ICJ ruling cements SA’s status as a champion of human rights

South Africa succeeded in its application in the International Court of Justice for Israel to sop killing Palestinians in Gaza. Picture: Picture: Timothy Bernard / Independent Newspapers.

South Africa succeeded in its application in the International Court of Justice for Israel to sop killing Palestinians in Gaza. Picture: Picture: Timothy Bernard / Independent Newspapers.

Published Feb 3, 2024


Alvin Botes

South Africa’s case at the International Court of Justice to prevent acts of genocide against the Palestinians in Gaza has done more for our country in terms of global public opinion than probably any other issue since Nelson Mandela’s presidency.

It has restored our reputation as a country that champions the rights of the oppressed, and has underscored the bravery of our leadership in taking this case to the World Court in order to save lives and ensure no country can get away with committing genocide with impunity.

South Africa’s commitment to justice and international law in the face of threats and bullying by some in the international community has reinforced our post-1994 legacy as a country that is determined to stand on the right side of history and defend the rights of the oppressed, no matter the cost. South Africa is the reference point for the world when it comes to issues of human rights. Our government has reaffirmed Mandela’s position that human rights should be foundational to international relations. This is a milestone moment as we celebrate 30 years of our democracy this April.

For this moral fortitude, people around the world have lauded our position, and South Africans wherever they find themselves are being celebrated as heroes. Shortly after the ICJ ruling a South African citizen boarded a plane overseas and was given red carpet treatment by the flight attendants and passengers just for being South African – an unexpected display of support for South Africa’s efforts to end the genocide under way in Gaza. We may have many challenges in our country, but these are the moments that make us so proud to be South African.

As a nation we need to acknowledge the moral stand taken by our Cabinet when they decided on December 8 last year that South Africa should institute legal proceedings at the International Court of Justice (ICJ) against Israel for violating its obligations under the Geneva Convention on the Prevention and Punishment of the Crime of Genocide (1948) in Gaza. Cabinet was swayed by the sheer immorality and illegality of the actions of the Israeli government as it carries out a genocidal campaign against the people of Gaza.

The human rights NGO Oxfam has indicated that the average daily killing of Palestinians by the Israeli military since October 7 exceeds the daily death toll of any major conflict in recent years.

The deaths of children are almost incomparable both in terms of actual numbers killed and the rate at which children have been killed. The indescribable suffering of young children who continue to be operated on without anaesthetics during amputations and other serious surgeries is beyond comprehension. The lack of even basic medical supplies and painkillers to treat gruesome injuries is testament to the depravity of this military onslaught. More journalists have been killed in Gaza in the last 100 days than were killed during World War II and during the Vietnam War.

There was consensus within our political leadership that South Africa needed to approach the highest judicial organ of the United Nations to stop the mass killing of Palestinians, 70 percent of whom are children and women, and to stop the wholesale destruction of civilian infrastructure including residential buildings, hospitals, schools, bakeries, water and electricity sources. From the outset, our interests have been centred on the values and principles of the South African Constitution, which places a premium on the right to life, the right to dignity, and the human rights of all people.

South Africa presented its case to the ICJ on January 11, and on January 26 the court delivered its order on South Africa’s request for provisional measures. The court found “plausible” (paragraph 54 of the ruling) evidence that Israel was conducting a genocide against the Palestinians of Gaza.

While not all provisional measures that were requested by South Africa were granted, crucial ones that will contribute to the protection of Palestinians were granted. The Court was near unanimous (a 15-2 division) in its order for provisional measures, which include that: Israel shall take all measures within its power to prevent all acts of genocide as contained in Article II of the Genocide Convention (including “killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and imposing measures intended to prevent births within the group”).

The order stated that Israel must prevent and punish direct and public incitement to commit genocide. Israel is also required to take effective measures to provide urgently needed basic services and humanitarian assistance. It must ensure effective measures are taken to prevent the destruction of evidence and ensure its preservation, and is required to provide a report to the Court on the measures it has taken to give effect to these provisional measures within one month.

It is interesting that the Israeli judge at the ICJ, Aharon Barak, joined the majority of the judges in a vote of 16-1 to say that Israel is not allowing in humanitarian aid to the Palestinians in Gaza, and that Israel must “prevent and punish the incitement of genocide.”

If Israel either fails to respond or does not respond satisfactorily to the Court order, then the ICJ will send its order to the UN Security Council (UNSC) for enforcement. The UNSC will be bound by the UN Charter to enforce the order. Israel has already rejected the order. Algeria, a member of the UNSC at this time, has asked for a meeting to be held to discuss the verdict and to have the UNSC call for an immediate ceasefire.

President Cyril Ramaphosa has hailed the ICJ ruling as a “victory for international law, for human rights, and above all, for justice.” It has put South Africa on the right side of history.

The vast majority of countries globally, and indeed ordinary people across the globe, recognise that South Africa's actions were to stop a textbook case of genocide.

The intention was to save the lives of thousands of people, including children in Gaza and to end the institutional impunity which Israel has been enjoying for decades - which has emboldened their unlawful killing of Palestinian people in Gaza and other occupied territories. South Africa’s ubuntu diplomacy is reflected in the idea that we affirm our humanity when we affirm the humanity of others, including the Palestine people; thus playing a major role in the forging of South African national consciousness.

Alvin Botes is the Deputy Minister of International Relations and Cooperation