Why South Africa? What is the Legal Path of the Case? Why Did “Israel” Comply and Appear in Court?

Why South Africa? What is the Legal Path of the Case? Why Did “Israel” Comply and Appear in Court?

Last Thursday, January 11, the International Court of Justice (ICJ) began looking into the case filed by South Africa on December 29, 2023, in which it accused “Israel” of committing the crime of “genocide” against Palestinians in the Gaza Strip, on the basis of “Israel’s” violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), based on both parties being signatories to the Genocide Convention. This is the first time that a case has been filed against the Zionist entity in the ICJ. However, in 2004 the ICJ considered a request for an advisory opinion related to the Zionist entity, specifically regarding the separation wall that it built in the occupied West Bank, which the ICJ concluded was illegal. There is also before the ICJ a request for another advisory opinion – on which a decision has not yet been issued –referred by the UN General Assembly at the end of 2022 on the legal consequences of “the Israeli occupation, settlement, and annexation”.

Many media, political, and human rights organizations covered the sessions in which the two parties presented their case. A lot of general information was circulated about the ICJ, the Genocide Convention, and what has been happening in Gaza since last October 7. We will not cover this type of information here, but we will try to answer some basic questions briefly, each of which can be expanded upon in later articles.

Why South Africa?

South Africa has an important symbolism as a country that was liberated from the longest rule of an apartheid regime from 1948 until 1994. That period included an important resistance movement affiliated with the African National Congress, which makes South Africa fully aware of the repercussions of living under the authority of an apartheid regime – as “Israel” has been legally characterized by many international and human rights bodies – meaning that there is a moral aspect based on the shared history of the struggle for self-determination.

It is worth noting that the last three countries that continued to support the apartheid regime in South Africa were Britain, the US, and “Israel”. Additionally, the US did not remove Nelson Mandela and the African National Congress from its terrorism lists until 2008, that is, 14 years after the end of the apartheid regime in South Africa.

On the other hand, there are historically important relationships between South Africa and liberation movements in the region, specifically with Palestine, Algeria, and Libya. For example, “Spear of the Nation”, which is the military wing of the African National Congress, was established in 1961 after seeing no steps taken to bring about reforms through peaceful action and being convinced that it was not possible to continue with peaceful action alone. The cadres of this organization received military training in a number of countries, including Algeria. The Palestine Liberation Organization was also a supporter of the right of the African National Congress to struggle by all means against the apartheid regime, and this relationship dates back to the 1970s.

Along the same lines, South Africa is one of the biggest supporters of the Palestinian cause. South Africa established diplomatic relations with Palestine in 1995, that is, a year after the end of its apartheid regime. South Africa was, and still is, at the forefront of countries criticizing the practices of the Zionist entity in Palestine and against the Palestinian people. For example, in November 2023, the South African Parliament voted in favor of a proposal calling for the closure of “Israel’s” embassy in South Africa and the suspension of diplomatic relations against the backdrop of the “Israeli” aggression against Gaza. South Africa has not had an ambassador to the Zionist entity since 2018.

Despite all this, there is a significance in form by South Africa’s submission of this request to the highest international judicial authority, as South Africa does not share any borders with the Zionist entity and there is no direct conflict between them in the military sense. Also, South Africa is not an Arab or Muslim country, so in a sense, it is an “unbiased” country, if the ethical, moral, and historical aspects are ignored, that is, in these aspects, there is indeed a “conflict” between the two parties.


What is the legal path of the case?

The ICJ is the UN’s main judicial arm. It is responsible for adjudicating legal disputes between states, based on international agreements and conventions signed and ratified by states parties, making them obligated to comply therewith. The ICJ also provides advisory opinions on legal matters referred to it by UN’s organs and agencies. In the case at hand, since both parties are signatories to the Genocide Convention, South Africa has the right to file a complaint against “Israel”, regardless of the fact that the country filing the complaint is not harmed by the party against which the complaint was filed.

As is known, adjudicating these cases may take years; in past cases based on the same convention, such as the case brought by Croatia against Serbia in July 1999, the final ruling was issued in February 2015. In other words, it is not expected that the ICJ rules on whether “Israel” has committed genocide at this stage of the case. However, in the near term it will consider the “provisional measures” requested by South Africa, including that the court order “Israel” to suspend its military operations, to take all necessary measures to prevent genocide, and to refrain from committing any acts that constitute genocide against the Palestinians. Given the urgent need for provisional measures and the risk of serious and irreparable damage, these claims take priority in the court’s deliberations and are usually decided within weeks.

Nevertheless, it is important to note that orders issued by the ICJ, including provisional measures, are binding on the parties, but the ICJ does not have a mechanism to enforce them, and in many cases, they are ignored by the parties concerned. Based on how “Israel” has behaved so far, it is expected to do so, that is, to ignore any order issued by the ICJ. Likewise, with regard to the final ruling in the case, while it cannot be appealed and is binding on the parties, the ICJ lacks a mechanism to enforce it. However, in the case of provisional measures – if ordered by the ICJ – or even a final judgment, the ICJ can refer the matter to the Security Council which, in accordance with Article 94 of the UN Charter, has the power to make recommendations or adopt a resolution on the measures to be taken to enforce the judgment.

