11 January 2024

The Missing Party

On South Africa’s Legal Strategy in its Genocide Application before the ICJ

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.


SUGGESTED CITATION  Mann, Itamar: The Missing Party: On South Africa’s Legal Strategy in its Genocide Application before the ICJ, VerfBlog, 2024/1/11, https://verfassungsblog.de/the-missing-party/, DOI: 10.59704/f73c5a32e69f6d1c.

7 Comments

  1. Prof Joseph ngala Sat 13 Jan 2024 at 09:33 - Reply

    I really like Tamar Mann discussionit can assist even my student to understand ub based analysis this what need academic to then the world would be a better place with good anaysis

    • Ulrich Paetzold Sat 13 Jan 2024 at 18:35 - Reply

      Very interesting analysis, thank you very much.

      RSA may have succeeded, with its selective presentations, in making a compelling case for the urgency procedure.

      But ILs presentation of more complete facts, for both the main and the urgency procedures, made a convincing case against the need for the requested urgency procedures.

      Consequently, I would like to think that also the failure of he RSA urgency requests is not unlikely.
      We will see.

  2. Aya Sat 13 Jan 2024 at 22:57 - Reply

    I thoroughly enjoyed reading your article titled “ The Body of the Judge and the Suffering of the Collective”. It is a fascinating, enriching read that I shared with friends interested in law matters.

    The Genocide Convention establishes in its Article I that “the crime of genocide may take place in the context of an armed conflict, international or non-international, but also in the context of a peaceful situation.”
    That alleged acts of genocide have taken place in such a context does not abdicate Israel from its responsibility to minimize civilian deaths. I do not see how this may carve a dent into South Africa’s argumentation (I am not a lawyer so I might be missing something).

    Additionally, though debated, Gaza is considered occupied territory by most international human rights bodies. According to the Geneva Academy of International Humanitarian Law and Human Rights “the majority of international opinion” holds that Israel maintains effective control [of Gaza] even without armed forces present.”, In 2012 “the spokesperson for the UN Secretary General stated that under resolutions of the Security Council and the General Assembly, the UN still regards Gaza to be a part of the Occupied Palestinian Territory.”
    Since the International Court of Justice (ICJ) is the principal judicial organ of the United Nations, it will most probably follow its own definition of what constitutes an occupation. As Israel is an occupying power, it shoulders the responsibility of protecting those who are under its control.

    Another facet of what constitutes genocide is the very difficult feat of proving intent. This particular conflict is unique because it relies on extensive footage of an unfolding carnage through the lens of citizen journalists. Additionally, armed forces from both sides have filmed themselves doing and saying horrible things. Most importantly, Israeli decision-makers have been clear and open about their intent too. They have stated their belief that the Palestinian people of Gaza are far from being passive victims and thus deserve to be eradicated.
    The circumstantial evidence so far is substantial. Whether this evidence will be linked to the incriminating white papers pushing for the ‘voluntary migration’ of Gazans is yet to be seen.

  3. Gábor Spuller, Relíscon Dr. Spuller & Dr. Spuller, lawyer, Saxony-Anhalt Sun 14 Jan 2024 at 10:12 - Reply

    Without any comment to the introduction of the report, because I do not know
    the media situation in Israel, I follow Itamar Manns assessment in the line of the speciality of genocide convention, raising one objection to the alleged nature of this
    special procedure.
    >
    When South Africa filed the case, I was wondering, why. What ties or reason may this State have while it is referring this case to the Court? As Malcolm Shaw in his presentation pointed very clearly out, one of the main question maybe indeed, whether there exists a real dispute between the two States involved in the lawsuit. We have to be aware of the Courts notice in the Myanmar case please, that Myanmar failed to respond to a Note Verbale of the plaintiff within o n e m o n t h. Is this the minimum of time before a State is filing a case to the Court?
    >
    Apparently, the Court is expecting a timely answer within an appropriate timeline. However, here it seems, South Africa has not given Israel any appropriate time to respond. Nevertheless, the existence of a dispute between the parties is a strict requirement for the Court’s jurisdiction under Article IX of the Genocide Convention. According to the established case law of the Court, a dispute is “a disagreement on a point of law or fact, a conflict of legal views or of interests” between parties.

    To conclude: Although the effect of a decision is erga omnes the character of the procedure has is still contentious elements and is distinctively not advisory (here I disagree with Itamar Mann). In order to prevent any political use of the Court there must be still some preconditions met. In particular in a very special
    Proceeding such as in an accusation of a State committing genocide the plaintiff has to give clear and distinctive evidence before the Court. According to the established case law the Court must distinguish between mere political differences and real disputes, it has to determine this by himself as a matter of substance…

    • Aya Mon 15 Jan 2024 at 11:50 - Reply

      Exactly. There seems to be a current consensus that by not following the right procedures, South Africa has failed to show the existence of a dispute before filing its case to the court. The case would then be dismissed on this basis alone, regardless of whether SA’s Genocide claim is plausible. It also seems that if that were to happen, South Africa might be able to refile the case, with the delays that come with doing so. This would then trigger a deliberation on whether this allegation deserves to move forward to the “Merits” phase.

      Everything else mentioned by Israel, the war context, the atrocities, etc. are their way to appease to their domestic audience, their supporters overseas, and the media. The latter is not relevant to whether their own behavior merits scrutiny by the court. However, mentioning the 7 October events and their repercussions might influence what the provisional measures, if approved, could entail.

  4. Gábor Spuller Relíscon Dr Spuller & Dr Spuller., lawyer Saxony-Anhalt Thu 18 Jan 2024 at 23:27 - Reply

    To Ayas comment: “This would then trigger a deliberation on whether this allegation deserves to move forward to the “Merits” phase.”

    Maybe. However it is not just a matter of courtesy but of mutual loyal cooperation within a contractual context. Above all it helps to finalise and clarify the content of the dispute (subject matter, confer infringement procedure before EUCJ).

    • Aya Mon 22 Jan 2024 at 11:21 - Reply

      Thank you for the clarification!

Leave A Comment

<