South Africa’s case before the International Court of Justice
Interview with Professor Dr iur. et phil. Alfred de Zayas*
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Current Concerns: The Republic of South Africa has submitted an 84-page application instituting proceedings against the State of Israel to the International Court of Justice (ICJ) in The Hague. The application is accompanied by a request to the Court for the indication of provisional measures. On 11 January, South Africa presented its case to the Court accordingly. With the application for interim measures, South Africa is seeking an immediate end to Israel’s war against the Palestinians. South Africa claims that Israel is pursuing genocidal intentions with its war.
What is your assessment of the application and South Africa’s presentation to the court? How do you assess the legal and political significance of this lawsuit?
Alfred de Zayas: The legal brief submitted by South Africa is compelling. Jurisdiction was established under article IX of the Genocide Convention, and South Africa documents in detail how Israel has violated article II paragraphs a, b, and c. The text of the Convention is as follows:
“Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group
(b) causing serious bodily or mental harm to members of the group
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part …”
South Africa has produced evidence to prove that Israel has committed all of these crimes. The key issue is that of “intent”, and pages 59–67 of South Africa’s legal brief carefully document this intent through the very words of Benjamin Netanyahu, his ministers and his generals. There is really no escape from a finding of genocide. Anything else would mean ignoring the language of the Convention. It would make a mockery of the object and purpose of the Convention. Moreover, the ICJ is bound by its own precedents.
Without a doubt, Israel’s actions in Gaza are far more vicious than the single massacre of Srebrenica 1995, which the International Criminal Tribunal for the former Yugoslavia and the International Court of Justice itself already declared to constitute genocide. Israel has definitely crossed the line. The threshold from a crime against humanity to genocide has been crossed.
The ICJ is bound by its own precedents and cannot backpedal on this. If it did, it would lose all authority and credibility. This is a make-or-break moment for the ICJ.
Israel responded before the ICJ on 12 January, rejecting all accusations and instead trying to put Hamas and South Africa in the dock. How do you assess Israel’s statement?
The cynicism of the Israeli response is chilling. We know that lawyers are trained in “reinterpreting” the law, finding loopholes in treaties, trying to weasel out from obligations. But here we see deliberate destruction of language, distortion of reality, upending of truth. In a very real sense, this entails an insult to the intelligence of the 15 judges sitting in the ICJ. It sends out the wrong message to the world.
From your many years of experience as an international law expert and insider of international organisations, what do you expect the ruling to be?
The ICJ has no choice but to issue the order of cease and desist, and it should do it as soon as possible, because every day means the continuation of the genocide. The ICJ must hold that the provisions of article II a, b, c have been violated by Israel. It is a tough decision, but Israel has forced it upon the ICJ and upon itself. Such a finding entails a determination of civil and penal responsibility. Israel will be required to pay a high level of reparations to the Palestinians. But I would not hold my breath on this one. Israel has a track record of ignoring UN rulings with impunity, because it enjoys unconditional support by all US governments. This does not mean support by the American people, only by the so-called democratic Presidents, Senators and Congressmen and Congresswomen who are in the service of continued imperialism and colonialism.
Israel has already announced that it will not accept any ruling against the continuation of its war. Could a ruling by the ICJ still have consequences? How would the international community react to a ruling against Israel?
An ICJ ruling against Israel means a significant loss of prestige not only for Israel but also for the United States and all countries that have failed to condemn the Israeli genocide against the Palestinians. By supplying the weapons to Israel, the United States, United Kingdom, France and Germany have become complicit in the genocide pursuant to article III e of the Convention.
An ICJ ruling against Israel should also trigger a “Uniting for Peace” Resolution1 by the General Assembly and an international boycott of Israel. Of course, the Security Council continues to be blocked by the US, which has already vetoed some 80 resolutions in the past – to shield Israel from the consequences of its illegal actions. I could see dozens of Latin American, African and Asian countries boycotting all trade with Israel.
