ICJ ruling in SA’s genocide case against Israel lauded as ‘historic’ and victory for human rights

Pro-Palestinian supporters watch proceedings outside the International Court of Justice during the court ruling in The Hague, Netherlands, on Friday, Jan. 26, 2024. At the end of December, South Africa accused Israel in the ICJ of committing genocide in Gaza, a charge vigorously denied by the Israeli government. Photographer: Ksenia Kuleshova/Bloomberg via Getty Images

By Victoria O'Regan and Kristin Engel

26 Jan 2024

The order handed down by the International Court of Justice has been hailed as a ‘landmark victory’ for international law and human rights, as well as a ‘hope for humanity’ in both the political and civil society spheres, despite no ceasefire.

Drawing on South Africa’s own experiences of dispossession, discrimination and state-sponsored violence, President Cyril Ramaphosa said that South Africans cannot passively observe similar injustices being perpetrated elsewhere.

https://youtu.be/kPVKSjS8u60

Ramaphosa was addressing the country following South Africa’s unprecedented victory at the International Court of Justice (ICJ) on Friday, 26 January.

The World Court in The Hague ordered that Israel prevent the killing and harming people in Gaza, after South Africa filed a 84-page application at the ICJ on 29 December 2023, accusing Israel of violating the Genocide Convention, and seeking to halt its attack on Gaza as a provisional measure, pending the court’s final decision on whether Israel is perpetrating genocide.

Ramaphosa labelled the ICJ ruling as a “victory for international law, for human rights, and above all, for justice”.

“The court in its judgment affirmed South Africa’s right to take Israel to court – even though it is not a party to the conflict in Gaza,” he said.

“Some have told us to mind our own business. Others have said it was not our place. And yet it is very much our place, as people who know too well the pain of dispossession, discrimination and state-sponsored violence.

“We, as South Africans, will not be passive bystanders and watch the crimes that were visited upon us being perpetrated elsewhere. We stand on the side of freedom for all. We stand on the side of justice,” he said.

South Africa welcomed the measures that the court ordered by majority decision, ruling that the Israel military should not commit acts of genocide against Palestinians.

“This order is binding on Israel and must be respected by all states that are party to the Convention on the Prevention and Punishment of the Crime of Genocide,” Ramaphosa said.

https://youtu.be/q52nFu_jZZI

“We expect Israel, as a self-proclaimed democracy and a state that respects the rule of law, to abide by the measures handed down by the ICJ,” he said.

South Africa’s vindication by the ICJ in its ruling, Ramaphosa said, “marks an important first step in our quest to secure justice for the people of Gaza”.

“We will not waver in our commitment to the Palestinian people and their quest for self-determination. Our own painful history obliges us to do no less. We thank the International Court of Justice for upholding its role of achieving justice, promoting peace, preventing genocide and holding those guilty of genocide accountable.”

Read more in Daily Maverick: No ceasefire, but SA wins substantive rights measures in the Gaza genocide case

On 11 January 2024, South Africa’s top legal team at The Hague argued that Israel has genocidal intent in Palestine, and requested the court to order several provisional measures to end the carnage. These measures included suspending military action; opening humanitarian corridors to allow access to adequate food, water, fuel, hygiene and sanitation; and allowing the free and safe birth of Palestinian babies.

Read more in Daily Maverick: ‘Nothing will stop this suffering, except an order from this court’ – SA sets out the evidence against Israel

Israel’s legal team responded on 12 January, arguing that South Africa empties the word “genocide” of its unique force and meaning. Israel’s lawyers asked the ICJ to throw out South Africa’s “curated and inaccurate” case.

On Friday, the World Court rejected Israel’s bid to throw out South Africa’s genocide case.

While the ICJ stopped short of ordering a ceasefire, it has ordered Israel to not commit genocide in its military operation in Gaza, to allow humanitarian aid into the enclave, to preserve evidence and to report back to the court by 26 February on its progress.

Israel’s bombardment of Gaza has destroyed most of Gaza City, and by 26 January had killed more than 26,000 people and wounded more than 60,000, according to Gaza’s health ministry.

Responding to the ICJ’s ruling, Palestinian Minister of Foreign Affairs, Riyadh Maliki, said that Palestine welcomed the provisional measures ordered by the court.

President Cyril Ramaphosa, left, and the Deputy Ambassador of Palestine, Bassam Elhussiny, react as they watch the International Court of Justice ruling on the emergency measures requested by South Africa against Israel over its war on the Gaza Strip, in Johannesburg on 26 January 2024. The ICJ ruled that Israel must take steps to prevent acts of genocide in Gaza but stopped short of ordering a ceasefire and has not ruled on the merits of the genocide allegations. (Photo: Alaister Russell / EPA-EFE )

“We call on all states to ensure that all provisional measures ordered by the court are implemented, including by Israel, the occupying power … States now have clear legal obligations to stop Israel’s genocidal war on the Palestinian people in Gaza and to make sure that they are not complicit.

“The ICJ order is an important reminder that no state is above the law. It should serve as a wake-up call for Israel and actors who enabled its entrenched impunity,” he said.

On the decision of the ICJ, Israeli Prime Minister Benjamin Netanyahu reiterated that “Israel has an inherent right to defend itself”.

“Israel’s commitment to international law is unwavering. Equally unwavering is our sacred commitment to continue to defend our country and defend our people.

“The vile attempt to deny Israel this fundamental right is blatant discrimination against the Jewish state, and it was justly rejected. The charge of genocide levelled against Israel is not only false, it’s outrageous, and decent people everywhere should reject it,” Netenyahu said.

