South Africa is preparing for a diplomatic backlash from the US and Europe as the government takes on Israel in the International Court of Justice (ICJ) this week over claims of genocide in its war in Gaza.
Conceding that South Africa’s relations with the West could suffer as a result of the ICJ move, department of international relations and co-operation director-general Zane Dangor said there is a plan to counter expected Western opposition. He also revealed that there were indications that more countries could join South Africa after the hearing this week.
“We will be able to see how we regain this after the hearings are done but clearly, under the current circumstances, the relationship is not going to be normal and we will have to look at how do we engage after this, particularly working towards a permanent solution for the relationship,” Dangor said.
He was confident the relationship with the US could be managed.
“We have engaged with the US and have always said to them that we have always differed on this [Palestine] issue and the situation has never impacted our bilateral relations and we have had constant discussions with them and agreed to maintain that.
“We will continue to engage with the [US] state department and the national security adviser but ultimately, they know that on this, for historical reasons, we both take very dramatically opposing positions. We feel that our position is the principled one and that is something that they understand.”
The South African government will be represented by top legal minds that include John Dugard SC, Adila Hassim SC, Tembeka Ngcukaitobi SC, Max Du Plessis SC together with Tshidiso Ramogale, Sarah Pudifin-Jones, Lerato Zikalala, Vaughan Lowe KC and Blinne Ní Ghrálaigh KC.
Whatever plays out at the ICJ after two days of hearings due on Thursday and Friday, the approach to the court marks a decisive shift in South Africa's relations with the West, especially the US.
The potential fallout follows tension with the US last year, when Russian President Vladimir Putin was “disinvited” from the Brics summit in Johannesburg to avoid having to arrest him after the International Criminal Court had issued a warrant. To defuse the crisis, South Africa sent a high-powered delegation to the US to assure legislators of the country’s neutral stance.
The ICJ move has been slammed by the South African Jewish Board of Deputies as an “expensive legal frolic”, but Palestinian ambassador to SA Hanan Jarrar has welcomed the development.
South Africa launched its case against Israel last month at the UN-create court accusing the state of Israel of committing genocide in its military campaign in Gaza. In addition, it wants the court to provide provisional measures to halt Israel’s military actions.
In response, Israel vowed to dispel SA’s “absurd blood libel” while the US said the submission was “meritless, counterproductive and completely without any basis in fact whatsoever”.
Dangor believes South Africa is resilient enough to manage whatever the outcome is.
“There is nothing unprincipled that we are doing, we are using the institutions of global governance in the manner in which they should be used. We are saying that when there are disputes between states, we need to use the institutions of global governance to resolve them for the purposes they were set up for and not to use force or coercive measures.”
Dangor said he and the department did not expect any outcome on the merits of the genocide case within a year but were confident the court will agree to interim measures to stop the military operations.
“We chose to do what is called an article 9 application, which is a contentious approach but what we are hoping to do is that we know that the merits of the argument will most likely take a minimum of a year, but we have asked for ... urgent provisional measures.”
The provisional measures are important because while the court deliberates on the merits of Israel’s actions being genocidal, it cannot allow the situation that South Africa is complaining about to continue, Dangor said.
“We are asking for provisional measures which include an immediate ceasefire and this is binding, unlike the General Assembly of the UN [resolution] which is not ... Unlike [an] article 8 approach of the ICJ, article 9 is binding.
“If the court rules on an immediate ceasefire and the opening of all corridors for humanitarian access, Israel, the US and everyone else have to respect that and if they do not respect it then they can be held liable for countermeasures through the UN system.
“It also puts a lot of pressure on, for example, the US, if the court rules that all the attacks must stop and aiding and abetting must stop. Then they cannot supply arms and so it becomes an arms embargo as well.”
South Africa will present its application for provisional measures on Thursday and Israel will put its version to the court the following day.
Because it is an urgent matter, Dangor said the court is likely to make its pronouncement a week after the hearing. It will be up to the UN Security Council and the General Assembly to monitor the implementation of the ruling, he said.
South Africa may approach other arms of the UN if the court ruling is not implemented.
Dangor would not be drawn on responding to assertions made by Israeli government spokesperson Eylon Levy when he confirmed that Israel would appear before the court to “dispel South Africa’s absurd blood libel”.
“I think it is sad that they are using the pain of the Jewish oppression over the centuries to try to deflect from the real issue. They are not dealing with the merits of our arguments and so we will engage with them and hear their counterarguments in court,” he said.
He believes South Africa has a strong case.
“Genocide depends on intent and people think that there must only be lots of people being killed but you can have 30,000 being killed but if there is no clear intention to kill a defined group in whole or in part, then it is war crimes and crimes against humanity and not genocide.
“If you kill five people and you can prove that the killing of those five people is because you intend to kill a whole group, in part or in whole, you can be charged with genocide. That is why, combined with the fact that the percentage of the people that have been killed and the civilians killed in Gaza is the highest even perhaps than the Second World War, it’s close to 2% of the entire population, that is massive.
“What we do in our application is that there are nine pages on the facts where we outline the statements of intent around genocide from senior officials from the prime minister to other ministers of government, officials, prominent members of the media and civil society.
“The Genocide Convention also compels all of us as state parties to prevent genocide and to punish those that incite genocide, so our argument is very strong. It is perhaps one of the clearest instances where intent can be proven, and our legal team has detailed it in a very concise manner.”
In the oral arguments South Africa is also expected to raise issues of involuntary movement, which will deal with the depopulation of Gaza and the deliberate destruction of the means to sustain livelihoods, including homes, hospitals and roads.
In terms of article 31, paragraphs 2 and 3, of the Statute of the ICJ, a state party to a case before the ICJ which does not have a judge of its nationality on the bench may choose a person to sit as judge ad hoc in that specific case.
Former deputy chief justice Dikgang Moseneke will join the bench of judges that will hear the case this week. As the opposing primary state party, Israel will also choose a person to sit on the bench if it is not represented.
The 15 court judges who will hear the case are president Joan Donoghue (US), vice-president Kirill Gevorgian (Russia), judges Peter Tomka (Slovakia), Ronny Abraham (France), Mohamed Bennouna (Morocco), Abdulqawi Yusuf (Somalia), Xue Hanqin (China), Julia Sebutinde (Uganda), Dalveer Bhandari (India), Patrick Robinson (Jamaica), Nawaf Salam (Lebanon), Iwasawa Yuji (Japan), Georg Nolte (Germany), Hilary Charlesworth (Australia) and Leonardo Brant (Brazil).
This week Malaysia and Turkey declared their support for South Africa’s application and Dangor believes more countries will pledge their support after next week’s case.
“I am given indications that many more countries are going to come on board after the provisional hearings to deal with the merits of the case because if they join before then the hearing can get postponed and that delays the proceedings on the urgency of the ceasefire.” South Africa has also received support from its Brics partners, he said.
The case will be funded by the state.
International law expert Dr Cathy Powell believes South Africa has a strong case against Israel.
“To grant provisional measures the court merely needs to find that it has prima facie jurisdiction or that a plausible case for jurisdiction has been made out.
“It does not need to make a final decision on jurisdiction and then it needs to be convinced that the state bringing the application for provisional measures has a right to bring it in connection with this case, that there is a likelihood of irreparable prejudice if it doesn’t grant the provisional measures and that the provisional measures requested relate to the complaint.”
The UN Security Council and General Assembly will be responsible for ensuring that the court order is implemented.
International relations expert Siphamandla Zondi says that South Africa taking the lead in the matter is no surprise because historically it has always stood on the side of Palestine and the creation of a two-state solution.
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