In this context, it is expected that the US will likely use its veto power to block any resolution that affects the Zionist entity and its ability to continue its aggression. While it can be said that US’ use of its veto on the basis of a request from one of the UN’s main bodies and one of the highest international judicial authorities is an embarrassing matter, this has never stopped Washington, which has a long history of supporting the Zionist entity and its aggressions over decades. Even with regard to the current aggression against Gaza, the US has blocked all resolutions in the Security Council, including those that called for a temporary humanitarian ceasefire, and voted among a few countries against the UN General Assembly resolution on the same matter.


Other countries’ positions from the case

There are several countries and regional organizations that expressed their support for and welcomed the case brought by South Africa against “Israel”. Most of these countries can be described as being from the “Global South”. No Western country supported the case, while some explicitly or outright opposed it through statements by its officials; these include the US – of course – Britain, Germany, Hungary, Guatemala, and Paraguay.

According to some sources, South Africa has expressed its desire to carry out the case by itself. One of the main reasons behind this being the short timeline, as any country officially joining the case would have required submitting more complaints and documents to officially join the case, which would have postponed the hearings that took place last Thursday and Friday, which South Africa did not want.

As for other countries, for example, Tunisia stated through its Ministry of Foreign Affairs, a day before the opening session in the court, “that it will not join any lawsuit filed against the occupying entity before the International Court of Justice because that constitutes implicit recognition of this entity”.

Meanwhile, Algeria did not join the list of countries supporting the filed case, most likely for the same reasons as Tunisia. However, it is important to remember that Algeria led the initiative in calling on the International Criminal Court (ICC) to initiate an investigation into “Israel’s” actions and holding it criminally responsible. Algerian President Abdelmadjid Tebboune appealed on November 7, 2023, to the ICC to take measures to hold “Israel” accountable for the crimes it is committing against the Palestinians in Gaza.

Many sources suggest that the legal preparation for the case filed in the ICJ involved close cooperation between Algeria and South Africa, which are known for their strong relations and continuous coordination in various international forums, especially on the African arena, within which they are leading efforts to encircle Zionist influence. One example is what happened at the 36th session of the African Union Summit in February 2023, during which the “Israeli” delegation was expelled through a joint Algerian-South African effort, as “Israel” itself later admitted.


Why did “Israel” comply and appear in court?

As mentioned above, “Israel” is a signatory to the convention as issue in the case, so it cannot claim that the ICJ has no jurisdiction to consider or decide the case. However, just because a state is a signatory, this does not oblige it to appear in court or comply with its orders, but failure to appear in court has several repercussions that may be worse for the Zionist entity than appearing in court.

First: In the event of non-appearance, the ICJ can issue a ruling in absentia, and this means that the plaintiff, i.e., South Africa, is the only one that would present its case without any response or “defense” from the defendant – i.e., “Israel”. This also means that judgment could most likely be issued in a shorter time.

Second: From an appearance and media standpoint, so to speak, non-attendance could be “humiliating” for the Zionist entity in front of its supporters, primarily. This is due to several reasons, including that non-attendance is further evidence of the Zionist entity’s contempt and complete disregard for the international system and laws, something that is not in the interest of the Zionist entity currently when its popularity continues to decline around the world. Additionally, the prevailing narrative is that the Genocide Convention was essentially adopted in response to the “Holocaust”, so any action that shows disregard for this convention is not in the interest of the Zionist entity internationally and is an additional negative point with regard to international public opinion, especially because of the huge coverage the issue is getting.

Third: In the same context, the Zionist entity, as its legal team attempted last Friday, can use this coverage and this platform to promote the same narratives it has over the past three months to portray itself as a victim and further spread claims of its right to “self-defense”.

Fourth: In the context of avoiding a quick judgment in the event of failure to appear in court through a ruling in absentia, appearing in court will ensure – even if the court orders provisional measures – that the case will continue for years, which “Israel” can benefit from in several aspects, including postponing for several years the judgment that it is committing genocide, which could give the Zionist entity the ability to continue its brutal practices.

Fifth: Since it is certain that “Israel” appearing in court was due to US advice, request, or coordination, this will serve the US policies and plans. For one thing, “Israel” appearing in court, presenting its argument, and responding to the accusations raised against it by South Africa, all this could support the US when it uses its veto power in the Security Council to block any resolution relating to an ICJ ruling. The US can also blackmail “Israel” itself because it holds in its hand the veto power that it can use to save “Israel”, which means it can use this to control “Israel’s” actions more by threatening not to use the veto. In addition to all of this, postponing issuance of the judgment by “Israel’s” appearance in court will help prolong the war, which is consistent with the US’ plan in the region.

(النسخة العربية)

Last modified on Tuesday, 16 January 2024 21:25