Israel’s crimes more than justify the activation of the “Responsibility to Protect” doctrine laid down in General Assembly Resolution 60/1 of 24 October 20052, paragraphs 138 and 139. However, R2P has hitherto only been invoked against the adversaries of the “collective West”. This would be the first time that it could be applied against a Western-aligned state.
Israel can only wage this war because it is supported politically, financially and militarily by Western states, especially the USA and Germany. Do you see any signs that Israel’s supporting states will correct their policy after a ruling by the ICJ against Israel?'
No, at least not yet. The human syndrome of intransigence, of not wanting to accept that one is wrong, is stronger than common sense. The United States, the United Kingdom and the European Union, particularly Germany, will come out of this conundrum losing a lot of prestige in the eyes of the global majority in the world.
Can civil society do anything to end the war in the Middle East?
Yes, millions of people should go out on the streets in Berlin, Frankfurt, Zürich, Geneva, Paris, Lyon, London, Manchester, Amsterdam, The Hague, Rome, Milan, Copenhagen, Oslo, Stockholm and demand an immediate cease fire. Millions of people should demand of their “democratically elected” governments to stop the slaughter.
Silence is not an option. Qui tacet consentire videtur (Thus, silence gives consent). Even the jurisprudence of the International Court of Justice in the Bosnia v. Serbia genocide case of 19963 made it clear that there is an erga omnes obligation to prevent genocide. And Article III c prohibits the incitement to genocide, which our media is guilty of in its skewed reporting on the genocide against the Palestinians, in its apologetics of war crimes and crimes against humanity. The rulings of the International Criminal Tribunal for Rwanda4 are relevant on the penal responsibility of politicians and journalists who engage in incitement, which is also prohibited by article 20 of the International Covenant on Civil and Political Rights.
Article III of the Genocide Convention makes the governments of the US, France, Germany, United Kingdom complicit in the genocide. Civil society must know this and act accordingly. Article III stipulates: “The following acts shall be punishable:(a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.”
Professor de Zayas, thank you for the interview. •
1 Adopted on 7 October 1950, Resolution 377 (V) resolved that if the UN Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility to act as required to maintain international peace and security, the General Assembly can. https://www.un.org/en/sc/repertoire/otherdocs/GAres377A(v).pdf
2 https://undocs.org/Home/Mobile?FinalSymbol=A%2FRES%2F60%2F1&Language=E&DeviceType=Desktop&LangRequested=False
3 https://icj-cij.org/case/91
4 https://unictr.irmct.org/en/news/historic-judgement-finds-akayesu-guilty-genocide; https://encyclopedia.ushmm.org/content/en/article/incitement-to-genocide-in-international-law
See also a very readable article by the renowned international law expert Richard Falk; https://www.counterpunch.org/2024/01/22/western-media-bias-israeli-apologetics-and-ongoing-genocide/
* Alfred-Maurice de Zayas is a former UN Independent Expert on the Promotion of a Democratic and Equitable International Order (2012-2018), Senior Legal Officer in the Office of the UN High Commissioner for Human Rights, Secretary of the UN Human Rights Committee and Head of the Petitions Division. De Zayas grew up in Chicago, studied history and law, earned a J.D. from Harvard Law School and a Ph.D. in modern history from the University of Göttingen. He is the author of 13 books, including “Building a Just World Order” (2021), “Countering Mainstream Narratives: Fake News, Fake Law, Fake Freedom” (2022) and “The Human Rights Industry” (2023) (all books clartiypress.com). For his book “Building a Just World Order” he was honoured with the 2022 International Book Award in the category of Law.
“Light at the end of the tunnel”
There is light at the end of the tunnel – the ICJ has issued a provisional measure ordering Israel to stop the massacre of Gaza civilians. Will the ICJ now call a spade a spade, a genocide a genocide?
The ICJ judges had little choice but to follow their own precedents. It would have been incoherent and incomprehensible to deny provisional measures. The ICJ would have lost all authority and credibility.
