The Decibel - South Africa takes Israel to UN court

Episode Date: January 11, 2024

On December 29, South Africa submitted an application with the International Court of Justice claiming that Israel’s offensive in Gaza is “genocidal in character.” The UN’s judicial court is hearing South Africa’s request for provisional measures on Thursday and will hear Israel’s response the next day.Geoffrey York is the Globe’s Africa bureau chief, based in Johannesburg. He explains what was in South Africa’s application and what it means for the war in Gaza.Questions? Comments? Ideas? Email us at [e-mail]

It's been more than three months since the Israel-Hamas war began. An assault by Hamas on October 7th resulted in 1,200 Israeli deaths. Since then, over 23,000 people have died in Gaza, according to the Gazan Health Ministry. There have been calls for Israel to reduce harm to civilians in Gaza. And this week, one country is for Israel to reduce harm to civilians in Gaza. And this week, one country is taking Israel to court. On December 29th, South Africa filed an application with the International Court of Justice to say that Israel's offensive in Gaza is, quote, Today, on Thursday, the court is scheduled to hear the case

behind South Africa's request for the ICJ to intervene. On Friday, Israel is set to go before the court. Jeffrey York is the Globe's Africa Bureau Chief, based in Johannesburg. He's here to explain what the application to the court says and what it could mean for the war in Gaza.

I'm Maina Karaman-Wilms, and this is The Decibel from The Globe and Mail. Jeff, thank you so much for being here. Thank you for having me. So today, Thursday, South Africa is presenting their case before the International Court of Justice in The Hague. So let's just back up for a moment here, Jeff. What did South Africa submit to the ICJ a few weeks ago? Yeah, so the application by South Africa was actually on December 29th. It's an 84-page document. But basically what they're saying is that acts and omissions by Israel in Gaza are genocidal

in character and committed with the requisite specific intent to destroy Palestinians in Gaza as a part of the broader Palestinian group. And they also say that Israel has failed to prevent genocide and failed to prosecute the direct public incitement to genocide. So what South Africa is basically saying is that these are violations of the Genocide Convention. And under that convention, which South Africa and Israel and 150 other countries have joined, under that convention, Israel has an obligation and South Africa have an obligation to prevent genocide from happening. So as a result of that obligation, South Africa is asking the court to order, on sort of a temporary or interim basis to issue an order that would

require Israel to take certain actions to prevent genocide. And so, Jeff, you mentioned that this is being filed under the Genocide Convention. Can you lay out where did that come from? Yeah. So the Genocide Convention is international law that was adopted in 1948. It came directly out of the Second World War and the Holocaust. And in fact, the invention of the term genocide, the term was coined during the Second World War to refer to the Holocaust. And it came out of that feeling that, you know, never again, that there should never be a genocide again, never be a Holocaust again. So it was the attempt by the international community to sort of codify that and for the first time to criminalize genocide and to spell out the obligations of every country that signed the

convention to prevent genocide. Okay. And I think we should also maybe define what the ICJ is here, because this is what we're talking about. I think a lot of people might think of the ICC, the International Criminal Court, which is different, right, than the ICJ. So what exactly is that? Yeah, there's a lot of confusion between the two courts because they're both based in The Hague. But the ICJ, the International Court of Justice, is a United Nations court. It's the only judicial body that is spelled out and mandated under the UN Charter. So it's the supreme judicial body at the UN. It's sometimes called the World Court. But the ICJ is basically ruling on disputes between countries, between state members of the ICJ, whereas the ICC, the International Criminal

Court, prosecutes individuals for war crimes and crimes against humanity. Okay, so this is at the state level, not the individual level. That's what we're talking about. That's right. The ICC, of course, is also already investigating acts by Israel in Gaza and elsewhere in the Palestinian territories. And one of the differences between the two courts is that a number of countries, including Israel, also the United States, Russia, China, and so on, have not signed up to the ICC. So they reject the jurisdiction of the ICC, which means the ICC has a jurisdictional issue that can be disputed when it comes to Israel. But those jurisdictional questions do not exist at the ICJ, where Israel and Canada, the United States, and so on, have all accepted the jurisdiction of that court.

Okay, so let's actually talk about this application that South Africa has submitted, Jeff. So this document was 84 pages long. And let's look at what was actually in this document. So what kind of evidence, I guess, did they include here to support their claims? Well, there's a lot to take from it. I think some of it is the actual military operations of Israel. So a lot of it is about the bombing campaign, the destruction of not only human lives, but also hospitals, cultural objects in Gaza. So there's a lot about the military operation, but there's also a lot in this application about the siege of Gaza, the blocking of supplies going into Gaza by Israel, and the fact that by almost every reckoning, not enough food, water, medicine and so on is getting into Gaza.

