Legal experts debate usefulness of SA’s ICJ case

Numerous Middle East experts see South Africa’s involvement in Israel’s affairs – going so far as to accuse the Jewish state of genocide at the International Court of Justice (ICJ) – as doing more harm than good.

Palestinian American humanitarian activist Ahmed Fouad Alkhatib explained at the African Global Dialogue Conference on 19 September that the comparisons between Israel and apartheid South Africa are facile.

“South Africa has been invoked in the most unhelpful of ways,” Alkhatib said, “It is an unhelpful comparison that misdirects people.”

However, local human rights lawyer Nicole Fritz said she believes South Africa took Israel to the ICJ because it has positioned itself as a champion of international humanitarian rights.

“We saw the South African government become a signatory to the Genocide Convention in 1998,” said Fritz. “It was one of the key players in securing endorsement and support for the International Criminal Court (ICC). It was key in securing Africa as the largest regional bloc to sign up and support the Rome Statute for the International Criminal Court.”

Fritz said South Africa has a controversial history in terms of abiding by international humanitarian law. In 2017, South Africa disregarded an ICC order set for the arrest of Sudan’s Omar al-Bashir, who was accused of genocide and war crimes, and facilitated a flight for him to escape arrest. Similarly, in September 2023, South Africa invited Russian President Vladimir Putin, who is accused of war crimes by the ICC, to attend the BRICS summit in this country.

Fritz continued that South Africa taking Israel to the ICJ could potentially be read as “a resuscitation of the responsibility to protect international humanitarian law”.

She went on to say, “The responsibility to protect was never intended to justify military intervention. It arose in recognition of the glaring failures of our international human rights system to do anything without intervention.”

Fritz said that South Africa acted against Israel out of sympathy for the people in Gaza because they are particularly vulnerable, not having a state they can appeal to for protection”.

Former President of the ICC from 2018 to 2021, Chile Eboe-Osuji said it was important to let the ICJ judges do their jobs and make their decision, whatever that may be.

Milŏs Hrnjaz, Associate Professor of International Law at the University of Belgrade, said, “One thing you can see in the proceedings before the ICJ is that this is an opportunity to speak to the international community about the facts.”

Furthermore, Israeli scholar of humanitarian law and human rights, and holder of the Hersch Lauterpacht Chair in Public International Law at Hebrew University in Jerusalem, Yuval Shany said that while international humanitarian law seeks to justify wrongs in the world, it does not wish to and cannot start and end wars.

“The goal of international humanitarian law as a project is to try to minimise the suffering, to try to minimise the harm, to try to, to some extent, regulate the violence. Which means to regulate the means and methods for the weapons which are used and to identify certain individuals and groups of individuals that deserve protection,” Shany said.

Commissioner of the International Commission of Jurists since 2013 and Professor of International Law at the University of Geneva, Marco Sassòli explained that international humanitarian law dictates a responsibility to protect all civilians and that violations of that responsibility by one side do not justify violations by another.

Shany continued to say that, while he believes international humanitarian law does not have any magic solutions, he does have scepticism regarding South Africa’s case against Israel at the ICJ in terms of promoting peace in the area.

Shany and Sassòli share doubts about whether the correct legal framework has been used. As Shany said, “When you ask the wrong legal question, you are inevitably likely to obtain the wrong legal answer.”

So Shany is reluctant to let the ICJ decide because the South African legal team “cited the wrong provision of the law just to get to the court”.

He further said, “The intervention of a third party – like South Africa – in such a conflict may be doing more harm than good. When you have two parties and each of them is fully convinced that they have the whole truth and justice on their side, when third parties are encouraging this narrative they might exacerbate the conflict and not help the parties get down from the very high trees that they have climbed.”

Sassòli explained, “It is true that there is peaceful change, there is the possibility you must adjust. And while international law is inevitably very conservative, one problem is that if Israel is convinced that it is right and the Palestinians are also convinced that they are right, and will not give in to any demands, there is little chance for peace.”