1.  Background Information

International media all over the world have reported that South Africa has outlined genocide cases against Israel at the International Court of Justice (ICJ) at The Hague. The hearing began on 11th January 2024, with a reading of South Africa’s case against Israel and the demand that Israel should immediately suspend its military operations in Gaza. South Africa reminded the court that more than 23,000 Palestinians have been killed by Israeli attacks in the Gaza Strip since October 7 and continue to perpetrate atrocities in Gaza. 

Countries that have formally backed South Africa's case against Israel so far are Bolivia, Brazil, Colombia, Jordan, Cuba, Malaysia, the Maldives, Turkey, Indonesia, Venezuela as well as the 57-country Organisation of Islamic Countries (OIC), and more are likely to declare their support. The worry to many individuals is that African states remain silent and adamant to supporting the action.

In this development, many questions have arisen concerning both substantive and procedural issues on which I would like to express my opinion from the international legal perspective. However, in the meantime, I will limit the discussion to only two very important questions people are asking, with the aim of educating and inviting views from others. The two questions I picked for this purpose are: Why is it South Africa that is taking up the genocide case against Israel? Why are African states not backing South Africa in its arduous quest for justice?

2.  The Legitimacy of South Africa's Action

Many people are asking, inter alia, the question, why is it South Africa that is taking the case to ICJ and not any other State in Asia, the Arab world, Europe, or Palestine itself, which is the victim of the alleged genocide when it could invoke the rights of an injured state.

The legal definition of 'genocide' contained in Article II of the Convention describes genocide as a crime committed with the intent to destroy a national, ethnic, racial, or religious group, in whole or in part. It does not include political groups or so-called “cultural genocide."

Over the centuries, states have developed through their practice, rules on what kinds of national jurisdiction are acceptable under international law. These rules view the permissible scope of a state's jurisdiction over persons or conduct as a futon of the state's linkages with those persons or conduct. The stronger the link, the more likely the exercise of jurisdiction. 

One particularly important permissible basis of a state's jurisdiction under international law is what is known as the 'universality principle'. Under this principle, a state may exercise jurisdiction over the conduct outside its territory if that conduct is universally dangerous to states and their nationals. The justification for this principle is that any state must be permitted to punish or cause to punish (by the international court) such acts wherever in the world they may occur. (In the present case, not necessarily occurring in South Africa or its nationals being involved), as a means of protecting the global community, even in the absence of any link between the state and the parties or the acts in question. 

Universal jurisdiction traditionally was asserted over THE CRIME OF PIRACY ON THE HIGH SEAS and persons engaged in the SLAVE TRADE. 

Later, particularly after the Second World War, perpetrators of GENOCIDE, CRIMES AGAINS HUMANITY, and WAR CRIMES also became subject to universal jurisdiction on the basis of a convention. In addition, (though not generally recognised) various terrorist acts may be subject to universal jurisdiction pursuant to international treaties (agreements) and perhaps even customary international law (for example, under the "Convention for the Suppression of Unlawful Seizure of Aircraft, 1970"). Such agreements provide that parties are obliged either to extradite offenders or submit them to prosecution, even if such offenses are not committed within the party's territory and do not involve its nationals.

A close analysis of national laws of states worldwide indicates that very few states have national laws that assert jurisdiction solely based on the universality principle. For instance, states including South Africa, Ghana, Nigeria, United States (US), and many European states have enacted a statute criminalising genocide.

Notwithstanding the fact that Ghana's Parliament on 25th July 2023, abolished the death penalty for all ordinary crimes (including murder, genocide, piracy and smuggling of gold and diamonds and attempted murder in prison) by passing a private member's Bill to amend the Criminal Offences (Amendment) Act, tabled by the MP for Madina, Francis Xavier-Sosu. Capital punishment in South Africa was abolished on 6 June 1995 by the ruling of the Constitutional Court in the case of S v Makwanyane. So, abolishing capital punishment does not negate or nullify the effect of the universality principle. 

Yet, a distinction can be drawn in the statute of states regarding the effect of the principle.

