/ 15 January 2024

South Africa emerges as a champion of human rights

Palestine Supporters Demonstrate In Front Of The International Court Of Justice In The Hague
Although the urgency of addressing the Gaza conflict rightfully commands our focus, it important not to lose sight of the enduring effect of neoliberal colonialism, the remnants of apartheid, and contemporary socio-political dynamics that contribute to the slow genocide of the black African majority in South Africa. (Photo by Dursun Aydemir/Anadolu via Getty Images)

The compelling legal action initiated by South Africa against Israel at the International Court of Justice (ICJ) under the Genocide Convention serves as a jolting awakening for numerous Western governments and media platforms that previously endorsed Israel’s brutal conflict. South Africa’s legal pursuit signifies a pivotal moment, resonating the narrative of Gaza and the Palestinians, breaking through layers of propaganda and ambiguity. 

Since 7 October last year, this marks a singular occasion where the Gaza story is vividly recounted through official channels, offering a poignant and overwhelming perspective that demands contemplation. The past three months have been marked by a disturbing indifference to the lives of Palestinian civilians. An estimated 23 500 Palestinians are reported to have been killed since Hamas attacked Israel on 7 October and killed 1 100 people and kidnapped some 240 others. 

The Gaza Strip has experienced a shortage of resources since, with hospitals, schools and mosques subject to airstrikes, and limited international aid coming into the enclave. Biased and one-sided narratives have allowed too many in Europe and North America to turn a blind eye or worse, to rationalise complicity in what South Africa contends is genocide, whether through diplomatic backing or arms provision to Israel. South

Africa’s legal action has effectively dismantled these false narratives. Unlike those who feigned ignorance, framing the events of 7 October  as an external attack with Palestinian groups crossing a sovereign border, South Africa underscored the broader context: the ongoing denial of self-determination and the refugees’ right to return. This legal challenge shatters the illusions that shielded many from the harsh reality of the situation.

Despite Israel’s denial, Gaza remains effectively occupied due to Israel’s control over the territory. South Africa contends that Israel has employed starvation as a method of warfare against the impoverished enclave, enduring four disproportionately severe onslaughts since 2000. By characterising Israel’s governance over Palestinians as apartheid, South Africa draws on historical parallels and echoes findings from human rights organisations and UN experts. Reports by Amnesty International and Human Rights Watch extensively detail Israel’s apartheid system, involving domination, segregation, and institutionalised discrimination against all Palestinians. 

But, by upholding Israel as a democracy, too many politicians and commentators feign ignorance of these apartheid revelations. South Africa’s stance challenges this narrative, urging a reconsideration of the facts obscured by political posturing and diplomatic rhetoric. The claim that Gaza remains occupied, with the siege as part of an apartheid system, poses a challenge to Israel’s self-defence narrative. South Africa contends that self-defence does not justify genocide. States cannot employ genocide or apartheid under the guise of security. The argument reframes the discourse around Israel’s actions, emphasising accountability and human rights over security narratives. 

This shift questions the international community’s approach, urging a reconsideration of the justifications used by nations in conflict, especially when confronted with allegations of severe human rights violations. The dismissal of genocide charges against Israel’s actions in Gaza by many in the West is fuelled by a media narrative that conveniently ignores inflammatory Israeli statements. South Africa, however, has brought attention to these statements, emphasising a “distinctive feature”; in the case — overwhelming evidence of genocidal intent and incitement to genocide. 

This contrasts with the dismissive attitude prevalent in the West, where Israeli lawmakers continued to make genocidal statements even in the days leading up to The Hague hearing, seemingly unaffected by the impending legal proceedings. The case underscores the importance of confronting and addressing inflammatory rhetoric and actions, shedding light on a narrative that has been overlooked or downplayed in certain quarters. It comes as no surprise that proponents of Israel are seeking to downplay South Africa’s case. But individuals with a moral compass should anticipate and insist on judicial intervention to safeguard Palestinian lives.

The United Nations’ grim assessment, mere days before the court hearing, painted a dire picture of Gaza, home to 2.3 million people, now deemed “uninhabitable”. The risks of famine and diseases present a horrifying prospect, with the potential for a significant increase in casualties, underscoring the urgency for immediate judicial action. In Gaza, countless men, women, and children face the harsh reality that this intervention may come too late for them. 

As articulated by Blinne Ní Ghrálaigh, the formidable Irish lawyer representing South Africa, the paramount concern is the potential to save numerous lives. The continuation of Israeli military operations ensures the relentless decimation of Gaza and the ongoing suffering of the Palestinian people. Ní Ghrálaigh emphasised in the hearing that failure by the court to intervene would constitute a departure from its own precedent and, more significantly, tarnish the reputation of international law. The court is now presented with a pivotal challenge, and its response will be a testament to its commitment to justice and the protection of human lives.

The Organisation of Islamic Countries, comprising 57 nations, alongside numerous other countries, such as Bolivia, Colombia and Brazil, has expressed endorsement for the case. In contrast, the United States and Germany have registered their dissent. But the backing for South Africa is gaining substantial momentum.

The current stage of the case involves provisional measures, implying that South Africa is not seeking a definitive ruling from the court on whether Israel is committing genocide. Instead, South Africa is urging the ICJ to issue an order akin to a preliminary injunction in a US court, aiming to “preserve the status”. South Africa’s specific requests include a cessation of all military attacks violating the Genocide Convention, an end to causing harm to Palestinian people in Gaza, and the facilitation of humanitarian aid delivery by Israel. 

The ICJ holds the authority to either grant all of South Africa’s requests or issue specific orders. Whether the court rules in favour of South Africa or not, the provisional measures would be of a temporary nature. Judges will then deliberate on whether the case should progress to the merits phase, sparking a comprehensive trial between South Africa and Israel where the court would ultimately determine if Israel committed genocide — an decision that could take years. 

While the ICJ’s orders carry legal weight, experts caution that the court lacks the power to enforce compliance. Enforcement typically relies on public pressure, as defiance tarnishes a country’s reputation, given the ICJ’s prestige. Although the UN Security Council holds authority for enforcement, the veto power of nations such as the US and Russia shields them and their allies from mandates. The UN General Assembly might issue a resolution for enforcement, but sceptics argue that even this action could be disregarded. 

The intricate web of international legal dynamics underscores the complexities surrounding the potential aftermath of an ICJ decision. Regardless of the outcome of the case, South Africa has undoubtedly emerged as a champion of human rights and global leader of the anti-apartheid campaign.

Dr Imran Khalid is a freelance columnist on international affairs based in Karachi, Pakistan. He qualified as a physician from Dow Medical University in 1991 and has a master’s degree in international relations from Karachi University.