Adv. Tembeka Ngcukaitobi delves into SA’s case against Israel at ICJ

Robben Island Museum hosted its Human Rights Lecture, delivered by SC Tembeka Ngcukaitobi. Picture: Ayanda Ndamane / Independent Newspapers

Robben Island Museum hosted its Human Rights Lecture, delivered by SC Tembeka Ngcukaitobi. Picture: Ayanda Ndamane / Independent Newspapers

Published Mar 23, 2024


Cape Town - The Robben Island Museum (RIM) hosted its Human Rights Lecture, with this year’s theme “Robben Island Museum and the Human Rights discourse in the face of global conflict”.

The keynote address was delivered by Senior Counsel Tembeka Ngcukaitobi at the Nelson Mandela Gateway Auditorium, Clock Tower, V&A Waterfront, on Wednesday evening.

The Human Rights Lecture forms part of RIM’s public programme and sought to shed light on human rights in the country and globally.

Ngcukaitobi formed part of the legal team who represented South Africa in the case at the International Court of Justice (ICJ) in January, in which South Africa accused Israel of contravening the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).

Ngcukaitobi delved into the context prior to South Africa’s apartheid case related to its practices in South West Africa (now Namibia) at the ICJ and the ongoing genocide case brought forth by South Africa against Israel.

He started with a reference to Alfred Bitini Xuma, former president of the ANC, and how Xuma laid the foundations for human rights in South Africa and the world.

Ethiopia and Liberia brought a case against the Union of South Africa on 4 November 1960, at the newly-established ICJ, under the Mandate System.

General Jan Smuts secured South Africa’s mandate over the German territory of South-West Africa. The merits of the case were only decided in 1966 after “many stops and starts”, Ngcukaitobi said.

“Before the ICJ, South Africa placed jurisdictional hurdles in the way, arguing that neither Liberia nor Ethiopia had any specific interest on whether or not South Africa is in violation of its obligation under the Mandate provisions.”

This argument was recently heard in relation to South Africa’s lawsuit against Israel.

“Technical as the argument sounds, it was successful. In its ruling the court found that Ethiopia and Liberia could not prove ‘a legal right or interest in the subject matter of its claim’,” Ngcukaitobi said.

With the votes equally divided, the president’s casting vote, the ICJ rejected claims of Ethiopia and Liberia.

Despite the disappointment of 1966, the ICJ remains the site for international justice, he added.

“That case is ongoing. But a central submission made by South Africa goes back to (Alfred Bitini) Xuma’s idea: self-determination is a first order human right. For South Africans and for the Palestinians.

“The permanent occupation and the conduct of Israel as an occupying force conflicts with the principles of international law.”

Ngcukaitobi said the courts should be looked at as an institution of legal and moral authority, with the question that should be posed as to whether the ICJ has affirmed its place as a “forum of international justice”.

“Political actors inside and outside a court of law will try to delegitimise it, when it delivers an unpopular outcome. We should also recall that law is not an end. It is part of a larger political repertoire.”

Responding to a question from the audience, Ngcukaitobi said a veto, as part of international law, does not serve any legitimate goal.

“The Palestinian question has shown why the veto should end because it means that a country like the United States can stop the march towards peace simply by exercising their veto.”

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