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ICJ case one episode in a long struggle for justice, says advocate Ngcukaitobi

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ICJ case one episode in a long struggle for justice, says advocate Ngcukaitobi

International Court of Justice
Photo by Reuters

15th January 2024

By: News24Wire

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The symbolism of South Africa's genocide case against Israel in the International Court of Justice (ICJ) has been felt all over the world. But as much as it is a turning point for the world, it is a single episode in a long struggle for justice.

This is according to celebrated advocate Tembeka Ngcukaitobi, who was given a hero's welcome to South Africa after arguing before the World Court that Israel is guilty of genocidal intent. 

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Ngcukaitobi was part of a team of six jurists who argued South Africa's case that Israel's war on Gaza, which began after 7 October, is genocidal and aimed at destroying Palestinian people. 

The court heard two days of legal sparring, with South Africa arguing how Israel was determined to destroy and "wipe out" Palestinians in Gaza and, therefore, was violating the Genocide Convention.  In Israel's defence, the court heard how the military operations were an exercise in self-defence after Hamas attacked on 7 October, killing 1 200 Israelis (initially thought to have been 1 400) in southern Israel. 

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"This week marked an important episode, but it did not mark the culmination. It marked a very crucial turning point in having the world look at the issue through a legal lens. But, overall, the struggle continues," Ngcukaitobi said on his return to South Africa. 

Ordinary South Africans gathered at OR Tambo International Airport in Johannesburg to celebrate the return of the legal team that pleaded with the ICJ to enforce a precautionary measure that would stop Israel's military invasion of Gaza and allow humanitarian aid into the besieged enclave.

More than 23 000 people have been killed in the conflict that has breached 100 days, the Gaza health ministry has said. 

On Sunday, Ngcukaitobi was flanked by two junior advocates, Tshidiso Ramogale and Lerato Zikalala, after arguing South Africa's case at the Peace Palace in The Hague. 

Ngcukaitobi said while it was not up to the 17 judges – 15 permanent and two ad hoc – to decide, they were expecting an outcome "relatively soon". 

"It is a matter of urgency. They understand the weight of responsibility on their shoulders," he said. 

An outpouring of support for South Africa's solidarity with Palestine has been seen in both South Africa and abroad. 

In South African missions around the world, Palestinian supporters gathered to thank South Africa and its legal team. 

After the hearing on Friday, supporters handed flowers of appreciation to Justice Minister Ronald Lamola

"We want to thank South Africa for standing with the people of Palestine," a supporter said while the crowd chanted "South Africa". 

The South African flag was displayed in pro-Palestinian protests across the world over the weekend, with many expressing the belief that the atrocities in Gaza were clear for the world to see. 

'These are orders to destroy'

While Israel has dismissed South Africa's arguments as misguided and not based on facts, on Thursday, advocate Adila Hassim told the court: "For the past 96 days, Israel has subjected Gaza to what has been described as one of the heaviest conventional bombing campaigns in the history of modern warfare."

The main thrust of South Africa's argument was that Israel had committed four genocidal acts since the start of its military operations in Gaza, namely:

  • The mass killing of Palestinians;
  • The infliction of serious bodily and mental harm on Palestinians;
  • The imposition of conditions that are calculated to "bring about physical destruction; and 
  • "[Rendering] life unsustainable" through a military assault on Gaza's healthcare system.

South Africa further argued that there was genocidal intent by top Israeli politicians, including its prime minister and president, who were quoted as having called for the destruction of Palestinians in Gaza in response to the Hamas attack. 

"These are orders to destroy and to maim what cannot be destroyed. These statements are not open to neutral interpretations or, after the fact, rationalisations and re-interpretations by Israel," Ngcukaitobi told the court.

"The statements were made by persons in command of the state. They communicated state policy. It is simple. If the statements were not intended, they would not have been made."

On behalf of Israel, Tal Becker objected in his rebuttal to the court, saying South Africa had "profoundly distorted the factual and legal picture". 

He likened South Africa's submissions as similar to Hamas' rhetoric and accused the South African government of being allies of Hamas. 

"If there are acts that are genocidal, they have been perpetrated against Israel. There are many distortions in the applicant's submissions. But one overshadows all: It is almost as if there is no conflict taking place that threatens Israel's existence," Becker said. 

'Charge of genocide is frankly untenable'

Later, the court heard that South Africa had painted a false picture of Israel's military invasion of Gaza. 

"The applicant tells not only a partial story but a false one. Yes, damage and harm have been caused, but always as a result of Hamas' method of warfare. The charge of genocide is frankly untenable," Israeli justice ministry official Galit Rajuan told the court. 

Israel said the ICJ did not have the jurisdiction to hear the case and that South Africa's request for precautionary measures should be dismissed. 

The court is expected to rule on whether Israel's military operation in Gaza should be halted and humanitarian aid allowed, pending the finalisation of the genocide case. 

While the legal challenge played out in court, a battle of public opinion continues. 

The Israeli government has relied on Google ads to counter a narrative that it is guilty of genocide. 

A search for the "ICJ" results in a sponsored post by the Israeli government titled "Israel response to the ICJ – Israel committed to world law". 

The website this post is attached to carries a video claiming that Israel is doing everything it can to protect civilians from harm. 

"You be the judge," it reads. 

Diplomacy 

The matter has spilt over diplomatically, with Germany announcing on Friday that it would support Israel's defence against genocide claims. 

In response, Namibia said it rejected Germany's support of Israel. 

"Germany cannot morally express commitment to the United Nations Convention against genocide, including atonement for the genocide in Namibia, while supporting the equivalent of a holocaust and genocide in Gaza. Various international organisations, such as Human Rights Watch, have chillingly concluded that Israel is committing war crimes in Gaza," Namibia said in a statement. 

South Africa's legal action against Israel in the ICJ was supported by at least 70 countries around the world. 

The US said South Africa's case was without merit. 

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