The statute of the US, for instance, is limited to offenses that occur in the US's territory (under territorial jurisdiction) or committed by US nationals (nationality jurisdiction). 

On 11th December, 1948, the Convention on the Prevention and Punishment of the Crime of Genocide was opened for signature. Ethiopia became the first state to deposit the treaty on 1 July 1949. Ethiopia was also among the very few countries that incorporated the convention in its national law immediately, as early as the 1950s. Ghana acceded to it on 24 Dec. 1958, South Africa, on 10 Dec. 1998, and Nigeria, on 27 July 2009. The treaty came into force and closed for signature on 12 January 1951. Since then, states that did not sign the treaty can only accede to it. As of December 2019, 152 states had ratified or acceded to the treaty.

The dominant structural feature controlling a state's exposure to the International Court of Justice (ICJ) is that states cannot be sued before the ICJ without their consent (circumscribed jurisdiction), though some states including the US and Russia were adamantly opposed to it. However, many other states backed down. 

Consequently, consent to the jurisdiction of the court does not exist merely by virtue of a state being a party to the ICJ's Statute. A separate consent of one kind or another must exist. This requirement of state consent is the reason most of the 193 states of the world have never appeared before the court in a contentious case, even though they are parties to the ICJ's Statute. That is why the ICJ is regarded as an important but not dominant player in the field of international dispute resolution. 

Under the 'optional clause' of the CIJ's Statute, state parties may make a unilateral declaration that "they recognize as compulsory ipso facto and without special agreements in relation to any other state accepting the same obligation, the jurisdiction of the court in all legal disputes" involving issues of law or facts governed by rules of international law. 

Most states have not accepted the 'compulsory jurisdiction' of the court. Out of 193 member states of the UNO, only 73 (as of 2023) have accepted the court's compulsory jurisdiction, including Cameroon, Egypt, Gambia, and Nigeria. It implies that if a non-recognising state, such as the US, Ghana, South Africa, or Israel brought a case under Article 35(2) of the ICJ's Statute, those states accepting the compulsory jurisdiction of the ICJ could decline to accept appearance unless under special alternative arrangements. 

Palestine has been a non-member observer state at the United Nations since November 2012, and the ICJ proceedings are open to states only. As such, admissibility by the court regarding Palestine could raise difficult questions for the court if to bring Israel before it.

Notwithstanding that, a state that is not a member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.

In fact, Israel is not a party to the Rome Treaty that established the International Criminal Court (ICC) and does not recognize its jurisdiction, so the impact of its investigations is unclear. But both Israel and South Africa are signatories of the Genocide Convention, which paved the way for the present case.

From the foregoing discussions, it is reasonably and logically clear that South Africa can invoke the universality principle against Israel, and its action does not undermine the legitimacy of the international legal rules as far as the alleged genocidal conduct and responsibility can be successfully established. 

In practice, states appear reluctant to invoke universal jurisdiction, perhaps for fear that their courts will become a magnet for actions seeking atrocities committed worldwide. Exceptionally, the boldness of South Africa to take such an action may be linked to other reasons as indicated in submissions of some of their authorities, as will be discussed below. But in any case, its action must be regarded as "a test for humanity."

3.  Africa's Divided Position

African countries’ positions on this issue are based more on political and geopolitical interests, from all indications.

The ongoing Israel-Hamas conflict in the Gaza Strip has left the African continent deeply divided, with some countries choosing to remain silent while some have openly shown solidarity with either Israel or Palestine.

Kenya, Ghana, and the Democratic Republic of Congo are some of the African countries whose leaders have shown support for Israel very early despite growing global condemnation.

“Kenya joins the rest of the world in solidarity with the State of Israel and unequivocally condemns terrorism and attacks on innocent civilians in the country,” President William Ruto wrote on Oct 7, 2023, after Hamas launched its surprise attack on Israel.

“There exists no justification whatsoever for terrorism, which constitutes a serious threat to international peace and security,” Ruto added.

In an Oct. 8 statement, Ghana’s Foreign Ministry said the country “affirms its support for Israel’s right to exist and defend itself,” while also calling on “the Israeli government to exercise restraint in its response to Hamas attacks.”

