Abstract

Excerpted From: Penelope Andrews, Human Rights and Foreign Policy: South Africa's Genocide Complaint Against Israel at the International Court of Justice, 34 Minnesota Journal of International Law 195 (Spring, 2025) (258 Footnotes) (Full Document)

On December 21st, 2023, the South African Government filed an urgent application to the International Court of Justice (ICJ) after Israel's military response in Gaza to the attack in Israel on October 7th in which more than 1,200 Israeli citizens were killed and several hundred were taken as hostages. Hamas and other Palestinian armed groups launched a large barrage of rockets towards Israel, breached the Israeli fence abutting Gaza, and attacked Israeli military bases, civilian towns, and a music festival attended by thousands of young people. Some of these incidents have been referred to the International Criminal Court (ICC) and the Prosecutor at the ICC has issued warrants of arrests against Prime Minister Benjamin Netanyahu, the Minister of Defense Yoav Gallant, and three Hamas leaders. The United Nations Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict issued a report after a visit to Israel and the West Bank in January and February, 2024, stating that widespread sexual violence was perpetrated against women and girls during the attack as well as “in the context of abduction and hostage-taking.”

The Israeli government responded to the attacks and the taking of hostages by launching a military campaign into Gaza, with the express purpose of destroying Hamas and especially its ability to attack Israel as it did on October 7th. The first few days of Israel's military campaign resulted in a number of civilian deaths and injuries, as well as considerable destruction of infrastructure, especially health facilities.

In its Application to the ICJ, the South African government requested that the ICJ address the issue “as a matter of extreme urgency” because of the nature of the rights violations and “the ongoing, extreme and irreparable harm being suffered by Palestinians in Gaza.” After the closing of the Israeli Embassy in South Africa in November 2023, the South African President Cyril Ramaphosa, “condemn[ed] the genocide that is being inflicted against the people of Palestine, including women and children, through collective punishment and ongoing bombardment of Gaza.” In that same statement, the President also condemned the attacks in Israel carried out by Hamas and called for all hostages to be returned.

In light of this historically momentous development, I decided to revisit an issue that I had previously commented on in an op-ed piece, namely South Africa's foreign policy and the question of human rights. That piece had focused specifically on corruption and South Africa's foreign policy, but its major premise was that South Africa had committed itself to a set of human rights principles in its constitution, and had also signed many international treaties, including the major international treaty regarding the eradication of corruption globally. My interest in that piece was to explore the stated reasons for South Africa's human rights actions on the global stage and the constitutional underpinnings which enabled South Africa's actions.

It has now been nearly two years since the Hamas attack in Israel. I cannot recall any international dispute that has aroused more passion, generated greater emotion, rancor and created stronger division among friends, families, and colleagues. In addition, this paper is written against the backdrop of mounting deaths and destruction in Gaza, settler violence in the West Bank, and attacks against Israel from Hezbollah and Iran. Recognizing the complexity and challenges inherent in the Israeli/Palestinian conflict, I approach the topic with trepidation and immense humility.

International law was central to the creation of the state of Israel and Palestinians' resort to international law to vindicate their rights has highlighted both its limitations (“the story of disenchantment”) and possibilities. I situate this article within the broader context of “lawfare” which is defined as the “strategy of using--or misusing--law as a substitute for traditional military means to achieve an operational objective.” Drawing on the South African scholarship of Richard Abel, Michelle Le Roux and Dennis Davis, the “lawfare” I refer to in this instance is the use of law as a substitute for achieving political ends. I interpret the ICJ case as one in which the South African government, the appellant, seeks to appeal to international law to pursue its political ends. In other words, while it is acknowledged that the current Israeli/Palestinian conflict should be resolved politically by the United Nations, with the Israeli government and the representatives of the Palestinian people, in the absence of such a resolution South Africa seeks a legal ruling to halt Israel's ongoing destruction of Gaza.

