SA vs Israel: SA ambassadors weigh in on ICJ case

Picture: Koen Van Weel/ ANP / AFP

Picture: Koen Van Weel/ ANP / AFP

Published Jan 11, 2024


South African ambassadors have weighed in on the South Africa’s case of genocide against Israel sitting at International Court of Justice.

This comes after South Africa launched a case last month at the ICJ against Israel for what it said were "genocidal" acts in Gaza, seeking an emergency suspension of military activities.

The court is expected to hear South Africa and Israel present their arguments on Thursday and Friday respectively.

IOL spoke to Dr. Kingsley Makhubela on the matter.

“This presentation before the court is on substantive matter on whether there is genocide going on in Palestine. That would take years for the ICJ to investigate an establish with some level of certainty on whether there is genocide going on on or not.

"The urgency is on stopping the carnage that is going on. And if that is to be achieved, it will be a major victory for Palestine because morally it would compel Israel to do that.

Makhubela explained that the findings of court has no legal force, therefore the ruling cannot be implemented.

“The ruling cant be forced on anyone. It is advisory. Israel could ignore it or disregard it and carry with its activities, there is no recourse for that.”

While it doesn’t have legal force, Makhubela says there is one option available.

“The only avenue that is available is when the court makes a judgment, it provides a similar judgment to that of the UN security council (UNSC). And the UN security council can enforce if it were to pass the resolution adopting the findings in their totality.”

However, Makhubela did not that “given the paralysis at the UNSC, it ”is unlikely to happen“ as the United states will veto as it previously has.

"I suspect that the approach that the Israelis will take at this hearing is to question the jurisdiction of the court, essentially saying ‘This matter is not within the competency of the ICJ because it’s international humanitarian law’. Now international humanitarian law has no jurisdiction to this (ICJ) court. It is only the International Criminal Court that can deal with that matter. And as we know, this matter is also being referred to the ICC by South Africa and other countries. Israel is going to try to buy time an it will be a case of double jeopardy.

“If you look at the international legal opinion and narrative that has been pushed around, there has been an argument of humanitarian assistance and its focus on humanitarian law. If the court was to be persuaded that what is going on in there is a matter of possible violation of humanitarian law, the court will then say they have no jurisdiction, so they will throw out the matter, which will be a big victory for Israel.”

Makhubela stressed this case has serious ramifications if the findings find that genocide has been committed.

“If you look at the genocide statutes, it clearly says those who are complacent in aiding and abetting genocide will be prosecuted. And the US will be found wanting in this case because the weapons used in Gaza is from the US.

Makhubela said on “substantive issues”, that South Africa has a strong case.

“Later on, South Africa would need witnesses and it all depends if those people would go and testify. If the witnesses do not testify and argue their points, the court could treat this as hearsay. My fear is that the people who South Africa has referenced is unlikely to take to the witness stand.”

Ambassador Welile Nhlapo echoes some of these sentiments.

Nhlapo told IOL that he believes that should South Africa succeed in its legal battle against Israel, the implementation of the court order may prove problematic.

While Israel was one of the first countries to sign the Genocide Convention, Nhlapo said everything happening in Gaza contains elements that are in contravention of that convention.

"Implementation is problematic which would mean that the matter be brought up to the UN Security Council. So there is a second phase that we can rely on," he said.

Nhlapo added that the deafening silence from many African countries not vocalising support for South Africa could be levelled down to what he termed "cheque-book diplomacy".

"It is not very nice but it is happening. There is also intimidation that is happening. Many African States depend on Israel or its allies, including the US, for many things. So those countries are under immense pressure.

"Some of them quietly will indicate fears because they have been threatened by Israel and the US and its allies," he said.

Follow IOL’s coverage of the ICJ hearings here.