Analysis: For South Africans, the ICJ Case is a “Reawakening”

By | Feb 27, 2024

When South Africans compete—and win—on the world stage, a crowd assembles at Johannesburg’s O.R. Tambo International Airport to offer a heroes’ welcome. Just five months ago, hundreds gathered there to catch a glimpse of Springboks Captain Siya Kolisi parading rugby’s Webb Ellis Cup on South African soil for a record fourth time. But the well wishers thronging the arrivals area on January 14 weren’t there to greet a team of sports stars. The group of mostly pro-Palestinian activists came to thank members of South Africa’s legal team as they returned home from delivering initial arguments at the International Court of Justice (ICJ).

South Africa had filed a suit in the ICJ on December 29 alleging that Israel’s actions in Gaza contravened its obligations as a signatory to the 1948 Genocide Convention. In the West, the case sparked outrage and confusion from the outset, prompting U.S. Senator John Fetterman’s remark that the Rainbow Nation ought to “sit this one out.” In the wake of the court’s January 26 provisional ruling that Israel must “take all measures” to avoid genocidal acts, South African President Cyril Ramaphosa said the Republic was “vindicated,” a sentiment echoed especially by young South Africans disaffected by electoral politics but eager to see the country punch above its weight. Of course, not all South Africans see the case as their moment in the sun, with most Jewish South Africans and Christian Zionists objecting to the suit. But many in South Africa’s legal community tie the suit’s popular appeal to President Ramaphosa’s efforts to mend his predecessor’s abrogation of international norms, arguing that the ICJ suit speaks to how South Africa is rediscovering itself and its role in the world by way of constitutional law.

“I think this moment has been a reawakening of the South African constitutional culture, the idea of a turn to the rule of law and legal institutions to resolve an intractable problem,” says South African legal researcher Mbekezeli Benjamin. “It really is South Africa leading the charge in terms of trying to uphold the rule of law at the international level and using those institutions. And it is not surprising, of course, that the president [in his State of the Nation address] is turning to the language of the constitution, of the rule of law, because those are concepts that his predecessor had really veered away from.”

After apartheid ended in 1994, nation-building in the new South Africa largely hinged on the promises of the explicitly nonracial 1996 constitution. A line from its preamble, “South Africa belongs to all who live in it, united in our diversity,” is often read like a benediction, reifying the constitution’s positive obligations on the state to confront discrimination in all its forms. There is a relatively low threshold for citizens to bring cases with constitutional implications to the country’s powerful judiciary, and South Africans pride themselves on the constitution’s power to deliver leaps in human rights ahead of its time at home and abroad, as it did with same-sex marriage in 2006. 

Ramaphosa’s predecessor, Jacob Zuma, served as president from 2009 to 2018 and was known to sometimes flagrantly disregard the constitution, leaving office with countless corruption scandals and illiberal foreign policy foibles in his wake. Zuma’s skepticism of Western-led institutions such as the ICJ prompted him to campaign for African states to withdraw from the international legal framework altogether. Zuma ignored an International Criminal Court (ICC) warrant against Sudanese President Omar Al-Bashir for alleged crimes against humanity related to the genocide in Darfur by refusing to arrest him during a 2015 visit to South Africa, a violation of the Rome Statute, which requires signatories to adhere to ICC warrants.

Russian President Vladimir Putin meeting with South African President Jacob Zuma on 4 September 2017

Former South African President Jacob Zuma with Russian President Vladimir Putin in 2017. Photo credit: Пресс-служба Президента России via Wikimedia Commons.

Benjamin credits Ramaphosa’s government with some course correction. Just last year, Ramaphosa’s administration avoided a repeat of the Al-Bashir incident by convincing Russian President Vladimir Putin, who also has an active ICC warrant against him, not to attend a summit of leaders of BRICS (a grouping of emerging economies led by Brazil, Russia, India, China and South Africa)  in Johannesburg. But for Benjamin and others, the ICJ suit represents more than active participation in the international legal system, it’s a step toward reclaiming South Africa’s sense of moral clarity. 

“One of [democratic South Africa’s] founding myths,” says constitutional law professor Pierre de Vos, “was that it is overcoming the past, overcoming injustice, standing on the side of what is just and right. President Mandela said that his policy on international relations will be based on human rights, about principles of justice, and so on.” 

De Vos noted that in recent years,, the South African government did not reliably side with the “vulnerable and marginalized,” adding that the case could be read as a “surprising exception” to that trend. “That’s maybe why many South Africans have rallied behind at least this case, if not behind the government,” de Vos theorizes.

