SA Israel ICJ legal battle delicately balanced

Advocate Tembeka Ngcukaitobi represented South Africa at the International Court of Justice in The Hague’. (Photo by REMKO DE WAAL / ANP MAG / ANP via AFP)

Advocate Tembeka Ngcukaitobi represented South Africa at the International Court of Justice in The Hague’. (Photo by REMKO DE WAAL / ANP MAG / ANP via AFP)

Published Jan 22, 2024


Durban — Local law experts maintain South Africa’s legal team were impressive at the International Court of Justice (ICJ) hearing last week, but it was unlikely they would get the outcome they desired most: to stop Israel’s military assault on Gaza.

However, it was possible The Hague-based court would grant some of the provisional measures South Africa requested, they said.

South Africa has accused Israel of violating the Genocide Convention with its counter-offensive on Gaza, which resulted in the deaths of more 23 000 Palestinians, mostly women and children, over a three-month period. This after Hamas operatives launched unexpected attacks on Israel from Gaza, on October 7, and killed 1400 people and took more than 200 hostages.

Professor Cathleen Powell, the University of Cape Town’s international law expert, said it was unlikely the panel of 17 sitting judges, including a co-opted member each from South Africa and Israel, would grant a “unanimous judgement”.

Both countries presented their respective arguments over two days last week (January 11 and 12) and judgement is expected by February 5, at the latest.

Powell said the ruling was likely to indicate that the ICJ had jurisdiction to hear the matter and institute certain provisional measures that were requested, but a “trimmed down version” of what South Africa asked for.

In asking for the matter against them be thrown out, Israel’s lawyers raised that it was procedurally incorrect for South Africa to have approached the ICJ without first indicating it had a dispute with Israel.

“On the procedural points Israel made, I initially was impressed by their arguments on the dispute.

“But I’ve since checked the latest case law from last year (Gambia versus Myanmar). It is clear that the forms of communication that John Dugaard (member of the SA legal team) mentioned in his presentation was enough to show that a dispute was raised under the Convention.

“It is quite straightforward to show that the ICJ has jurisdiction to hear the matter.”

Advocate Adila Hassim SC for SA in the legal tussle at The Hague. | Itumeleng English African News Agency

Powell said for the court to grant provisional measures it needs to find a prima facie case of genocide.

“Israel did not deny it was carnage and didn't tackle any of the factual points made by SA about how bad it was. All it said was, it was Hamas’ fault and it was self defence and not genocide.

“And that the level of destruction and civil damages it caused was due to Hamas using the population as a human shield, that is Israel’s long standing claim.”

Powell said even if assuming there was a need for self defence by Israel, their legal team did not deal well with the genocide statement SA produced.

“For me it is an interesting legal problem in this matter; does genocide cancel out self defence completely or whether both can be happening at the same time.”

She also noticed statements made by some Israeli politicians, including comments about wiping out the Palestinians, could have been construed as “genocide intent” but Israel watered it down as nothing more than “war rhetoric”.

Powell said Israel objecting to SA calling for a “ceasefire” as a provisional measure was expected as Hamas was not before the court and that such an order would leave the Israelis with their “hands tied” and unable to defend themselves.

Sheetal Soni, a senior lecturer and academic leader of research and higher degrees at the school of law at the University of KwaZulu-Natal, agreed the ICJ had jurisdiction in the matter as both countries were parties to the UN Charter and Genocide Convention.

Soni said: “The SA legal team brought a thorough, careful and precise application to the court. The arguments had a sound basis in law, and were supported by reference to documented facts and statements made by Israeli government officials and soldiers to evidence genocidal intent.”

She said Israel’s lawyers were selective with their responses and much of their argument focused on procedural issues, Hamas’ actions and their right to self defence.

While Israel argued it had done everything possible to protect civilians, Soni believes they did not adequately show enough was done to prevent the humanitarian disaster.

She said Israel also needed to provide evidence to support its claim that Hamas embeds itself in the civilian population, including UN facilities, which made these structures legitimate targets.

She said SA will be successful with some of the measures requested.

“The order instructing Israel to stop its military operations is probably going to be the most difficult measure for the court to decide on.”

Professor John Dugard SC, an expert on international human rights.

Prominent members of SA’s 9-member legal team includes advocate Temba Ngcukaitobi SC, Professor John Dugard SC, advocate Adila Hassim SC and Professor Max du Plessis SC.

Dugard, an expert on international human rights has been aligned with various universities, including Pretoria, and a member of the UN’s international Law Commission.

Hassim is a constitutional law and human rights expert, an anti-corruption champion and a former UKZN student. She was also lead Counsel in the Life Esidimeni Arbitration matter.

Ngcukaitobi consistently handles some of the most prominent legal matters in the country, He is currently a member of the Judicial Service Commission and a part-time member of the Competition Commission's Competition Tribunal.

Sunday Tribune