The Bosnia v. Serbia ruling of 1996 is fully applicable to the Gaza war, and what Israel has done by far exceeds the crimes of Srebrenica. I pray as well for the Israeli hostages – victims who MUST be liberated.
Alone the precautionary principle in international law compelled the ICJ to issue provisional measures of protection. Behind each statistic is a human tragedy – on every side. Ceasefire is only the first step.
After becoming President, Nelson Mandela stated “our freedom is incomplete without the freedom of the Palestinians”. Mandela never forgot Israel’s support of Apartheid in South Africa.
Source: Tweet by Alfred de Zayas on the ruling of the ICJ of 26 January 2024
Broad international support for South Africa’s case before the ICJ
ef. Israel’s war crimes have led to ongoing protests and further lawsuits worldwide. The Governments of numerous countries are also explicitly supporting South Africa’s case before the International Court of Justice in The Hague. These countries include Nicaragua, Venezuela, Cuba, Bolivia, Malaysia, Turkey, Jordan, Bangladesh, the Maldives, Namibia, Pakistan, Colombia and Brazil. In addition, there is the Arab League and the Organisation of Islamic Cooperation (OIC) with 57 member states, as well as over 1,000 popular movements, parties, trade unions and other organisations, including a petition from over 600 Israeli.
On 15 January, the Turkish state news agency Anadolu reported that South Africa was preparing a separate lawsuit against the US and UK governments. South African lawyer Wikus van Rensburg, who is leading the team of now almost 50 lawyers, argues that the two countries are complicit in Tel Aviv’s war crimes against the people of Gaza.
Chile will also file a complaint with the International Criminal Court “to request an investigation into the international crimes committed in the occupied Palestinian territories”, as Chile’s permanent representative to the United Nations (UN), Paula Narváez, announced to the UN General Assembly in New York on 9 January. “Chile will not remain indifferent to the current situation and the pain of the Palestinian people.”
After the ICJ proceedings, there were also major protests in the USA, which were also directed against the bombing of Yemen on the same day that South Africa presented its case. Last weekend alone, 400,000 people demonstrated in Washington D.C. to demand an immediate ceasefire and protest Israel’s ongoing genocide in Gaza. The demonstrators left bloody baby dolls at the gates of the White House to condemn the genocide in Gaza and the killing of more than 10,000 children. In Spain, tens of thousands of people demonstrated in 115 cities last Saturday.
At the 19th Summit of the Non-Aligned Movement (NAM), which was held in Uganda from 15-20 January, African leaders also condemned Israel’s military action in the Gaza Strip and called for an immediate end to the ongoing conflict. The NAM is an association of 120 states that do not formally belong to any of the major power blocs. The Non-Aligned Movement, originating during the collapse of the colonial systems and at the height of the Cold War, holds significant historical importance. According to its website, the NAM has played a pivotal role in the decolonisation processes and is committed to foster global peace and cooperation.
The President of the United Nations General Assembly, Denis Francis (Trinidad and Tobago), in an urgent statement, called on the NAM to use its influence to stop the devastating violence: “I must tell you that I am deeply concerned and indeed dismayed about the ongoing calamity in the Gaza Strip, and so, I call upon this movement to exert its influence in bringing a halt to the carnage that we are all haplessly witnessing. That situation behoves us to ask, how much is enough?”
Uganda’s President Yoweri Kaguta Museveni echoed these words: “We, the resistance fighters of Uganda, are flabbergasted and look down with contempt at the philosophical, ideological, and strategic shallowness of some of the actors in the world. Why not respect the freedom of everybody if you say you are a democrat? How can you say you are a democrat and yet you want other people to be slaves?”
He also cautioned leaders against imposing their narrow uni-ideological orientation to a society they live in , let alone the world:
“The oppressors miscalculate when they use their temporary advantage in science and technology to think that they can use that to indefinitely oppress other people. The oppressed will learn, catch up and defeat the oppressor. That is why Empires always collapse. The idea of Empires is an evil idea. Why do you not seek to influence people by your good example, instead of manipulation, lectures and threats?”