Dr Ingrid Roestenburg-Morgan
Ingrid Roestenburg Morgan is a Senior Research Fellow at the Institute for Justice and Reconciliation (IJR), South Africa. She is both a legal practitioner and scholar and specialised in international human rights, international criminal law and transitional justice. She has previously held positions at the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia (ICTY) and ActionAid International (AAI).
Introduction
The recent events surrounding the conflict in Israel have resulted in much discussion around the reasons for South Africa’s bold yet necessary decision to refer the situation to the International Court of Justice (ICJ) and also simultaneously to the International Criminal Court (ICC) for adjudication. South Africa’s decision comes in the wake of the Russia-Ukraine war, which has had polarizing effects on the geopolitical situation in the world further widening the gap between countries in the Global South and the West. As a result, the motive behind South Africa’s application to the International Court of Justice has become questionable in light of a number of developments with significant impact on South Africa’s decision to institute a case against Israel. This blog post will therefore attempt to deconstruct and analyze the main motives behind South Africa’s actions to institute proceedings against the State of Israel at the International Court of Justice given their amicable foreign relations. The intention is to provide clarity on the main motive and/or subsidiary motives driving the South African case at the ICJ.
Background of Application to ICJ and Adjudicated Outcomes
In brief, the events and timeline surrounding these developments are as follows:
On the 29th of December 2023, South Africa filed an application instituting proceedings against Israel at the International Court of Justice alleging violations by Israel about its obligations under the Genocide Convention. In its application, South Africa alleged that Israel is guilty of committing acts and omissions that are genocidal in nature with the requisite specific intent to destroy Palestinians in Gaza. South Africa in particular requested the ICJ to decree provisional measures in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide.” Following South Africa’s application, the ICJ in its order on the 26th of January 2024 held that Israel should honour its obligations under the Genocide Convention and take the necessary measures within its power to prevent the commission of acts prohibited under the relevant Convention. This would include ensuring that its military forces do not commit the acts outlined in the Convention including preventing and punishing the incitement to commit genocide.
Furthermore, the Court held that Israel’s legal obligation under the Convention must extend towards enabling humanitarian relief to Gaza, including taking effective measures to prevent any destruction of evidence related to the allegations of acts outlined in the Genocide Convention. The ICJ also in its ruling requested Israel to report in writing to the Court within a month on how Israel was meeting these measures. On the 12th of February 2024, South Africa filed an urgent request for additional measures against a planned Israeli military attack in Rafah which it stated would be in violation of the Court’s interim order and the Genocide Convention. This request was rejected by the ICJ on the basis that the provisional measures handed down were applicable throughout the Gaza Strip including Rafah and that Israel should respect the earlier measures laid down.
Then, once more on the 6th of March 2024 South Africa filed another urgent request for the indication of provisional measures by the Court in light of new breaches in the situation of Gaza drawing the Court’s attention to the widespread starvation in Gaza brought about by Israel’s alleged further breach of the Genocide Convention. Israel subsequently responded to South Africa’s request and held that South Africa’s request for modification of the provisional measures was based on a misrepresentation of reality and that South Africa’s main goal was to seek continued political attention to the issue, which in its view was sensationalist. The Court in response unanimously ordered that Israel take the necessary measures and action to ensure that basic food supplies arrive without any delay based on the observation that famine was already setting in in Gaza.
South Africa’s Relationship with Israel
Based on these recent developments and on face value, one would assume that Israel and South Africa have long held weaker diplomatic and economic relations. However, this is not the case as historically South Africa has overall maintained quite a strong relationship with Israel on many fronts including military, trade, economic and otherwise. The relations between both countries date back to as early as 1917 and continued very strongly during the apartheid years in South Africa when Tel Aviv and Pretoria were strong allies and shared common ideological and economic interests. Spurred on by being isolated by their neighbours, being highly militarized and having similar segregation systems modelled closely to one another, both countries developed deeper ties facilitated by the estrangement they experienced from the international community. However, during the Cold War period, Israel took a divergent stance, with Israel suddenly supporting an anti-apartheid agenda against South Africa and with the intent of building better alliances with newly independent African states. This happened to the chagrin of the apartheid government’s nationalist leaders who at that time openly declared that “like South Africa Israel is an apartheid state.”
After not too long, however, these tensions were soon abated and both countries' relationship as allies was restored and continued well into the 1980s when both collaborated more fervently together on military and nuclear issues. In the build-up to the release of Nelson Mandela and his accession into power, a more distinct shift took place with Mandela’s and the African National Congress’s (ANC) open support for the Palestinian Liberation Organisation (PLO) and its leader Yasser Arafat. Both the PLO and ANC as the liberation movements of Israel, respectively South Africa were already in the background aligning their interests and struggles as early as the 1950’s and 1960’s in support of each other’s anti-colonial struggle and also where weaponry and military tactics were concerned. Mandela’s relationship with Arafat was a long-standing one and is famously depicted through his famous quote …"We know too well that our freedom is incomplete without the freedom of the Palestinians." Ever since South Africa has remained in solidarity with the Palestinian people but has simultaneously maintained and preserved its strong diplomatic ties and interests with Israel as well. This is evidenced by its trade with Israel, which is estimated at around 285 million dollars per year revealing their strong economic cooperation.
Motivations for South Africa’s Referral of Israel to the ICJ
It is clear that the relationship between South Africa and Israel while described as friendly, is a complex one with no easy explanation for South Africa’s recent decision to approach the ICJ. South Africa’s foreign policy decisions and behaviour have often been described by many political commentators as confounding over the years, given its complex identity as a multicultural state, which is endowed with a strong Western heritage and a revitalized ‘Africanness’. Reflections on South Africa’s foreign policy and decisions according to International Relations experts must therefore be viewed based on its transition from apartheid to democracy and parallel to this its transition from a White nationalist government to a majority Black and/or multicultural one.
