahu, called the accusation an 'absurd blood slander'. Warren Goldstein, Chief Rabbi of South Africa, condemned the action as support for Hamas's war against Israel by proxy for Iran, sniffing anti-Semitism behind the anti-apartheid cloak of the African National Congress (ANC) - the party that was once Nelson Mandela's, in power continuously since 1994.

But why would South Africa, a country with a clear Christian majority, sue the Jewish state, more than 6000 km away?

Chris McGreal writes in the Guardian that the case brought by Pretoria comes after years of deteriorating relations with Tel Aviv. Behind it is alleged to be the legacy of Israel's military alliance with the South African segregationist regime and the ANC's decades-long support for the Palestinian cause. The latter, as famously denounced by Archbishop and activist Desmond Tutu, is supposedly fighting the same apartheid dynamics that British dominion experienced until 1994.

At the same time, Pretoria has confirmed itself as a leader in criticism of Israel by the BRICS, who are unanimously in favour of a ceasefire. Although not purely instrumental, mere humanitarian reasons would not seem enough to explain this unequivocal attitude, which betrays the aim of counterbalancing the United States on the international scene.

Now what?
As Prof. Magnus Killander explains in The Conversation, South Africa brought Israel before the ICJ on charges of violating the 1948 Genocide Convention, to which both countries are signatories. On the basis of Article IX., Israel has announced that it will send a legal team in its defence to The Hague, the seat of the Tribunal.

The first step in the case is the public hearings on 11 and 12 January to allow South Africa and Israel to respond to the aforementioned 'provisional measures' that the Court is expected to apply within a month or two. These constitute interim orders that are legally binding on the parties pending final judgment, which can easily take years (ICJ Statute, Art. 41).

The interim measures chosen by the Court may differ from those proposed at the hearing. At the same time, they may provide for a suspension of Israeli military operations in Gaza without implying an a priori condemnation of Tel Aviv.

But in practice?
Although formally binding, the Court has no executive body to enforce interim measures.

According to lawyer Mattei Alexianu, the ICJ's interim orders are only enforced half the time, with an even lower percentage for recent higher-profile cases.

In March 2022, the same court ordered Moscow to cease the attack on Kiev begun the month before as a provisional measure in the Ukraine vs. Russia case, while assessing whether the Kremlin's actions violated the same Genocide Convention. Next 24 February will mark the second anniversary of Putin's special military operation, a sad testimony to the practical ineffectiveness of the Hague Tribunal's provisional measures.

Moreover, as Lawyer Jesse Lempel warns, there are legal complications that could deter the ICJ from ordering the suspension of Israeli military operations in Gaza.

The Court's Statute, in fact, is part of the United Nations Statute, and is therefore subject to Article 51 of the latter, according to which, 'nothing in this Statute shall prejudice the natural right of individual or collective self-defence [...]'. It is highly questionable whether the war waged by Tel Aviv against Hamas is governed by Art. 51. However, it is likely that the Court will move circumspectly to avoid setting a precedent that undermines the non-derogation of one of the pillars of international law such as the right to self-defence.

In short, all useless?
This being said, reducing the South Africa vs. Israel case to a sterile drama would seem premature and overly defeatist.

From a legal point of view, the locus standi used by Pretoria - that is, the legal basis for bringing the case before the ICJ - promises important consequences for the application of human rights treaties.

As Prof. Luciano Pezzano pointed out, South Africa insisted on the erga omnes partes nature of the obligations of the Genocide Convention. The Latin phrase implies that these obligations, including the obligation to prevent and punish the crime of genocide (Art. I), apply to all parties signatory to the treaty, regardless of whether they are directly involved in the crime. By emphasising its obligations in prosecuting Tel Aviv in the name of Art. IX, Pretoria would suggest the connection between the obligation to prevent genocide and the obligation to sue at the ICJ a country that is violating the Convention, even if it is literally located in the opposite hemisphere. If upheld by the Court, the example of South Africa would reinforce the image of the obligation to prevent and punish as a truly global duty.

On a practical level, Patrick Wintour writes in the Guardian, even if the Court were unable to stop Israel's military operations in Gaza, its unfavourable decision would lead to considerable image damage for Tel Aviv, potentially causing at least a change in the war campaign. The very fact that Israel chose to defend itself in front of the ICJ - as opposed to Russia - makes it more complex for it to ignore an adverse verdict.

Moreover, bringing the case to the Hague Tribunal has reflexively highlighted accusations levelled at Israeli conduct in the Strip from across the globe, even from US allies themselves. The growing international condemnation of Netanyahu's government has not left the White House indifferent, as it has begun to feel the price of the unwavering support provided to Israel so far.

So, although this case is unlikely to bring peace bells to the Strip, it remains inadvisable to sound the death knell for international law.

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