On the other hand, South African President Cyril Ramaphosa has pledged his support and solidarity with the people of Palestine.

“All of us standing here pledge our solidarity for the people of Palestine. We stand here because we are deeply concerned about the atrocities that are unfolding in the Middle East,” he said in an address at a meeting of the ruling African National Congress (ANC) party in Johannesburg.

Hundreds of people in different cities in South Africa have also held protests to denounce the continued Israeli occupation of Palestine.

Many people in South Africa say they support the Palestinian struggle because they believe what is happening to Palestinians under the Israeli occupation is similar to what they experienced in the apartheid era.

Algeria, another powerful African nation, has also strongly condemned the Israeli attacks on Gaza and expressed solidarity with Palestine.

Its foreign minister expressed concern over Israel’s attacks on Gaza, saying they violate international humanitarian law.

The divisions, therefore, should not be a surprise to anyone. Louis Gitinywa, a Rwanda-based political analyst, and constitutional lawyer, said it is not a big surprise that the Israel-Palestine issue has divided the continent because African nations do not have a common stance when it comes to foreign policy.

“African countries have taken different positions on the matter based on their political and geopolitical interests. This is nothing new. States have interests they do not have friends,” he told Anadolu Agency.

The only African country that has a long and strong historical attachment to Israel is Ethiopia, but it has yet to make clear its stance on the current situation. It is significant that two big and economically strong African countries, South Africa, and Algeria, have expressed support for Palestine.

Lesiba Teffo, a professor at the University of South Africa, said, "Some African countries supporting Israel lack an appreciation of political history and political consciousness." “When you look at the history of the establishment of Israel, you will find it difficult to understand why some African leaders, most of whom are from countries that were colonized and exploited for the benefit of the West, would themselves today support the oppression of Palestinians, who are in situations that they were once in,” he told Anadolu Agency.

In my view, these statements need critical analysis in the face of continuity and change in the foreign policies of African States after independence, which may override their geopolitical and historical consideration to a greater extent.

It is possible that some African countries supporting Israel are safeguarding their economic interests, while those who have maintained silence, or a neutral stance do not want to upset their allies. 

Unfortunately, we have some countries in Africa whose budgets cannot be passed in their parliament because they depend on foreign donations from the West, and they cannot turn against the West by standing against Israel.

Buchanan Ismael, a political scientist at the University of Rwanda, pointed out that some African countries depend on Israel for things such as military technology and weapons, which in my view is true and opportunistic in nature. It shows the inconsistency in the foreign policy of African states. In my preliminary assessment based on the Bosnia and Herzegovina v Serbia and Montenegro judgment [2007] with the application of the Convention in similar genocide cases by ICJ, I think South Africa has a case and I wonder what arguments Israel holds. However, the question is enforcement of the decision if it is in favour of South Africa. 

4.  Conclusion

Many people are afraid that the personal biases of the judges and the pressure or influence exerted upon them by the US will undermine a just outcome. It is important to clarify here that once a state is exposed to ICJ decision-making, other structural features help assure states that their concern will be heard and understood. In this regard, a key structural feature concerns the way the fifteen judges are placed in the court.

On one hand, the de jure procedure entails a concurrent election of judges by the two principal organs of the UN (the General Assembly and the Security Council), based on their nationality (ICJ Statute, art 2, 4(1) and 8). While judges are precluded from participating in cases in which they were previously involved (which can have the effect of preventing judges from sitting in some cases involving their own states), there is no absolute bar to a judge sitting in a case involving a state of the judge's nationality. On the other hand, no two judges may be of the same nationality.

If the US truly exerts its influence in the outcome of this case as believed by some observers, this could be detrimental for both Israel and the US. The global south may realign itself with

China and Russia. Already, fewer, and fewer countries fear the US and Israel. As much as Russia has demystified NATO, Israel cannot easily defeat Hamas, as Hamas is the ideological symbol of Palestinian resistance. Let us wait for the outcome of the court case as the world continues to witness the unceasing war. 

This piece of work is just the beginning of the broader discourse and will continue as matters unfold.

KOS/12/01/2024