/ 8 January 2024

Justice at the world court

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People search through buildings that were destroyed during Israeli air raids in the southern Gaza Strip on November 5, 2023 in Khan Yunis, Gaza. (Photo by Ahmad Hasaballah/Getty Images)

A little under 60 years ago, Dr. Martin Luther King Jr insisted that “the arc of the moral universe is long, but it bends towards justice”. For Palestinians, like black South Africans and ‘South West Africans’ before them, that arc seems especially long. 

A little over 60 years before King immortalised these words, Germany’s General von Trotha issued the extermination order that began the first genocide of the 20th century, committed against the Nama and Herero peoples of South West Africa, which served as a model for those to come. 

It took almost three decades for King’s promise to materialise, formally at least, when the peoples of South Africa and South West Africa obtained freedom from apartheid and colonialism in the 1990s. Their fates had been entwined in the aftermath of World War I, when white-settler South Africa was granted a ‘civilisational’ mandate over South West Africa by the League of Nations, whose people were declared ‘not yet able to stand by themselves under the strenuous conditions of the modern world’. 

The people of Palestine await their freedom, freedom deferred — initially at first — by the same ‘civilisational’ arrogation of their fate, this time to the British, who had already promised their land to European Zionists as ‘a national home for the Jewish people’. 

Since then, Palestinian’s right to self-determination has effectively been denied by the most powerful states in the ‘international community’ (notwithstanding the fact that an overwhelming majority of its members have recognised the State of Palestine). All the while, Palestinian land has been further diminished by Israeli annexation and settler expansion, and they have been subject to the grotesque and quotidian violence that accompanies prolonged occupation, apartheid and in recent months a vengeful bombardment and siege, one that has scorched the earth of Gaza.

For much of its history, International Law has been on the wrong side of this moral arc. Shortly after King gave his speech, the International Court of Justice (ICJ, or World Court) dismissed a case collectively brought against apartheid South Africa by newly independent African states, which resulted in them all but giving up on International Law and the World Court. 

As one African delegate to the UN declared at the time, the 1966 South West Africa decision was “as great a blow to international law … as it was to liberty and human dignity”, while another declared the ICJ “guilty of the most shattering denial of justice in its history”. A decision which, warned another, “placed in question the very existence of the court”. 

African states had initially been enthusiastic about both International Law and the ICJ: in 1960, before most had formally obtained independence, they decided to bring the case — in the name of Liberia and Ethiopia — condemning the implementation of apartheid in South West Africa (and, by implication, South Africa) as a violation of International Law. 

They did so, one diplomat lamented in 1966, “believ[ing] in the acceptance of the Court as an instrument for the maintenance of international law, and believ[ing] that we should seek to improve rather than destroy it”. 

The case got off to a decent start with a favourable decision in 1962, however in 1966 the Court scandalously revisited and reversed its preliminary decision, rejecting the claim on that basis that neither Liberia nor Ethiopia had a ‘legal right or interest’ in the matter. This was a reversal, it turned out, engineered through the fraud and collusion of the ICJ’s old guard of white judges.

As a result of the Court “abdicat[ing] its responsibility and … tak[ing] refuge in technicalities”, African states turned to the General Assembly for a political solution to the problem of apartheid, unable to secure a legal determination by the ICJ condemning apartheid that, amongst other things, would have triggered concrete action from the Security Council that the double-speaking UK and US would have found difficult to veto. 

Despite their best efforts, it took almost three decades for apartheid to fall — decades of systematic violence, oppression and injustice.

This history makes the decision of democratic South Africa to return to The Hague, this time to bring a case against Israel alleging genocide in Gaza, all the more significant. There is already a pending case, brought by the General Assembly, seeking the Court’s ‘advice’ on the legal consequences of Israel’s “prolonged occupation, settlement and annexation of the Palestinian territory” and “its adoption of related discriminatory legislation and measures” (plainly put: apartheid). 

However South Africa’s recent application is significant for its form and content. It takes the form of a  “contentious’ claim by South Africa directly against Israel, one which accuses Israel of violating its obligations under the 1948 Genocide Convention by committing, condoning and failing to prevent and punish genocide, as well as failing to prevent and punish ‘direct and public incitement to genocide by senior Israeli officials and others”.