Benjamin says that founding myth, and this case in particular, has its roots in a century-long tradition of justice-minded South African lawyering. He looks at the activist origins of today’s African National Congress (ANC)—Mandela’s party, which has governed South Africa since independence in 1994—as offering a framework for how to chip away at an apartheid state from within. 

Human rights lawyer George Bizos, who died in 2020, made a career out of wielding the apartheid government’s limited civil rights protections in favor of Black South Africans. Bizos helmed Johannesburg’s Legal Resources Centre—an incubator of legal activism —and mentored several of the lawyers representing South Africa at the ICJ. “[South Africa’s] rich history of lawyering for oppressed people came from there … and that’s also why a lot of us who were in South Africa were really not surprised by [the ICJ suit],” Benjamin said. “We saw it as a natural progression of South African lawyering that goes back almost 100 years.”

De Vos added that Westerners who find South Africa’s case arbitrary don’t appreciate South Africans’ patriotic imperative. “I don’t think they understand how shocking it is to the rest of us, what is happening in Israel,” de Vos says. “I am surprised by people I speak to who are not highly political, who are maybe not left wing in any case, and how upset and shocked they are about what Israel is doing. So, there is a powerful thing in our society, and how we read or many of us read what is happening, that is difficult to explain if you are a consumer of CNN and the BBC.”

George Bizos

Celebrated South African lawyer George Bizos in 2014. Photo credit: Aya Chebbi via Wikimedia Commons.

Consumers of CNN, the BBC, or the SABC (which beamed trial highlights on primetime) can likely count on Gaza coverage for the foreseeable future. But the sheer scale and pace of this, or any, ICJ case, means that headlines from The Hague might be few and far between in the coming months and years. Adjudication on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip, as the case is officially known, could very well come years after the war in Gaza ends. 

Even so, a judgment in 2026 or 2027 stands to shape legal precedent internationally and in South Africa, whose judiciary is renowned for its “deep acculturation” of the role of international law, says Stanford Law Professor Allen Weiner.

On the more immediate horizon, the court will have to consider the legal theory South Africa relied on to bring the case, says Weiner, who once served as the US Embassy’s legal counsel in The Hague. That theory, erga omnes, stipulates that all states have a stake in matters of importance to the international community. In this case, Weiner cited the obligation not to engage in genocidal acts, which all states owe to others as signatories to the Genocide Convention. The theory has stood at least twice, with The Gambia suing Myanmar for alleged violations of the genocide convention in 2019, and Canada and the Netherlands suing Syria for allegedly violating the Convention Against Torture last June.

After the ICJ’s provisional ruling, the ball is now in Israel’s court, where procedurally it is expected to make a statement of defense. Weiner anticipates that Israel will not immediately address allegations of genocide, but instead bring a jurisdictional objection. This can take three to six months, after which South Africa will likely have three to six months to make its case for jurisdictional grounds. After several more rounds of exchanging documentary statements of defense, which Weiner says, in extreme cases, can amount to “linear feet of shelving,” the court will issue a judgment on whether Israel has committed genocide in Gaza.

If found guilty, Israel, as a UN member and a signatory to the Genocide Convention, would face a binding legal judgment. Weiner explains that while compliance has generally been good, he is concerned that as the court hears more politically sensitive cases, non-compliance could become an issue. Though Weiner says this has never happened before, Iif Israel were to disregard an adverse ruling, the matter could be sent to the UN Security Council, where any of the council’s permanent members (France, the UK, the U.S., China, and Russia) could issue a unilateral veto. After that, only “horizontal compliance,” such as sanctions, would be left on the table.

But in South Africa—and almost certainly in Israel—any such eventualities are hardly top-of-mind. Polls suggest the ANC stands to lose its outright majority in this year’s national elections for the first time since the end of apartheid. Some have accused the party of bringing the suit in order to drum up eleventh hour support, but considering that nearly all of the lawyers representing South Africa at the ICJ have argued cases against the ANC government, the suit doesn’t seem like a straightforward election gambit.

“I think the lawyers are all part of this case as a matter of principle, a matter of justice,” de Vos says. “And there are definitely people in the ANC government who passionately believe also that this is a matter of justice.”

Benjamin says many of the “born free” generation (those born after 1994) are seeing the government live up to its constitutional promises for the first time, but that won’t necessarily translate to support for the ANC at the ballot box. Regardless of how Mandela’s party fares in May, its leaders will no doubt point to the ICJ suit and say the ANC’s electoral swan song was delivered on moral high ground.

Top image: Left: Pro-Palestinian Street art in Cape Town, South Africa. Photo credit, John Besche. Right: South African president Cyril Ramaphosa. Photo credit, Kremlin, via Wikimedia Commons.

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