The third element is the establishment of genocidal intent. How do they try to establish genocidal intent? Well, there's nine pages of that in the application. It's a very, very important issue because South Africa really has to establish intent here. And let's not forget that at the actual hearings on Thursday and Friday, this is not a final resolution of the merits of the case. South Africa will make the case that there's enough plausibility on the merits of the case to require urgent action and to require the court to issue an urgent order that certain action be taken by Israel to prevent genocide. That's where, again, where genocidal intent is a key issue, but that will ultimately be decided

in the final decision, which could be years from now, on the merits of the case. In the short term, South Africa needs just to establish that the merits of the case can be argued plausibly. Yeah. And so, Jeff, you mentioned, though, these nine pages of quotations from Israeli politicians, officials. What exactly were in those quotations? Like, what are they citing here? Well, there's a long, long list of quotations. And among the nine pages of quotations in this court application by South Africa are quotations from Prime Minister Netanyahu. They begin by quoting him using rather what they call dehumanizing language by portraying the battle in Gaza as a struggle between the children of light and the children

of darkness, between humanity and the law of the jungle. And they described this as dehumanizing. There's also quotations from President Herzog saying that in relation to Gaza, that an entire nation out there is responsible. So rather than saying Hamas, he was using the term an entire nation. And then quotations from the Minister of Defense referring to Israel fighting human animals and saying that he has released all the restraints and removed every restriction on Israeli forces. We will eliminate everything. So those are some of the quotations that South Africa is using to substantiate this argument about genocidal intent. And Jeff, let me ask you about Israel. Of course, they'll get a chance to respond to this application on Friday. What has Israel said

so far about the situation? Well, so far, they have not really revealed the legalities of exactly how they're going to defend this case. Their statements so far have been quite general. For example, President Herzog this week said that the South African case was atrocious and preposterous, and spokespeople for the government have earlier called it a blood libel. And they have said that South Africa is providing cover, legal and political cover for Hamas. But the response has largely been political in the sense that they have criticized South Africa for being hypocritical. But they have not really said what their legal defense is going to be, especially on the hearings this week, which are about provisional measures and a temporary court order. So far, publicly, aside from Israel itself, the only country that has publicly opposed or the only

government that has publicly opposed the South African application is the United States, where a spokesperson for the National Security Council called it meritless and counterproductive. Okay. I guess I'm wondering why South Africa is the country that's submitting this. What kind of relationship does South Africa have with the Palestinian territories? Well, South Africa has been a supporter of the Palestinian cause for a long time. If you go back to the 1990s, South African liberation heroes like Nelson Mandela, Desmond Tutu, and so on, were strong supporters of the Palestinian cause. And the ruling party, the ANC, Nelson Mandela's party, which is still in power, has always been a strong supporter of the Palestinian

cause. So that's part of the background here. During the apartheid days, the PLO, the Palestinian Liberation Organization, was a supporter of the ANC in its fight against apartheid. And the ANC remembers that. So there's sort of loyalties that that relationship has turned very frosty. Back in the 90s, the relationship wasn't so bad, but in recent years, it's really deteriorated. South Africa has downgraded its embassy in Israel. Israel withdrew its ambassador from South Africa recently, and the South African parliament actually voted recently to sever its diplomatic relationship with Israel and to require Israel to close its embassy in South Africa. That action was approved by parliament, but has not actually been implemented by the government at this point. But that's an indication of the political mood that a majority of parliamentarians voted for that. I'm also wondering then, like, how is this war between Israel and Hamas,

how has that been playing out then in terms of the reaction within South Africa? Well, it's been a huge issue in South Africa, just as it's been a huge issue in many other countries. There's certainly been protests, counter-protests, demonstrations or rallies, and so on, by both sides in pro-Israel and pro-Palestinian in South Africa. There's been a fair amount of controversy about how South Africa is handling this. Some opposition MPs in South Africa have criticized the government and especially the ruling ANC for being willing to meet with Hamas representatives. There was a Hamas delegation that came to South Africa just a few weeks ago,

and ANC officials openly met and welcomed that delegation. South Africa also has, you know, close relations with Hamas's supporter, Iran, and that's also been controversial among opposition MPs. We'll be back in a moment. So, Jeff, the ICJ is an international organization. So I would imagine South Africa is bringing this forward, but it would be looking to other countries to also support this move, right? So

what kind of support has South Africa gotten from other countries here? Well, there's been a lot of support, especially from Muslim countries, but others as well. Recently, we saw Bolivia, Turkey, Jordan. There's about a dozen countries so far that have publicly supported this application. I guess I'm wondering about other countries in that region of the world as well. It's geographical neighbors. Have other countries in that region of the world as well. It's geographical neighbors. Have other countries in Africa come out with a stance here? Most of them have not officially taken a stance.