Genocide is a unique crime, a neologism that combines the Greek word for race or tribe (geno) with the Latin word for killing (cide), introduced by Polish lawyer Raphael Lemkin in 1943 to characterise Germany’s “practice of extermination of nations and ethnic groups” during World War II (including Jews, Poles and ‘Gypsies’). 

Genocide is a crime which the 1948 Genocide Convention, adopted in response to the horrors of the Holocaust, obliged its signatories to prevent and punish, including by bringing cases involving “the responsibility of a State for genocide” to the ICJ. A unique crime, but not an uncommon one historically. In fact, when Lemkin sat down to write a history of genocide — incomplete at the time of his death in 1959 — he set out examples of genocide from ‘Antiquity’, through the ‘Middles Ages’ to ‘Modern Times’. Lemkin’s first example of ‘Modern’ genocide was Germany’s extermination of the Herero and Nama in ‘South West Africa’. 

For Lemkin, genocide involved not only ‘mass killings’, but “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves”. 

South Africa’s 84-page ICJ application sets out such a plan on the part of senior Israeli officials, in chapter and (biblical) verse, with precision and in harrowing detail. A plan pursued through ‘genocidal acts’ undertaken, condoned and incited against Palestinians in Gaza, including killing, causing serious bodily harm, and inflicting conditions of life on them calculated to bring about their physical destruction. 

Acts committed with the requisite genocidal intent, expressed repeatedly by senior Israel politicians and military officials, of destroying a significant and substantial portion of Palestinians in Gaza and making it “impossible to live in”. The biblical message Prime Minister Benjamin Netanyahu has repeatedly sent his soldiers into Gaza with makes this genocidal intent plain: “Now go, attack Amalek, and proscribe all that belongs to him. Spare no one, but kill alike men and women, infants and sucklings, oxen and sheep, camels and asses”. 

In 1960 African states brought their case to the ICJ on the understanding that colonialism, apartheid and racial injustice were of special concern to them – legally, politically and morally – given their history. The ICJ first accepted, then later rejected, the legal basis for Liberia and Ethiopia’s claim, adding that “political, moral and humanitarian considerations [were] not in themselves generative of legal rights and obligations”. 

This same political, moral and humanitarian sentiment underpinned Nelson Mandela’s insistence that “our freedom is incomplete without the freedom of the Palestinians” and informs South Africa’s approach to the ICJ concerning genocide in Gaza. 

This time, however, South Africa is on (even) firmer legal ground: the Genocide Convention obliges states to prevent genocide and specifically provides that disputes between signatories, such as South Africa and Israel, concerning its ‘interpretation, application or fulfilment … including those relating to the responsibility of a State for genocide … shall be submitted to the [ICJ] at the request of any of the parties to the dispute’. 

There is reason to be optimistic about South Africa’s prospects of success. Last year the ICJ provisionally accepted a case brought by Ukraine against Russia under the very same provision of the Genocide Convention, but based on the creative interpretation of its terms. Ukraine successfully argued that, because Russia had accused it of committing genocide in the lead up to the 2022 invasion, there was ‘dispute’ between the two states regarding the Genocide Convention. The ICJ even went so far as to issue a preliminary order that Russia “shall immediately suspend [its] military operations … in the territory of Ukraine”.

South Africa, based on far firmer legal footing, has asked for precisely the same preliminary order to be made against Israel, pending the outcome of the case, namely: “The State of Israel shall immediately suspend its military operations in and against Gaza.” Ultimately, South Africa is seeking an order that Israel must desist from further acts of genocide and incitement to genocide, punish those already committed, ensure the preservation of evidence so that other Courts can do so as well, and make reparations to Palestinian victims.

The stakes could hardly be higher. The case offers the prospect of reprieve and some measure of justice for the besieged Palestinians in Gaza, most immediately in the form of preliminary order for a cessation of military operations. 

Like the South West Africa case, this is about more than just the present legal dispute. As in 1966, the ICJ has an opportunity to reconfigure the terms of a seemingly intractable conflict: one in which the majority of the General Assembly and the letter of International Law (as expressed in the ICJ’s own rulings) appear to support the ‘weaker’ side (then black South (West) Africans, today the people of Palestine), while the other side acts with growing impunity under the cover of Western support — both militarily and politically, including through deadlocking the Security Council. This time South Africa is on the right side of the case, and by bringing it South Africa has offered the ICJ the chance to place itself and International Law on the right side of Dr King’s moral arc. 

Christopher Gevers teaches international law at the University of KwaZulu-Natal.