South Africa's appeal to the ICJ also has the added benefit of conveying a message it wants publicized to the world. It is worth noting the diverse legal team representing South Africa--multiracial, multigendered, multigenerational, and led by its youthful and energetic Minister of Justice-- was viewed with much admiration in many quarters. In South Africa, the legal team signifies the “rainbow nation,” a term coined by the late Archbishop Desmond Tutu. Indeed, on their arrival home from arguing the case before the ICJ, some members of the legal team were “mobbed like rockstars” by members of the public at the airport in Johannesburg, many waving South African and Palestinian flags. From the South African perspective, the narrative that unfolded at the ICJ proceedings, broadcast to the world, was not just about the legal technicalities and legal arguments, but the emotive power of putting Israeli colonization and apartheid under the microscope. It brought into sharper focus the death and destruction of Israel's military campaign in Gaza. In response, Israel also provided its own narrative, emphasizing the brutal attack on its citizens and the need to retaliate forcefully. For many Israelis, the attacks were seen as a second Holocaust. These competing visions and narratives about the meaning of October 7th and its aftermath permitted an airing to the ICJ judges tasked with adjudicating and determining the outcome. The Judges also allowed the events to be shared with people in Israel, South Africa, and around the world who were vested in the proceedings and its outcome.

In this article I address the following questions: What factors motivated the South African government to pursue this momentous action against the state of Israel? In addressing this question, I pay specific attention to the role played by human rights in South Africa's foreign policy. I also give attention to the longstanding connection between the African National Congress (ANC), the prior ruling party, and now, a governing coalition, the Palestinian Liberation Organization, and the longstanding support for the struggle of the Palestinian people for statehood. What was the substance of South Africa's complaint and how did the ICJ respond? What are the benchmarks to assess the observance of human rights in South Africa's foreign policy? In other words, if states commit themselves to a human rights-based foreign policy, as South Africa has done, what parameters can be used to evaluate that commitment?

In pursuing these questions, I proceed as follows: Section II highlights the underpinnings of South Africa's constitutional, legal, and policy framework to explore the motivation for lodging the Application to the ICJ. Section III examines the influence of civil society actors within South Africa to pursue the complaint against Israel, noting the historic ties between South Africa's liberation movements and representatives of the Palestinian people, as well as the Israeli governments' historic support for the apartheid government. Section IV explores the complaint lodged by South Africa and the ICJ's Provisional Order. Section V examines the role of human rights in South Africa's foreign policy and evaluates the consistency in its application since South Africa established a constitutional democracy in 1994.

My conclusion is that South Africa's foreign policy, although publicly (and rhetorically) driven by human rights, is much more opportunistic and politically driven, influenced as it is by the ANC's historical and contemporary political and ideological allies. The case and its outcome may provide the current South African government of national unity the opportunity to once again center the commitment to human rights in a way that situates South Africa as the “moral conscience” of the world.

[. . .]

The South African government intended in its ICJ application to put a spotlight on the death and destruction in Gaza in the face of Israel's insistence on destroying Hamas and the unwillingness of Hamas to release the hostages taken on October 7th. And, as I argue in this article, South Africa sought a legal solution where a political one had proven elusive. The question that surfaces is whether South Africa's Application to the ICJ signals a return to its role as the “moral conscience of the world.” As some have noted:

For the South African government, the case represented a return to its identity--a decision to finally incorporate the best, most distinctive elements of South Africa's post-apartheid political culture into its approach to the rest of the world. South Africa's challenge now is to make the ideas that drove its ICJ case a general policy--one which places principle above a desire to please. This could attract initial resistance by the world's power-brokers. But in the long term, it is the policy that will win the country the most respect--and influence.

In the last election, the African National Congress lost its majority status and was forced to form a government in coalition with smaller political parties. It is unclear at this time whether the ANC's loss of political dominance will ensure that a national unity government will return the country to its human rights ideals, which underpin both the framework of constitutional governance and South Africa's foreign policy.

It would be unrealistic to underappreciate the political priorities and choices that all governments have to confront when conducting foreign policy. These are considerations that the South African government will have to make as well. But in choosing to take the global center stage in the complaint against Israel, South Africa has paved the way to show moral leadership in other contexts. These urgently include the crisis in Afghanistan, Sudan, Ukraine, and elsewhere.

John Marshall Harlan II Professor of Law, Director, Racial Justice Project, New York Law School. B.A. LL.B. (Natal, South Africa); LL.M. (Columbia); PH.D (Honorary, Franklin, Switzerland).