For South Africa, the process is already a success: whatever happens, it will present it to its own audience and allies, as well as to the anti-Israel public, as a fight for the human rights of the Palestinians and against "apartheid".
On December 29, 2023, South Africa sued Israel at the International Criminal Court for genocide against the Palestinians in Gaza.
Why South Africa?
Already Nelson Mandela considered Yasser Arafat a comrade in arms (1990). Both were clients of the Soviet Union,
both set up their activities, which do not shy away from terrorism, as a fight against "neocolonialism" and "racism".
Other commentators have pointed out that the Ramaphosa administration, under fire for poor economic performance, crippling power outages and public sector corruption, is taking a chance for its own benefit rather than being completely altruistic towards the Palestinians. The country will hold elections in May or June this year, and according to several surveys, the support of the ANC is below 50 percent - for the first time in history.
South Africa can also record foreign policy success, as it is officially supported by Turkey, Jordan, Brazil, Colombia, Bolivia, Pakistan and Malaysia, as well as by the Organization of Islamic Cooperation with its headquarters in Saudi Arabia and 57 member states.
Why in The Hague?
The International Criminal Court (ICJ) in The Hague was established in 2002 to prosecute individuals suspected of genocide, crimes against humanity, war crimes and crimes of aggression.
It is interesting that the current accuser, South Africa, along with Burundi and Gambia, accused the court of being biased against African states, and therefore announced its withdrawal from the Rome Statute in October 2016.
In 2017, South Africa's Supreme Court declared the withdrawal unconstitutional and ordered the government to withdraw its withdrawal decision.
We are talking about the crime of genocide in the case of "acts committed with the intention of the complete or partial destruction of a national, ethnic, racial or religious group". It is considered genocide:
1. Killing members of an ethnic group
2. Causing serious physical or mental harm to members of an ethnic group
3. Consciously influencing the living conditions of an ethnic group in order to physically destroy it
4. Introducing measures to prevent births within an ethnic group
5. Transferring children of an ethnic group to another ethnic group forcing.
The UN Convention on the Prevention and Punishment of the Crime of Genocide was the first human rights treaty adopted by the UN General Assembly on 9 December 1948, signaling the international community's commitment to "never again" the atrocities of World War II.
It could take years for the ICJ to issue a final ruling. Similar proceedings against Serbia lasted more than a decade.
However, this week's opening proceedings will focus on South Africa's specific request for a temporary measure as a matter of urgency due to the destruction of life and property in the Gaza Strip. According to experts, the provisional judgment could be handed down within weeks.
The charge
There are five charges, which were discussed at last week's hearing by lawyers for South Africa and Israel.
• Mass killing of Palestinians
The South African government argued that Israeli forces killed 23,210 Palestinians and wounded 60,000. These are the numbers of Hamas, which can neither be refuted nor proven. But the fact is that Hamas did not deduct the number of terrorists, the number of those killed and wounded by falling rockets, and the number of those for whom it appropriated aid. The submission interprets the statements of Israeli politicians regarding the elimination of Hamas as if they applied to the Palestinians as a whole.
• Causing physical and mental injuries
• Forcible resettlement and prevention of food supply
Adila Hassim, a lawyer representing South Africa, said that thousands of families have been displaced several times and half a million families have no homes to return to. As an example, he cited Israel ordering entire hospitals to be evacuated within 24 hours without providing assistance to evacuate the injured or medical supplies. He did the same in northern Gaza, where more than a million people were called to leave within a short period of time. Hashim added that Israel has deliberately imposed conditions that deprive Palestinians in Gaza of adequate shelter, clothing, bedding and critical ARTICLES. He said there was no safe water for drinking, washing and cooking, and that the number of diseases, including diarrhea, had skyrocketed. He said that while more Palestinians may die of hunger and disease, the siege will continue.
The South African submission made no mention of the tunnels built and used by Hamas under civilian areas, the ongoing clashes between Hamas militants and IDF soldiers, the continuous rocket attacks by Hamas from the congested southern areas, the hundreds of thousands of Israelis being forced to leave their homes, and the about the worsening situation of Israeli hostages and their families. Without mentioning these, of course, Israel's operations can appear illegal and malicious.
At the same time, the law of war obliges Israel to call on civilians to leave the operational area in order to spare them. Israel is practically the only warring party in the world that complies with this, yet they want to hold it accountable for it. Neither in Libya, nor in Iraq, nor in Syria, nor in Afghanistan did the USA and its allies comply with this requirement, nor did they excel in providing for civilians.