Studies conducted on South Africa’s foreign policy reveal that where the country once saw itself as a victim of the Global North or West it has since transitioned into a survivor and spokesperson for the rights and needs of countries from the Global South thus openly resisting and defying western dominance and focusing on ways to engender more agency for itself and other states from the Global South. In this way, South Africa attempts to overcome the wounds inflicted during colonialism and apartheid by confronting Western dominance and what it perceives as hypocrisy and inequality in the international arena.
Drawing on South Africa’s state identity an analysis of South Africa’s actions reveals that it is challenging the lack of political will for the Palestinian people in the international community and more so in the West. Palestine (West Bank and Gaza) has been classified as a country in the Global South while Israel falls under the category of the Global North. In the current conflict, South Africa has taken a clear stance in favour of Palestine as a disenfranchised Global South state and has subjugated its own diplomatic interests to the benefit of the rule of law, morality and human rights. It has done so through the conduit of international law and the international justice system. By using the means in the arsenal of international law available to it South Africa is attempting to achieve a cease-fire in Palestine despite facing backlash and political risk. Its motivation therefore, first and foremost, must be seen as a moral one propelled by its own troubled past of colonialism, apartheid and discrimination, which bear a strong resemblance to the struggles of the Palestinian people.
If South Africa were to remain silent while having a deep understanding of a similar type of oppression, it would be hypocritical and inconsistent in light of its own struggles to overcome inequality, oppression and apartheid. Furthermore, it would also be an outrage and disgrace to the legacies of its former President Nelson Mandela and other like-minded South African human rights leaders and activists such as Desmond Tutu and Steve Biko, all of whom were forefathers championing apartheid and oppression and suffering tirelessly for the downtrodden during the apartheid years in South Africa. Human rights icons such as these would undoubtedly be in solidarity with South Africa’s recent decision.
South Africa’s motives must also adjacently be viewed as challenging Western dominance and inequality on the international plane. By exposing the complicity of powerful Western states in support of Israel in the current crisis in Palestine, South Africa has exposed the consolidation of Western powers for their own benefit and diplomatic purposes while turning a blind eye to the suffering and disproportionate force being wielded by Israel in the current conflict. According to South African President Cyril Ramaphosa, “world leaders need to, and must make, a call for peace and not vengeance” and it is left to the international community to support peace…and not fan the flames of conflict.”
Relatedly South Africa’s motivation has also been to test and expose the legitimacy and efficacy of the international legal order by using the available avenues of the ICJ and ICC in full global view. In terms of the former, namely its application to the ICJ, the relief already obtained by the ICJ reveals the efficacy of the International Court of Justice as a legitimate global institution. This is evident from the ICJ’s expeditious order for provisional measures which has been welcomed by many including civil society, human rights defenders and countless in the international community. In terms of the ICC, South Africa’s recent appeal to the ICC to take action demonstrates its dissatisfaction with the ICC as a world court and clearly exposes the ICC’s inaction and lack of effectiveness when it is urgently required to act expeditiously in a grave situation of a massive scale such as the current conflict in Palestine depicts. South Africa’s appeal to the ICC Prosecutor to use his powers expeditiously in the Palestine situation is telling since they warn that doing otherwise is risking cynicism for the ICC and eventual failure. It is clear that the ICC’s legitimacy in Africa still remains weak and on shaky ground. This would require immediate attention by the ICC if it is to become more legitimate in the eyes of its African or non–Western constituents.
A final motivation for South Africa is the goal of sustainable peace and reconciliation between Israel and Palestine. South Africa has often favoured “reconciliation which includes the establishment of structures like human rights commissions and truth commissions.” It has been one of the few countries wherein a peaceful transition has prevailed. The South African Truth and Reconciliation Commission as a transitional justice mechanism has been a blueprint for many other post-conflict societies. Following its successful transition to democracy in 1994, South Africa has continued to assist in peacebuilding efforts mainly in Africa and abroad. The South African government has made it overtly clear in its public communications that it desires peace between Israel and Palestine and is calling for an immediate cease-fire by both parties. It similarly acknowledges wrongdoing by both Israel and Palestine and highlights the dangers that vengeance instead of reconciliation could bring which could jeopardize sustainable peace between Israel and Palestine in the long term. Its application to the ICJ against Israel’s bombardments could also be viewed as an effort to prevent the further loss of innocent civilian life and to expeditiously secure a ceasefire, bringing about a temporary state of peace so that political negotiations and the circumstances for peace can actually begin.
Conclusion
It is clear that South Africa’s decision to take Israel to the International Court of Justice has not been one taken easily but on closer scrutiny genuinely appears to be driven by a moral responsibility and its quest for equality on the international plane. South Africa’s actions will certainly have both political and economic ramifications for its relationship with the United States and other prominent Western states including Israel, however, it has come at a pivotal time in human history and brings the seriousness of global accountability into the spotlight. From the discussion above it has become evidently clear that the global community requires “an international system that is not just a tool for the most powerful countries of the world but one that provides real protection and peace for the world's most vulnerable.” If justice and global peace is to prevail it will also require the courage of conviction and commitment by states to support the rights of those most disenfranchised and helpless despite the political circumstances. States therefore need to stand tall in the face of political rejection and persecution if they want to be true champions for human rights and justice and in this way remain true to their international legal obligations.
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