‘Genocide’: Ball now in ICJ’s court

Justice Minister Ronald Lamola address the media outside the International Court of Justice (ICJ) in The Hauge, in the Netherlands following the first day of the hearing of the genocide case against Israel. Israel is expected to defend itself against the allegations. Picture: Remko De Waal/ EPA

Justice Minister Ronald Lamola address the media outside the International Court of Justice (ICJ) in The Hauge, in the Netherlands following the first day of the hearing of the genocide case against Israel. Israel is expected to defend itself against the allegations. Picture: Remko De Waal/ EPA

Published Jan 15, 2024


As the South African legal team that presented a landmark case against Israel before the International Court of Justice (ICJ) received a resounding welcome when they arrived home on Sunday, it was abundantly clear that the case for genocide had been made beyond any shadow of reasonable doubt, said one expert.

After having read the court papers the South African government submitted to the ICJ and listening to the verbal submissions South Africa’s legal agents made to the court as well as the rebuttals of the state of Israel, Unisa lecturer in the department of jurisprudence, Mametlwe Sebei, said: “On the other side, Israel has failed to rebut any of these facts, legal arguments and claims.

That is primarily because they are in an impossible situation.

The logic of the whole Zionist settler colonialism, and the extreme right-wing populism of the current regime means that the whole political establishment, military and bureaucratic apparatus of the state has incriminated itself at one point or the other.

“The US has to incriminate Israel despite its own feigning of contempt for South Africa’s allegations of genocide. If there was no intent to ethnically cleanse Gaza of Palestinians, why would the US issue statements rejecting any plans to evict Palestinians.

“The intent to ethnically cleanse Gaza, which the US denounces and therefore admits its presence, alone and independent of all other facts, meets the thresholds for the case of genocide SA made before ICJ.

“The mass killings, and destruction of houses, hospitals, schools, churches and mosques, deprivation of water, food, electricity, internet and all other facts SA placed before the court are only a manifestation of this genocidal intent.

“They are not essential for an interim order to prevent genocide that SA is asking. The case for genocide has therefore been made by Israelis themselves more than anybody else. The verdict is out. It is damning, clear and unequivocal in law: the state of Israel is guilty as charged. This is recognised by all law-abiding and honest citizens of the world, not only faithful scholars of law.”

Sebei’s remarks came as Israeli Prime Minister Benjamin Netanyahu made what appeared to be a pre-emptive statement on Sunday. “No one will stop us –not The Hague, not the Axis of Evil and no one else,” he said, referring to the Iran-aligned “axis of resistance” groups in Lebanon, Syria, Iraq and Yemen.

In its case, South Africa accuses Israel of violating the UN Genocide Convention and wants the ICJ to put provisional measures to protect Palestinians under attack in Gaza from the irreparable prejudice caused by Israel’s action.

Pressure is also mounting on Israel’s ally, the US, after at least 40 South African lawyers, led by Gqeberha-based law firm Wikus van Rensburg Attorneys, were turning their attention to the US government for its role in the Israel/Palestine conflict.

In a statement on the ICJ case, US Department of State spokesperson Matthew Miller said allegations that Israel was committing genocide were “unfounded”.

“Genocide is one of the most heinous acts any entity or individual can commit, and such allegations should only be made with the greatest of care. Israel has the right to defend itself against Hamas’s terrorist acts – acts that Hamas has vowed to repeat again and again until Israel is completely destroyed.

“Israel is operating in an exceptionally challenging environment in Gaza, an urban battlespace where Hamas intentionally embeds itself with and hides behind civilians.

“We have also made clear Israel must not only comply with international humanitarian law in its operations against Hamas, but also look for more ways to prevent civilian harm and to investigate credible allegations of violations of international humanitarian law when they arise.

“Finally, we continue to condemn dehumanising rhetoric on all sides.”

In their notice of intention to hold the US “liable and complicit for the ongoing international crimes” perpetrated in Israel/Palestine against the Palestinian people, the lawyers centred their argument around the Balfour Declaration.

This, they said, had become “the catalyst and vehicle for the Zionist aim of establishing a Jewish state in Palestine into a reality with the British and US governments’ public pledge to establish ‘a national home for Jewish people’ there”.

“With the benefit of time, history has shown that the British and US governments have certainly used ‘their best endeavours to facilitate the achievement of this objective, being the current Jewish state of Israel, but certainly did little to nothing to ensure that “nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine”, given the historical, ongoing and current international war crimes committed by Israel and its armed forces against the innocent Palestinian people.

“US policy and international law require that (American) weapons transferred to foreign governments, including Israel, are used in a manner consistent with protecting civilian lives.

“The world’s top international human rights organisations, including US and UK-based Amnesty International and Human Rights Watch, have conducted and presented in-depth legal analysis over the past several years that has found that the Israeli government is committing the crimes of apartheid and persecution as per the legal definitions in international law.

“We hereby place the Government of the United States of America (’the US Government’) on notice that we intend to bring legal proceedings against the US government based on overwhelming evidence that the US government has, and is, aiding, abetting and supporting, encouraging or providing material assistance and means to Israel and the Israel Defense Forces (IDF).

“This conduct by the US government has enabled and continues to enable Israel to engage in international crimes against the Palestinian people.”

Director of the School of Public Leadership (SPL) at Stellenbosch University Professor Zwelinzima Ndevu said: “At a governance level the continuous support (financial and otherwise) of Israel by the US makes the Biden administration partly responsible for the alleged war crimes by association. This means accountability, transparency for their role or contribution as an enabling party in the human rights violations.”

The Palestinian Ministry of Foreign Affairs and Expatriates said it owed South Africa “a debt of gratitude” because it took this step.

“The voices of millions upon millions of people who have taken to the streets around the world are echoed in South Africa’s legal action.

“And the Palestinian people, in Gaza and beyond, draw hope from the affirmation that humanity, moral courage and consistency can prevail over racism, warmongering, and double standards, that there is political, legal and moral conviction to stand and act against genocide.

“This is a legal case, not a political one.

“The law must be measured by which this grave matter is judged, not hateful, biased spin steeped in racism, supremacy and double standards.

Attempts to sabotage or overrun these historic proceedings by politicisation and weaponised rhetoric must be unequivocally rejected and exposed.

“The State of Palestine trusts that the International Court of Justice, which is the highest court in the world, will defend its independence and meet its noble obligations to uphold the law and confront impunity.”

Cape Times