South Africa’s disgraceful diregard for international humanitarian law in the ICJ

The Republic of South Africa under the ruling party of the African National Congress (ANC) has filed a dispute against Israel at the International Court of Justice claiming Israel is committing acts of genocide against the Palestinians. The application was signed on 28 December 2023. It urgently seeks what is called in ICJ speak “indication of provisional measures,” an interim or temporary ruling pending the full hearing of the dispute, before the merits of the case are actually considered. This is a very drastic procedure as the court does not need to be satisfied by proof at this stage that genocide is actually being committed. The court is called upon to “order Israel to cease killing and causing serious mental and bodily harm to Palestinian people in Gaza, to cease the deliberate infliction of conditions of life calculated to bring about their physical destruction as a group, to prevent and punish direct and public incitement to genocide….” This amounts to suspension of all military action by Israel in Gaza. Whether such a ruling is capable of enforcement is of course highly improbable but it serves to legitimize the efforts of Israel’s detractors to cast Israel as a violator of international humanitarian law.

The animus of the ANC against Israel is nothing new. Its recent track record speaks of withdrawing its ambassador from Tel Aviv in and issuing a note verbale against the Ambassador for the State of Israel in Pretoria and an advisory resolution of parliament to close the Israel Embassy in South Africa. The ANC has also warmly hosted representatives of Hamas. Dancing with the devil one may say.

No country outside the Middle East has shown more animosity against Israel than South Africa. It also needs to be said that South Africans of all races have historically expressed support and friendship with Israel and it is doubtful whether the misguided and morally debased support of the ANC for Hamas has much approval by the general populace. Historically the ANC has expressed solidarity with the Palestinians as in their view, they share a common experience of oppression and Apartheid. This bigoted view has become an obsession and an article of faith of South African foreign policy. Palestinian terrorism is swept under the carpet. The only violence and cause of conflict is apparently the “Israeli Occupation Army” and settler attacks.

The response of the ANC to the massacre of 7/10 was tepid. It stood with Palestine saying the actions of Hamas were “unsurprising” considering Israel’s continued occupation of Palestinian land. Only later it condemned the killing of civilians and called for restraint on both sides.

What business has South Africa with a war in the Middle East entitling it to go the ICJ in the first place? It is not a party to the conflict between Israel and Hamas and is also not a representative of the Palestinian people. The basis of the application by South Africa needs to be understood in terms of international law. It has approached the ICJ seeking to enforce an international treaty called the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 or simply “the Genocide Convention.” Both Israel and South Africa are signatories to this treaty which was enacted by the United Nations with the horrors of the Nazi Holocaust fresh in memory. The object of this treaty is to prevent and punish genocide. More importantly as will become clear below, the treaty imposes certain obligations on signatory states:

• to try persons charged with genocide in a competent tribunal of the State in the territory of which the act was committed, or by an international penal tribunal with accepted jurisdiction; and

• to grant extradition when genocide charges are involved, in accordance with laws and treaties in force

This opens a can of worms which the South African government would prefer to ignore. South Africa justifies its involvement as a party before the ICJ by reliance on a doctrine of international law called erga omnes partes which means an obligation owed “towards all parties.” This is a human rights tool used to hold a state accountable to any other state who is a party to the same obligation, being in this case, the genocide convention. Thus the role South Africa claims as a non-injured party is merely to uphold the genocide convention. This all sounds noble and honorable except that is from true.

The clanger is that South Africa has been found by its own Supreme Court of Appeal in the Bashir case. In a decision delivered on 16 March 2016, the government of South Africa was found to have violated the Rome Statute by failing to arrest and surrender Omar al Bashir under a warrant of arrest issued by the International Criminal Court (ICC). At that time, Al Bashir was the President of Sudan and had two charges against him from the Prosecutor of the ICC. Firstly war crimes and crimes against humanity and secondly a charge of genocide under the Rome statute. South Africa was a signatory. These charges related to atrocities committed by his supporters and the Janjaweed militia the during the Sudan conflict. In 2015, Al Bashir attended a conference of the African Union in South Africa and the South African authorities knowing full well of his ICC international arrest warrant allowed him to slip out of the country unhindered. In a scathing judgment, the court found the conduct of the authorities disgraceful.

South Africa simply and baldly ignored the international arrest warrant and thus violated the international Rome treaty establishing genocide as a crime. This conduct would fall foul of the provisions of the Genocide Convention which require signatory states to cooperate in bringing to justice persons accused of crimes against humanity and genocide in an internationally recognized court. Thus South Africa has not only certainly violated the Rome Statute – and also appears to have undermined the Genocide Convention.

It is an equitable principle of law, at least in Anglo American courts, if not universally, that a person may not seek assistance from a court to uphold an obligation of another party, if the person seeking assistance has violated the very same obligation. This is referred to as the doctrine of unclean hands. A state approaching the ICJ should do so in good faith, in other words with the intention of upholding international humanitarian law. This intention is betrayed by South Africa by its unlawful conduct as found by the Supreme Court of Appeal of South Africa. A more shabby and tarnished action by a state in an international law forum would be hard to find. Justice will surely prevail.