The Republic of South Africa Present to The World Court

An historic moment

Jan 12, 2024

Published: 2024-01-12

Preface

I have a special friend who is a lawyer. Our relationship has grown over the last year due to time spent tenderly on shared projects. Her offering of her experience and knowledge of sewing was the first. Baking of bread remains a second.

An article by Marjorie Cohn about which a post was sent to Chat included the time and a link to UN Web TV, the UN broadcasting service which would internationally broadcast the proceedings of International Court of Justice's hearings of the submission from the Republic of South Africa (RSA) charging Israel with not upholding its responsibilities as a signatory to the Convention on the Prevention and Punishment of the Crime of Genocide [the CPPCG, or the 'Genocide Convention'].

I felt that I must listen to the proceedings, that it would be an historic event. Naturally, along with the service to this community provided by the comment to Chat, I notified my legal friend directly. As a lawyer this would also be an historic opportunity for her too.

The Case and Moment

It was an historic experience. The presentation of RSA's case, plea, was a true example of 'the whole' being wildly in excess of 'the sum of its parts'.

The RSA understood the solemn nature of what was being done, and took most seriously their responsibilities as described in the CPPCG of which both they and Israel are signatories and share their obligations. RSA's oral arguments before the ICJ were bookended by a description of what was to come, their arguments and objectives, and then what had come to reinforce what they had, in my view, achieved. The center was a sequence by the most eminent lawyers, each of which took charge of one component, one argument. I think I counted 3 Kings' Council, one member of the RSA's Supreme Court acting as a advocate, and a Dean of Law at a respected RSA University. There were six.

I did not see them. I was disinterested in the visual. I wished to hear them. Their voices were female and male. The accents were British and South African. I could sense that their ethnicities were Caucasian and African. In the breadth of expertise which RSA placed before the court was the core of the reason that the CPPCG itself exists. The RSA has transcended the racism which wracked its past and stood proudly represented before the World Court resplendent with the best of the best of its barristers actually embodying why we care about, no demand, that the CPPCG exists, is attended to and is upheld!

Former US Federal Court Judge Napolitano had stated on his Judging Freedom show how the 84 page complaint was among the most detailed he'd ever read. I now understand why.

Almost at the outset, South Africa's legal luminaries laid a defence. They would not pollute the court by presenting horrific imagery which has been beamed into the world's mobile phones. Should, in Israel's defence it's representatives make a mockery of the court by converting it into a media spectacle rather than giving it the respect which it requires to act as such an august legal body, then the court will already know on which side South Africa sits.

They did not need the imagery. The words themselves were shocking enough. 80% of the people on our beautiful planet who are on the edge of starvation at the moment are in Gaza. Every day multiple children have one or both legs amputated without anesthesia. All of this, and more, is being deliberately caused by the state of Israel.

The argumentation was clear, solemn and precise and despite the horror of the subject matter was delivered with the calm, controlled speech which a court demands and respects. It began by describing the actions performed by the national military organizations of the state of Israel as ordered by the state's leadership. This was followed by quoting the President, Prime Minister, Minister of Defense, Minister of Infrastructure and other members of the Israeli Knesset to demonstrate that there can be no mistake as to the intent of the state's leadership. Then the words of Israeli soldiers were heard by the court echoing the exact genocidal intention uttered by Israel's political leadership to connect the intention with the actions taken. These first two components laid a devastating case to which I can see no moral or legal escape.

While the foundation, the core of the CPPCG is moral, the court's task is legal. It must assess whether Israel is meeting the legal obligations to which it bound itself when it signed the convention. We, to understand the case made by RSA must also steel ourselves to focus on the words of the convention which define the obligations. The intention of the state is key, for the language utilizes intention and it was the state which signed the convention. This is why these first two parts of South Africa's argumentation were so legally devastating.

The next section deals with jurisdiction. Does the court have the authority to act is the question being addressed. To resolve this a rather boring but essential sequence of points are made to confirm beyond any doubt that a dispute exists between the states of the Republic of South Africa and Israel as to their obligations under the CPPCG. During this phase RSA began to inform non-legal experts of a vitality of the treaty. All states are bound to a common objective, to prevent genocide and prosecute its perpetrators. Just as Israel is bound to make every effort to prevent actions of a genocidal nature and to prosecute those responsible, so is the Republic of South Africa. RSA was meeting its legal obligations by bringing this case to the court. The dispute exists, and each party in the dispute has acknowledged receipt of diplomatic documents which formally state the nature of the dispute. With this check box meticulously ticked off, the RSA's august legal team moved on.

The fourth part was by Professor du Plessis. It was very much about the responsibilities, obligations by which both RSA and Israel are bound. I found his oratory exquisite. It was delicate and piercing.

The next discipline which we must adopt, is to understand what the RSA is requesting of the court. It asks for the court to issue provisional measures. These amount to the court finding that there is serious risk of imminent and irrepabable loss of the rights to be protected by the CPPCG, namely the collective and individual right to exist.

RSA was at pains to quote to the court its own jurisprudence in issuing these types of provisional measures in previous cases. Those quoted included the conflicts during the dismemberment of Yugoslavia, between the Rohinga and Burma, between Russia and Ukraine and two conflicts in Africa. In summary, the RSA's representatives were arguing that the case already presented to the court exceeded the scale and risks which were previously sufficient for the court to agree to issue provisional measures.

Before the bookended summary of that which had been presented, the RSA's last legal representative drove to the heart of the case and against likely arguments to be delivered by Israel in its legal defense. One could feel that this advocate was playing both to the international court and that of international public opinion.

He, with rich voice and a British accent, reminded us all that there is no case of "defense" for a state when being aggressed by persons resident on lands which it is occupying. Even more forcefully, he reminded us all that the crime of genocide is absolute. It is timeless, unconstrained geographically and can never be superseded by any other condition. Genocide is genocide, in a time of peace or war. These other conditions are superfluous, irrelevant detritus to which both courts should pay no attention whatsoever.

The court was gently warned that other legal experts saw this forthcoming preliminary judgment as being a potential doom of international law should the court not be able to uphold the CPPCG and defend the rights of Palestinians in Gaza against the scourge of genocide which they are suffering.

I took to bed being so proud of the Republic of South Africa, for not only bringing the complaint to the court, for honoring their obligations under the Genocide Convention, but also for the manner in which they did so.

Israel can either turn up or not. It cannot escape its obligations. I will suffer hearing their arguments as a form of penance to counter the privilege and joy of hearing RSA's.

We all know that Israel has no moral case. I now believe that they have no legal one either.

Republic of South Africa, you have honorably represented yourselves and the rest of the world. This crowning achievement will sit proudly beside your nations' name forever more.

Afterword

Just as each South African advocate declared their honor to represent the state of the RSA and to appear before the ICJ, I too am honored to be able to write and publish about this historic event. I thank you for your time reading these words.

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Sources

RSA’s submission to the ICJ, UN/ICJ.

Convention on the Prevention and Punishment of the Crime of Genocide, UN, adopted 1948-12-09

Explainer: What is the Genocide Convention?, UN, 2024-12-11

THE HAGUE – The International Court of Justice…, UN TV, 2024-01-11

South Africa presents its case against Israel at the ICJ, SABC News, 2024-01-11