Israel argues that the civilian casualties result from the circumstances of the urban struggle against Hamas and not from genocidal intent. Israel has presented evidence that it is delivering food, water, medical supplies and fuel to Gaza, proving the opposite of genocidal intent. The essence of Hamas's strategy is that it fights from "homes, mosques, UN facilities, schools and – perhaps most shockingly – hospitals." They also pointed out that the representatives of South Africa misrepresented Israel's repeated warnings to Gazans to leave the areas of heavy fighting as allegedly making life impossible and thus genocidal in nature, when these warnings were its purpose is to evacuate civilians from operational areas - in other words, to protect life.
The South African accusations blame Israel for everything that happens in Gaza. They do not mention Hamas, which does nothing to provide for the population living under its rule, but uses it as a human shield. For its part, the IDF has made several efforts to alleviate the harm and suffering of Palestinian civilians (including early warning calls, humanitarian corridors for evacuation, facilitating humanitarian assistance, etc.)
• Destruction of the healthcare system
• Preventing the birth of Palestinian children
According to Hassim, Israel is preventing the life-saving treatment needed to help babies be born. He added that this means preventing births in Gaza and constitutes genocide. Hassim also quoted Reem Alsalem, the UN special envoy on violence against women and girls, who had previously warned that "Israel's reproductive violence against Palestinian women, newborns and children ... can be classified as genocide." The UN had nothing to say about the atrocities and sexual violence committed against the killed Israeli women and the hostages.
Israel's position
"We are fighting terrorists, we are fighting lies," Netanyahu said.
"Today we saw an upside down world. Israel is being accused of genocide while it is fighting genocide”.
Israel's lawyers pointed out that by seeking the court's intervention, South Africa was abusing the court and potentially undermining the Genocide Convention.
According to attorney Dr. Christopher Staker, if the court grants the temporary injunction, it "would mean that when a recognized terrorist group commits a terrorist attack against another state, a third party seeking a temporary injunction can prevent a party from defending itself." Or as the opening speaker, Tal Becker, a legal advisor to the Israeli Foreign Ministry, put it: "If the term 'genocide' can be rendered weightless as [South Africa] suggests, if interim measures can be taken as you suggest, then the [Geneva ] convention becomes the charter of the aggressors. It will reward and even encourage terrorists who hide behind civilians, at the expense of states that want to defend themselves against them". On the merits of the case, Becker stated:
The most important ingredient of genocide – the intention to destroy a people in whole or in part – is completely absent.
With the operation in the Gaza Strip, Israel is not trying to destroy a people, but rather to protect a people - its own people who are under attack on several fronts. He does so in accordance with the dictates of the law, even when faced with a heartless enemy who is determined to use his very commitment against him.” Indeed, Israel claimed that, given Hamas' genocidal intentions, a request to suspend a military operation aimed at protecting the citizens of Israel from genocide is absurd. Any interim measure ordering Israel to cease military operations in Gaza,
"would deny Israel its obligations to protect its citizens, the hostages, and the more than 110,000 internally displaced Israelis who cannot safely return to their homes."
The interim measure for an immediate cessation of fighting requested by South Africa may prevent regime change in Gaza,
it could allow Hamas to win an important political victory and retain the assets it needs to continue the fight, including the Israeli hostages it holds.
Israel, on the other hand, should freeze a situation on the front that it considers incompatible with its national security. At the same time, the motion does not include any obligations towards Hamas, and the court cannot oblige it to do anything.
For South Africa, the process is already a success: whatever happens, it will present it to its own audience and allies, as well as to the anti-Israel public, as a fight for the human rights of the Palestinians and against "apartheid".
Israel can only seek to draw the issue in the form of some kind of "one-way" decision.
Although the USA, Great Britain, Germany and Hungary stand by it, the strong pro-Palestinian sentiment in the Western European and American public limits their room for maneuver.
Featured Image: A protester stands in front of a Palestinian flag at the International Court of Justice building in The Hague on January 12, 2024, on the second day of hearings in South Africa's claim against Israel. South Africa has initiated genocide proceedings against Israel, claiming that the Jewish state violated its obligations under the 1948 UN Convention on Genocide with its offensive against the Gaza Strip. MTI/EPA/ANP/Koen Van Weel
