Mixed reactions to ICJ litigation should not deter South Africa - Prof Bheki Mngomezulu

Wheels of Justice in solidarity and support of South Africa's ICJ case for end to the genocide and justice for the Palestinian people.Based in The Hague the International Court of Justice will hold its first hearing in South Africa's genocide case against Israel. Picture: Ayanda Ndamane/ Independent Newspapers

Wheels of Justice in solidarity and support of South Africa's ICJ case for end to the genocide and justice for the Palestinian people.Based in The Hague the International Court of Justice will hold its first hearing in South Africa's genocide case against Israel. Picture: Ayanda Ndamane/ Independent Newspapers

Published Jan 14, 2024


Starting with Russia’s invasion of Ukraine in 2022, South Africa’s foreign policy has been put to the test. When the matter was tabled before the UN General Assembly, South Africa refused to pick a side – arguing that a diplomatic solution was the answer to the crisis, not punitive measures.

This was a principled position anchored on South Africa’s foreign policy, which is non-partisan and respects human rights. Through this position, South Africa demonstrated her political sovereignty.

However, this justifiable position landed South Africa into trouble with the Western community – especially the United States. The US’ threat to move the African Growth and Opportunity Act (AGOA) summit from South Africa to another location was triggered by this neutral stance the country took on the Russia/Ukraine war. Even calls for South Africa’s removal from AGOA were heard from the horizon.

Before this dust could settle down, Israel’s Prime Minister Benjamin Netanyahu authorised the invasion of Gaza – an event which has resulted in the deaths of thousands of people, including children and women.

Two schools of thought have since emerged.

One school advances the view that the invasion was justifiable. This view is premised on the belief that the invasion was an act of retaliation and defence since Hamas struck first on October 7, last year, when it killed an estimated 1,200 people and kidnapped about 240 more, taking them hostage.

Therefore, according to this school of thought, Israel did not violate any international laws. The invasion was justifiable since all countries have the right to defend themselves.

The second school places the blame squarely at the doorstep of Israel. According to this school, Benjamin Netanyahu and his associates have been instrumental in provoking Hamas.

The incidents cited to buttress this assertion include Israel’s control of the air space and the waters, occupying Palestinian land by force, moving Israel’s capital from Tel Aviv to Jerusalem, putting concrete on the stream channelling water to Palestine, among others.

These reasons led to the conclusion that even the attack by Hamas at the music event was not a sign of provocation but a response to inhumane behaviour by Israel on the Palestinian people.

This dates back to the UN Security Council’s (UNSC) Resolution 181 of 1948 which created the state of Israel but called for a two-state solution where Israel and Palestine could live side by side.

Having taken a neutral stance on the Russia/Ukraine war, South Africa’s foreign policy was once again put to the test by Israel’s invasion.

As human rights were being violated, as women and children were killed like flies, as the elderly and the defenceless perished at the hands of Israeli soldiers, South Africa felt obligated to act to end this menace.

Something is worth explaining here to assist those who use the International Criminal Court (ICC) and the International Court of Justice (ICJ) as though they are one and the same thing.

The ICC was established in 2002 following the adoption of the Rome Statute in 1998. It is a separate institution.

The ICJ, on the other hand, is one of the six organs of the UN. The other five are the General Assembly, Security Council, Economic and Social Council, Trusteeship Council and the Secretariat. All these institutions predated the ICC.

Therefore, the decision by South Africa to approach the ICJ and not the ICC was a correct one. Israel is a member of the ICJ. As such, Netanyahu is bound by the terms of this organ.

As is the case with any decision, South Africa’s decision to take Israel to the ICJ has received mixed reactions. Countries like America are averse to this idea. They believe that what Israel is doing is right as a form of self-defence.

The fact that innocent lives are being lost every day is immaterial to the proponents of this view. Even the fact that Israel has deliberately bombed refugee camps and hospitals is applauded by Israel’s supporters as a sign of being innovative and providing prompt responses.

A few weeks ago, some Israelites were gunned down by their fellow soldiers who thought that their sign of surrender was a trap. This incident, too, proved that Netanyahu is reckless in dealing with the situation in Gaza. Sadly, the UNSC cannot assist in this situation since the five permanent members (P-5 countries) in the UNSC have veto power.

As some countries level criticism against South Africa for the ICJ decision, others applaud this move. Such countries include Bolivia, Brazil, Colombia, Cuba, Indonesia, Iran and Jordan, among others.

Winning this case would be a bonus to South Africa. What matters most is the fact that the country has taken the initiative, which is in line with the country’s foreign policy agenda.

Even if South Africa were to lose the case, history will judge the country favourably for having taken the initiative to act against Israel’s genocide in Gaza.

Some within South Africa accuse the South African government of “wasting” state resources and time. Mainly, they are not knowledgeable about international relations.

Those who see the bigger picture understand that when international bodies are constituted, countries with backbone and who abide by international law and advance foreign policy agendas are credited.

They are invited to join international bodies and/or sit as observers in other bodies which they are not members of, such as the G7/G8 Summit and the European Union (EU).

* Bheki Mngomezulu is a Professor of Political Science and International Relations at the Nelson Mandela University.

** The views expressed herein are not necessarily those of IOL/Independent Media.