Ian Linden: Israel and South Africa in The Hague

Ian Linden
May 8th, 2024

Ian Linden

For months since October 2023 Netanyahu defied the USA. Around the world, large demonstrations protested Israel's conduct of the war in Gaza, faring no better. Now the UN's International Court of Justice (ICJ) in the Hague, the nearest we have to a global judiciary, has intervened.

On 29 December 2023 South Africa filed an "Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel)", bringing a case to the ICJ based on allegations of acts of genocide by Israel in its war against Hamas. "It is important," the submission reads, "to place the acts of genocide in the broader context of Israel's conduct towards Palestinians during its 75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza, including the serious and ongoing violations of international law associated therewith, including grave breaches of the Fourth Geneva Convention, and other war crimes and crimes against humanity."

In the charged atmosphere created by Hamas' massive human rights violations while attacking Israel, 1,400 mostly civilian deaths and the taking of 224 hostages, followed by Israel killing over 30,000 Palestinians believed also to be disproportionately civilians in the destruction of Gaza, it is hard to overestimate the reverberations of such allegations. But why South Africa?

First some historical context. The ICJ was formed at the first session of UN General-Assembly and Security Council in April 1946 when genocide was recognised as a crime in international law. This was a product of the Nuremberg trials and a reaction to the Shoah, the holocaust. In 1948, genocide was carefully defined within the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention).

Both the horrendous massacres accompanying independence and partition of India and Pakistan in 1947, the migration of 14-18 million people, and the expulsions of Arabs accompanying the creation of the State of Israel, the 1948 Nakba (catastrophe in Arabic), were consequences of abrupt withdrawals of British imperial authority. During the same period, Afrikaner nationalists took power in South Africa. Any story of a steady, linear progress towards stable, co-operative nation states is inherently implausible.

After independence of the Portuguese colonies and Zimbabwe in the 1970s and 1980s, apartheid South Africa and the Israel-Palestine conflicts were left unresolved, unfinished business. Negotiations within South Africa, resulting from the collapse of the Soviet Union and the accumulated impact of sanctions, brought apartheid to an end in 1994. It was possible to imagine the Oslo Accords (negotiated between 1993-1995) as a similar breakthrough, drawing a line under conflicts between contending - ethnic - nationalisms.

A Whig history of the decline of imperialism and settler colonialism leaving nationalism triumphant doesn't convince. For example, the Kurdish population, somewhere between 30-45 million, greater than three-quarters of the UN's member states, spread as minorities between Turkey (16%), Iraq, Iran and Syria, achieved no such denouement.

Back to the ongoing court drama in the Hague. Hearings at the ICJ (mandated by the UN to litigate between States and not to be confused with the International Criminal Court, founded in 1998, to prosecute individuals) are presided over by 15 experienced judges drawn from 15 different countries. Ruling on the December 2023 South African application, the 15 included allies of Israel, the USA, Germany, France, and Australia alongside South Africa's fellow BRICS countries India, China, Russia and Brazil. Two extra judges were added for this contentious case: South Africa's Deputy Chief Justice Dikgang Moseneke and the former Chief President of Israel's Supreme Court, Aharon Barak.

The very recently retired President of ICJ who presided over the first hearing, Joan Donoghue, a former foreign policy adviser to President Obama, has explained that the court - almost unanimously - concluded that South Africa had a right to present their claim to the court and the Palestinians had a "plausible right to be protected from genocide'" After weighing the evidence, the ICJ found a risk of, "irreparable harm to the Palestinian right to be protected from genocide". Hence several provisional orders made by the court to the Israeli government directed at such protection. Donoghue emphasised that the ICJ had yet to rule on the plausibility of the South African claim that genocide was taking place. A Ugandan, Julia Sebutinde, the current ICJ Vice-President, was alone in sharing some of Israeli Judge Barak's dissenting opinions. The very day the ICJ, a UN body, delivered its first ruling on South Africa's application, 26 January, Israel alleged that 12 employees of the UN Works and Relief Agency (UNRWA) had participated in the Hamas attacks of 7 October.

South Africa made a further court application on 6 March this year in response to the deteriorating conditions in Gaza, stating that the Palestinians were "no longer facing only a risk of famine but that famine was setting in". On 23 March, the court ruled that further urgent measures were required of South Africa, particularly that the military unblock, and permit immediate distribution, of humanitarian aid "in full cooperation with the United Nations".

The distinctions made by the court are subtle, but none of their judgements suggest that South Africa's formulation of their case was unreasonable, politically prejudiced, improper or antisemitic. Because of the constraints on journalists, disinformation, and 'the fog of war', the clarity of juridical thinking and observation, not of course infallible, is particularly valuable. The court commendably saw the war in Gaza through the lens of law meant to protect human rights. South Africa received no standing ovation from the US Congress.

During apartheid, of course, Israel offered close military and intelligence cooperation to the South African regime. This included in the 1970s joint action in Angola. Investigative journalists and the CIA both provided evidence of shared testing of a nuclear weapon in the southern Indian ocean. In return for its support Israel got uranium 'yellow cake' from South Africa's then South-West African colony, now Namibia. Unsurprisingly, there was no love lost between the ANC, today's South African governing Party, and the Israeli State.

But South Africa's approach to the ICJ seems motivated chiefly by empathy with Palestinians in what their legal submission called the State of Israel's "75-year-long year apartheid". Nelson Mandela's words at a 1997 solidarity event in Pretoria set a distinctive tone: "The temptation in our situation is to speak in muffled tones about an issue such as the right of the people of Palestine to a state of their own. We can easily be enticed to read reconciliation and fairness as meaning parity between justice and injustice. Having achieved our own freedom, we can fall into the trap of washing our hands of difficulties that others face.... But we know too well that our freedom is incomplete without the freedom of the Palestinians..."

Mandela tellingly did not describe Israel's relationship with the Palestinians as 'apartheid'. Instead, he talked simply about "the recognition that injustice and gross human rights violations were being perpetrated in Palestine". This is clearly the problematic adopted by the ICJ court and could motivate the ICC to act against individual Israeli leaders.

As Mandela' speech also suggests, the unfinished business of the 1980s is about peoples obtaining freedom for self-determination and statehood. This is what linked Mandela's South Africa and Palestine in solidarity then, and still does today.

Professor Ian Linden is Visiting Professor at St Mary's University, Strawberry Hill, London. A past director of the Catholic Institute for International Relations, he was awarded a CMG for his work for human rights in 2000. He has also been an adviser on Europe and Justice and Peace issues to the Department of International Affairs of the Catholic Bishops Conference of England and Wales. Ian chairs a new charity for After-school schooling in Beirut for Syrian refugees and Lebanese kids in danger of dropping out partnering with CARITAS Lebanon and work on board of Las Casas Institute in Oxford with Richard Finn OP. His latest book was Global Catholicism published by Hurst in 2009.