SA’s genocide case against Israel reverberates on diplomatic front, with special resonance in Germany

Judges at the International Court of Justice assembled for the hearing of the genocide case against Israel brought by South Africa, in The Hauge, The Netherlands, on 11 January, 2024. (Photo: EPA-EFE / Remko De Waal)

By Peter Fabricius

25 Jan 2024

Germany has backed Israel against South Africa’s charges of genocide at the International Court of Justice, but a source close to the embassy says the case could lead to increased humanitarian aid.

South Africa has already experienced considerable diplomatic consequences from its decision to charge Israel with genocide at the International Court of Justice (ICJ).

It will no doubt experience more after the ICJ decides on Friday whether to order Israel to implement provisional measures – such as a ceasefire in Gaza or increased humanitarian aid – and also into the future of what is expected to be a long, drawn-out case.

https://www.youtube.com/watch?v=l4G55-Rcb34

Predictably, many countries of the Global South have heaped praise on South Africa for championing the Palestinian cause. Equally predictably – though more cautiously – several countries of the Global North have opposed SA’s case, none more so than the US, Israel’s staunchest strategic ally.

Its spokesperson, John Kirby, on 3 January called South Africa’s case “meritless, counterproductive, and completely without any basis in fact whatsoever” and supported Israel’s right to defend itself.

Possible ‘substantive’ humanitarian steps

Germany is in a unique position on this issue.

It was Nazi Germany’s Holocaust against European Jews that in 1948 inspired the adoption of the Genocide Convention which SA now alleges Israel is violating in Gaza.

As a result, Germany has become as steadfast an Israeli ally as the US.

And so on 12 January, Germany became the first country to announce that it would intervene in the ICJ case in support of Israel. It said it opposed the “political instrumentalisation” of the Genocide Convention and rejected the accusation of genocide that South Africa had made against Israel.

sa israel genocide germany Judges at the International Court of Justice assembled on 11 January 2024 for the hearing of the genocide case against Israel brought by South Africa, in The Hauge, The Netherlands. (Photo: EPA-EFE / Remko De Waal)

A source close to the German embassy in Pretoria acknowledged that this “is going to be a very difficult topic between our countries”.

“We don’t think there is genocidal intent, which is one of the crucial elements in the case, of course. So on that one, we dramatically differ from the legal position of South Africa.”

Read more in Daily Maverick: Pretoria believes ICJ will deliver riposte to US legislators who expressed ‘disgust’ at SA’s case against Israel

On the provisional measures the ICJ said it would announce on Friday, this source said the court decision “is probably not going to be clear-cut in favour of everything South Africa demanded.

“But a kind of a ceasefire, end of hostilities, access for humanitarian aid, that is not too far-fetched, I would say… at least things going in this direction… humanitarian, fire pauses, whatever.

“There may be quite substantive steps in that direction that the court may wish to see.”

But the source also expected the court to be “circumspect” because the Genocide Convention was one of the most important international legal instruments.

Read more in Daily Maverick: Israel-Palestine War

“Whichever way you want to go, it needs to be really watertight and considered very carefully.”

He also thought the court might call on Israel to restrain its politicians and other individuals in Israel from making remarks that might be interpreted as genocidal.

This would be a response to South Africa’s application to the ICJ which detailed many statements by Prime Minister Benjamin Netanyahu, President Isaac Herzog and other top government officials which appeared to encourage Israeli soldiers to attack not only Hamas, but all Palestinians in Gaza.

This source thought the ICJ would use provisional measures to try to calm the situation.

“It’s going to be problematic because whatever [they do] it’s going to be binding for Israel – but nobody can bind Hamas.”

Read more in Daily Maverick: ICJ likely to grant some of SA’s requested provisional measures in Gaza — experts

He said Germany had decided to intervene on Israel’s side “because obviously the Genocide Convention was adopted in the wake of the Holocaust perpetrated by Nazi Germany. So for us, it’s a very important convention. And for us, it’s a convention not to be played around with.

“So you need to look very carefully at its application. And you cannot just use it as an instrument to go for other things, for other political ends. So it’s very strong … and the substance of the convention needs to be protected so that it’s focusing on things that are genocide, rather than things some people may say are genocide.”

‘Some benefits’

Despite Germany’s fundamental difference with South Africa in this case, the source thought that South Africa taking Israel to court could produce some benefits “because it’s going to bring legal clarification in a situation where everyone is using mutually exclusive strong words and nobody is sure what the truth is”.

SA’s legal initiative also appeared to have already had some impact on Israel, for instance in prompting Netanyahu to clarify that Israel did not intend to displace the Palestinian population from Gaza.

However, our source also said it was clear that the SA government was using the case “as a mobilising topic for the election”.

Several other countries are expected to intervene in SA’s case against Israel on one side or the other.

Namibia censures Germany

Germany caught flak from another country for announcing its intervention against SA’s Israel case. Namibian President Hage Geingob said Berlin had still not fully atoned for committing genocide against tens of thousands of Namibians between 1904 and 1908 during its colonial occupation of the country.

“Germany cannot morally express commitment to the United Nations convention against genocide, including atonement for the genocide in Namibia, whilst supporting the equivalent of a holocaust and genocide in Gaza,” Geingob thundered.

The German source said that his government’s spokesperson had unfortunately announced Germany’s intervention in the ICJ on behalf of Israel on 12 January, which is the day that officially commemorates the genocide in Namibia.

That had provoked Namibia more than it might otherwise have done. Nevertheless, Germany’s embassy in Windhoek continued to work on that issue.

“It’s an ongoing process with Namibia because we have been talking about these events with the Namibians for a long time.

“We made an apology. We were also talking about a settlement, not involving recompensation but also involving financial aspects.”

Those talks had been interrupted by Covid but had recently resumed.

“It’s an ongoing process we have with Namibia to come to terms with that dark aspect of our past. So that is intertwined a little bit now.” DM

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Possible ‘substantive’ humanitarian steps

‘Some benefits’

Namibia censures Germany