Al-Qalam 
By Iqbal Jassat
South Africa’s groundbreaking legal initiative at the International Court of Justice (ICJ) against Israel’s genocide in Gaza defined one of the high marks of the country’s commitment to a foreign policy informed by values of human rights and justice.
The date of 29 December 2023 will be recorded in the annals of South Africa’s post-1994 history as the day it commenced proceedings against Israel at the ICJ, providing comprehensive and sound legal arguments that Israel’s conduct in the Gaza Strip violated the Genocide Convention.
South Africa’s team of lawyers, who included specialists in international law, requested the Court to issue preliminary measures and framed its case for the commission of acts of genocide within the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza.
On 26 January 2024, the ICJ ordered Israel to take all measures within its power to prevent the commission of all acts within the scope of Article II of the Genocide Convention, and to take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.
In recalling the declaration of Judge Hanqin Xue, we learn that in addition to concurring with her colleagues in upholding South Africa’s standing on a prima facie basis, in instituting proceedings against Israel for breach of its obligations under the Genocide Convention, she noted that the question of Palestine has been on the agenda of the United Nations since the inception of the Organization.
And that the people of Palestine, including the Palestinians in the Gaza Strip, have not yet been able to exercise their right to self-determination.
She further recalled the relevant United Nations resolutions, which state that “the United Nations has a permanent responsibility towards the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy”.
In Judge Xue’s view, this responsibility required that the United Nations, including its principal judicial organ, ensure that the Palestinian people are protected under international law, particularly protected from the gravest crime, genocide.
What followed between then and now have been a number of interim orders among which the ICJ ordered Israel to immediately “halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part”.
It also ordered Israel to open the Rafah crossing for “unhindered provision at scale of urgently needed basic services and humanitarian assistance” and to take effective measures to “ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide”.
None of these measures have been adopted by Israel – in fact it has defied them by continuing the mass slaughter of Palestinians in Gaza.
Amnesty International’s Agnes Callamard summed up Israel’s bloodbath as follows: “Taking into account the pre-existing context of dispossession, apartheid and unlawful military occupation in which these acts have been committed, we could find only one reasonable conclusion: Israel’s intent is the physical destruction of Palestinians in Gaza, whether in parallel with, or as a means to achieve, its military goals of destroying Hamas”.
According to former South African Foreign Minister Naledi Pandor, it is abundantly clear that the failure to stop Israel’s genocidal attacks on the Gaza Strip has exposed the shortcomings of international legal mechanisms and renewed urgent calls to reform the UN.
In a recent interview with Anadolu Agency, Pandor expressed her exasperation by stating that “It cannot be that we allow the world to stand by, weak, while the people are being murdered.”
“We need a capacity that is military, that can go and become a protector of the innocent wherever such harm occurs in the world.”
As the world begins “more concrete discussions” about UN reform, she asked: “What form of enforcement capacity should we create in the global community?”
“It could be under the remit of the (UN) Security Council, but then the composition of the Security Council cannot be as it is today,” she said. “Because, these are the very nations that actually cause a great deal of harm or support it.”
As is well known, the US – one of the five permanent members of the Council — has repeatedly used its veto to block any action against Israel.
And with Donald Trump in the White House with his misguided obsession to protect and defend the Zionist regime, US-South Africa ties have deteriorated sharply – perhaps beyond repair, some may argue, unless the country drops and withdraws the ICJ case.
The genocide in Gaza has challenged the global order to either conform to civilised norms and values or forsake them.
South Africa has no choice but to remain committed to the values of human rights informed by its struggle against apartheid.
It thus has per the ICJ decision a duty to not only suspend all forms of support for Israel that enables it to maintain the illegal occupation, but to also prohibit any and all of their citizens and entities from “rendering aid or assistance” towards maintaining Israel’s presence in the Occupied Palestinian Territories.
*Iqbal Jassat is an Executive Member of the MEDIA REVIEW NETWORK.
