South Africa’s indictment of Israel under the genocide convention is moral, and politically bold

Global media interest in South Africa’s International Court of Justice (ICJ) case against Israel for possible genocide in Gaza was no surprise. The more long-term political, national identity and inter-state issues - considered by this essay - were of less immediate concern than the humanitarian crisis that featured in last week’s debate in the Hague.

Courageous journalists and officials of international relief organisations and the United Nations have been warning of a humanitarian catastrophe for many weeks. They were quoted extensively by South Africa’s legal team in an 84-page pre-hearing published brief and orally in court. Israel did not issue a brief before the 11-12 January 2024 hearing, but their presentations on the second day were widely and fairly reported, including in South Africa.

Under the terms of the Convention on the Prevention and Punishment of Genocide, SA maintained that genocide was at least “plausible” and the ICJ should as a matter of great urgency order “conditional measures” including the suspension of Israel’s military operations to prevent a humanitarian and human rights catastrophe.

Israel denigrated SA’s claims and demanded conditional measures be refused and the case dismissed as beyond the court’s jurisdiction and not “plausibly” genocide. The court’s president promised a decision “as soon as possible”, presumably in a few weeks, if not sooner. The court could approve all, some, or none of SA’s request for six immediate measures to restrain Israel, but a definitive ruling on the merits of South Africa’s case could take years.

Before speculating about the immediate political forces that may be swirling around the deliberations of the 15 ICJ judges from a diversity of nations, a brief reference to the evolving national identities of South Africa and Israel adds context.

That post-apartheid liberal-democratic South Africa chose to bring this case against Israel adds a poignant contrast, as SA had sought a civil solution to its social divisions, while Israelis and Palestinians have engaged in escalating deadly conflict.

Israel’s lawyers contend that a nation whose birth was a result of the genocide that killed some six million Jews — and the 1948 Genocide Convention seeks to prevent a repeat — would never violate that treaty. If SA’s request prevails, however, this would affirm a new degree of accountability to international law which even Israel cannot avoid.

Historically, both nations were settled by Europeans and imbued with similar sectarian national identities. But these were not primarily the “ethnic nationalisms” that became predominant in 20th-century Europe and that Michael Ignatieff describes in Blood and Belonging.

These two colonial nations acquired slightly more diverse identities — white nationalism in South Africa and Zionist religious nationalism in Israel. Both settler nations claimed to be liberal democracies. Those whose land was taken were restricted to “homelands” and other variations of apartheid.

South Africa’s 20th-century history is documented from a black perspective by historian Thula Simpson. Former Deputy Mayor of Jerusalem, Meron Benvenisti writes about the Israeli version of nationalism and apartheid in his 2021 monograph, “A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution”.

And Israel and South Africa are among the case studies in Mahmood Mamdani’s Neither Settler nor Native: The Making and Unmaking of Permanent Minorities.

A question of alignment?