South Africa’s argument today was historic and extremely important. If you missed it, I recommend that you go back and look for the recording. For the Israeli viewer, at least, the South African argument was a real service because at last, we could connect to a very dominant narrative in world politics, which is completely concealed by Israeli media. Many Israelis know almost nothing about what is done in our name, or about the humanitarian disaster that has unfolded in Gaza. To name just a few aspects, South Africa has contributed to exposing to the world a pattern of children left on their own after entire families were wiped out by bombs, operations conducted without anesthetics, and the 1.9 million displaced people. Of course, South Africa relies on other sources; but putting them together generates a harrowing and momentously tragic picture. Israeli media promotes ignorance, and South Africa is helping us solve this acute malaise.
However, the hearing also exposed a problem in South Africa’s argument, which was also apparent in the written application. The South African case brought before the International Court of Justice (ICJ) is highly selective. Prof. John Dugard, in an impressive performance, described how observers watched the events of October 7th “with horror”. But people reading the documents and listening to the oral arguments, without otherwise following the events, might think that before and after October 7, Palestinian forces did not shoot a single bullet. I searched South Africa’s submission to check if there was any mention of Palestinian combatants or Hamas tunnels. But almost no mention of these aspects exists. Indeed, towards the end, one of South Africa’s lawyers referred implicitly to Palestinian violence. As he explained, South Africa cannot sue Hamas because Hamas is not a party to the treaty. But this is far from a full account of Palestinian political violence.
Why, then, did South African lawyers choose to ignore Palestinian military activity? The basic tendency of Israelis is often to say that this is a form of anti-Semitism. Indeed, there has been a lot of discussion here recently of left anti-Semitism, and regrettably this is not always baseless. But the truth is that not mentioning Palestinian military action may also be problematic from a Palestinian perspective. It turns the Palestinians in Gaza into passive victims. But it is enough to watch Al Jazeera for 15 minutes or so, to see Palestinian targeting of Israeli tanks. Hamas spokesman Abu Obaida successfully competes with Israeli military spokesman Daniel Hagari for screentime. Even if Al Jazeera is exaggerating Palestinian militancy, the Palestinian people of Gaza are far from being passive victims.
The reason for this choice is, rather, related to legal strategy. The legal category of genocide is distinct from war crimes, and crimes against humanity. And only if it is a case of genocide – not the other categories – does the Court have the jurisdiction to begin with. In other words, regardless of the fact that Palestinian civilians are being subjected to atrocities, to obtain provisional measures, South African lawyers must push the acts into the specific box of genocide.
One might object: why should South Africa present Israel’s arguments, rather than its own view of the facts? In an adversarial or “contentious” case – one that takes place between two sides – that would clearly be Israel’s job. Observe however that the current procedure at the ICJ is not a process in which South Africa represents the Palestinians. If South Africa were representing the Palestinians, it would be completely understandable that its lawyers would present the facts from a specifically Palestinian perspective. It might then even be a professional ethics duty that South Africa present the facts in that kind of “one sided” way. But one state cannot form a client-attorney relationship with another state or political entity.
As Dugard explained, the Genocide Convention allows South Africa to protect its own interests: the interest of upholding its own duty under the Genocide Convention. This interest, unlike the interest in an adversarial procedure, is to bring all the relevant facts before the court. These include Palestinian military activity, and probably war crimes from both sides (even if in different proportions and severity). In a way, ICJ jurisdiction under Article 9 of the Genocide is more similar to advisory opinion jurisdiction, than to jurisdiction in a contentious case.
Tomorrow Israel will present its own version of the facts of the war, which I am absolutely certain will be extremely selective as well. But, to reiterate, the two are not two sides of a single dispute. There is a third party that is the victim of Israel’s actions, however we classify them, and that party is not in the room in any formal capacity. If South Africa wants to realize its own obligations under the genocide convention, it cannot be in the position of trying to prove Israel is committing genocide. It should rather be in the position of trying to find out whether that is the case, with all its solidarity, undisputable, and justified concern for Palestinian lives.
Legally, South Africans were not obliged in any way to ignore the background situation of armed conflict. If they wanted, their lawyers could have presented all the facts, including Palestinian military activity, and said it was genocide in the context of war. There is no legal problem with that. But choosing not to do so is also a litigation strategy choice. South Africa understood the context of an armed conflict, but feared that presenting it as such would make it difficult for them to argue the genocide case. As Dirk Moses emphasized, genocide is perceived, at least culturally, as something that happens to “innocent victims.” The concern is that in a situation that is not genocide, but “only” war crimes or crimes against humanity, the court no longer has jurisdiction.
In its argument, scheduled for tomorrow, Israel will surely emphasize Palestinian military activity as well as war crimes. Does this mean that South Africa will fail their case? The current stage is an oral argument for provisional measures in order to ensure a ceasefire or a similar remedy. I believe that at this stage, South Africa will nevertheless prevail. The urgent case they made about the need to respond to the enormous catastrophe in Gaza, which they brought before the ICJ, is compelling. And the threshold they need to meet for plausibility of irreparable harm is relatively low. However, with the risk of making a prediction, I think that in the ultimate argument –proving that Israel committed genocide – South Africa may indeed fail. Regardless of the very real legal and moral failings of the war Israel is conducting, the near-elimination of the context of an armed-conflict may work against South Africa’s case.