A number of Africans, especially in countries like Sudan, have found it somewhat hypocritical that South Africa is taking such a strong stand on Gaza when it has really said very little and done very little on conflicts in its own backyard, including Sudan, where right now, you know, for the past nine months, there's been an absolutely catastrophic conflict that has now forced, you know, 7.6 million people from their homes and has killed at least 12,000 people. And South Africa has said very, very little about that case. In fact, to the contrary, South Africa has actually hosted one of the two main leaders of that war, the leader of the RSF paramilitary group. Just last week, President Ramaphosa of South Africa hosted the RSF commander, General Hamedi, and did not criticize his conduct, even

though he's been widely accused of war crimes in Sudan. So there is a perception among some Africans that South Africa is a little bit hypocritical here. And Jeff, what about Canada? Where does Canada stand in all of this? I've repeatedly asked the Canadian government, Global Affairs Canada, and the Foreign Affairs Minister, whether they're going to take a stand on this case. And so far, all they've said is that they are aware of it. And they have not said whether Canada supports or opposes this application by South Africa. Canada has been a strong supporter of the ICJ, and it has intervened and supported a number of cases at the ICJ on human rights issues. It certainly supported Ukraine, for example, in a case between Ukraine and Russia

over the Russian invasion of Ukraine. It supported a case about torture in Syria, and it has taken a very strong stand in Myanmar in a case that's actually very relevant for this one, because the Myanmar case, just like the Israel case, was actually filed by a country that is far away. In the Israel case, the case was filed by South Africa. In the Myanmar case, the case was filed by Gambia. So, you know, again, thousands of miles away from the actual war zone. But what's similar is that there's an opportunity for other countries to intervene. And in this case, Canada intervened beings being killed in a conflict or in a massacre or something like that. It actually takes a broad definition. It says that genocide can also consist of actions such as preventing sufficient amounts of food and water and medicine from getting into a region. And that's an argument that seems very relevant to Gaza, where, again, South Africa and many others in the UN and so on are saying that

Israel is preventing a sufficient amount of food, medicine, water, and so on from getting into Gaza. It sounds like we don't know yet when we'll hear any kind of ruling from the ICJ. You mentioned that this could really take years. But what impact could this case have? Well, the merits of the case could take years. But in fact, on the provisional measures, on the short-term court order that South Africa is seeking, that could actually come within a matter of days or some people are suggesting a couple weeks. South Africa is seeking certain actions like an immediate halt in Israel's military operations, a lifting of the siege, and so on. But the ICJ, the judges of the ICJ, the 17 judges that will hear this case, could actually

modify that and could say that we are issuing an urgent order on Israel to modify its actions, for example, to reduce its military action or to lift some of the siege, while still allowing Israel to conduct some action. So there could be sort of a compromise on that, where the court decides that Israel is making some good points about the need for self-defense or the humanitarian aid that it is allowing into Gaza. And it could simply order that there be greater humanitarian aid or some kind of a partial ceasefire or something that is a modification of what South Africa is looking for. But that would clearly have a big impact on global public opinion and global support or opposition for this war in Gaza.

So that's why people are really looking for this short-term order, which could come out in a matter of days. Yeah, so it sounds like the influence on public opinion could really be significant here. Is there any enforcement mechanism with the ICJ? Can they enforce any action? There's no enforcement mechanism built into the ICJ except for the UN Security Council itself. And people are not really expecting that the Security Council would enforce any ruling by the ICJ. We've never seen that happen in the past. For example, in the Ukraine case

that I mentioned earlier, Russia was ordered to stop its invasion of Ukraine, but Russia simply ignored that. And of course, Russia has veto power on the Security Council. So, you know, there was no chance for the Security Council to take action on that. So it sounds like really, so we could be watching this in the next few weeks. The influence on public opinion does seem to be a big part of this as well then. And influence on governments as well. There might be, as a result of any court order that comes out of this, it could persuade some governments to reduce their military support for Israel or to reduce their support for Israel in UN votes. I mean, really, it could have a significant impact in sort of shaping the global

climate around this war. Jeff, thank you so much for taking the time to speak with me today. You're welcome. That's it for today. I'm Maina Karaman-Wilms. Michal Stein produced this episode. Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show.

Adrian Chung is our senior producer, and Angela Pachenza is our executive editor. Thanks so much for listening, and I'll talk to you tomorrow.