‘Landmark decision’

Speaking to Daily Maverick after the ICJ ruling, the former director of the New York Office of the High Commissioner for Human Rights (OHCHR), Craig Mokhiber, described the court’s decision as “historic”.

Mokhiber, who is a human rights lawyer with more than three decades of experience in the field, resigned from the organisation in November 2023, protesting that the United Nations was “failing” in its duty to prevent what he described was a “textbook case of genocide” unfolding in Gaza.

Pro-Israel supporters march towards the International Court of Justice during the court ruling in The Hague, Netherlands, on Friday, Jan. 26, 2024. At the end of December, South Africa accused Israel in the ICJ of committing genocide in Gaza, a charge vigorously denied by the Israeli government. Photographer: Ksenia Kuleshova/Bloomberg via Getty Images

“After the failure of so many international institutions to act appropriately to stop the genocide, this was in a sense, the final appeal of the international system that South Africa brought to the World Court … The ICJ has ruled on provisional measures and has ordered Israel to immediately stop the killings and the harming of people in Gaza; inflicting conditions designed to bring about their destruction; to punish incitement; to allow humanitarian aid; to save evidence; and they’re under the supervision of the court – they have to report back within a month,” Mokhiber said.

“That is extraordinary and historic.”

Mokhiber said, while it was not a ceasefire, the ICJ had “rejected every argument made by Israel”. He said Israel would likely continue its genocidal acts by claiming military necessity, and the mandated report to the court next month was crucial because of this.

Associate international justice director at Human Rights Watch, Balkees Jarrah, called the World Court’s ruling a “landmark decision”, which was in “recognition of the dire situation in Gaza, where civilians face starvation and are being killed daily at levels unprecedented in the recent history of Israel and Palestine”.

“The court’s clear and binding orders raise the stakes for Israel’s allies to back up their stated commitment to a global rules-based order by helping ensure compliance with this watershed ruling.”

The founder of the South African humanitarian organisation Gift of the Givers, Imtiaz Sooliman, said in a statement: “There is hope for humanity.

“We may not have achieved a ceasefire, but the conditions laid down by the court cannot practically be implemented without a ceasefire or a substantial reduction in hostilities,” he said.

Responses from political quarters

The DA – after previously facing both internal and external contestation over its stance on Israel’s assault on Gaza and its refusal to call clearly for a ceasefire – said it “welcomed the ICJ’s swift pronouncement on provisional measures”.

The party’s spokesperson on international relations, Emma Powell, said the DA mourned the loss of innocent life and “urged the court to move swiftly in determining whether or not the substantive arguments brought by South Africa in respect of the accusation of genocide have merit in international law”.

Read more in Daily Maverick: Party divisions on SA genocide case against Israel – newbies Change Starts Now, Rise Mzansi in support, Maimane’s Bosa says it’s a ‘misstep’

“The time has come for the international community to recommit towards building lasting peace in the region.

“To make peace possible, the DA calls for: Israel to abide by the ICJ’s ruling to avoid and prevent genocide; the Israeli Prime Minister to immediately recommit to a negotiated two-state solution; all civilian hostages kidnapped on and after 7 October to be returned; Hamas to disarm; and fresh elections to be held in Palestine under the auspices of the Palestinian Authority,” Powell said.

Read more in Daily Maverick: Ghaleb Cachalia quits DA over Gaza, spits fire at wider party issues

The Good party’s Brett Herron called on Israel’s powerful friends in the Global North” to take responsibility for enforcing the interim measures the ICJ has ordered Israel to urgently implement to reduce the suffering in Palestine.

“If these friends, led by the United States – which has used its veto power at the United Nations to block resolutions calling for a ceasefire – don’t pressurise Israel to comply with the ruling of the United Nations court, they will place themselves in the same immoral league as Russia, which ignored the court’s ruling in respect of its war on Ukraine,” Herron said.

The Good party commended the South African government for taking steps to intervene in Israel’s destruction of Palestine.

After decades of violations of international law, land occupations and the implementation of what many regard as apartheid policies to subdue Palestinian aspirations for justice and equality, Herron said this was the world’s first-ever official finding of fault by the State of Israel.

The EFF welcomed the ICJ ruling – describing it as “nothing short of remarkable” – but said it remained “disconcerting that the court refrained from mandating Israel to cease its military operations in Gaza and implement an immediate ceasefire.”

The EFF's Statement on South Africa's Successful ICJ Application for Emergency Measures in Gaza in Genocide Case Against Israel

-Consequently, the ICJ has ordered Israel to take all actions within its power to avoid the commission of the acts that fall within the provisions of… pic.twitter.com/AGYXejO5mZ

— Economic Freedom Fighters (@EFFSouthAfrica) January 26, 2024

SAJBD and Zionist Federation

Both the South African Jewish Board of Deputies (SAJBD) and the South African Zionist Federation (SAZF) have rejected ongoing calls for a ceasefire and stated that the ruling was a “devastating blow to ANC government” with the court “denying the ANC government’s request for a ceasefire”.

The SAJBD said the court’s call for the hostages to be freed was a fundamental requirement for the end of the conflict, and that “it is regrettable that the SA government did not put pressure on Hamas to release the hostages from the outset”.

The entities criticised the government for not playing a more constructive role in engaging both sides – “as they have in every other conflict to help to bring an actual end to this war”, according to the SAJBD.

The SAZF said that the court’s decision highlighted “a misguided effort by the ANC, showing a lack of understanding of the Israel-Hamas conflict”. DM

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‘Landmark decision’

Responses from political quarters

SAJBD and Zionist Federation