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Some of SA’s greatest critics are part of its legal team against Israel

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Some of SA’s greatest critics are part of its legal team against Israel

10th January 2024

By: News24Wire

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South Africa's legal team in its genocide case against Israel is made up of human rights champions, who have not been afraid to litigate the very same government they are now arguing for - or to challenge South Africa's inconsistent foreign policy.

In a detailed application filed at the International Court of Justice (ICJ) in The Hague, South Africa argues Israel's response to the deadly 7 October attack by Hamas, which resulted in the deaths of 1 200 people and abduction of 240 others, violated the provisions of the Genocide Act. 

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According to the Palestinian health ministry, Israeli's military campaign in Gaza has now killed more than 23 000 people.

South Africa's ICJ application records that at least 7 729 of the dead are children.

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More than 55 000 Palestinians have been injured, including at least 8 663 children, with more than a thousand of them being amputees.

While it has unequivocally condemned Hamas' attack and the abduction of civilians on 7 October, South Africa is adamant that: "No armed attack on a state's territory no matter how serious - even an attack involving atrocity crimes - can, however, provide any possible justification for, or defence to, breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide ['Genocide Convention' or 'Convention'], whether as a matter of law or morality." 

Israel insists its three-month-long military campaign in Gaza has been aimed solely at defending itself from Hamas and has strongly denied its conduct against the 2.3-million Palestinians in the densely populated area could be construed as genocidal.

During a press conference last week, Israeli spokesperson Eylon Levy sought to undermine South Africa's right to present itself as a genuine opponent of genocide, given its failure in 2015 to act on an International Criminal Court (ICC) warrant to arrest then-Sudanese president Omar al-Bashir.

The ICC issued that warrant on the basis there were reasonable grounds to believe that, along with war crimes and crimes against humanity, al-Bashir had committed genocide against the Fur, Massalit and Zaghawa ethnic groups.

Max du Plessis SC, one of four senior counsel representing South Africa in its ICJ case in The Hague this week, knows that case extremely well - having acted for the Southern African Litigation Centre to counter the South African government's argument that Bashir had immunity from prosecution under customary international law because he was a head of state.

The Supreme Court of Appeal agreed and - in a unanimous judgment - found South Africa is "obliged to cooperate with the ICC and to arrest and surrender to the court persons in respect of whom the ICC has issued an arrest warrant and a request for assistance". 

It was this ruling that would have compelled South Africa to arrest Russian President Vladimir Putin, against whom the ICC has issued a warrant for war crimes linked to the alleged kidnapping of Ukrainian children, should he have attended a BRICS conference in South Africa last year.

Du Plessis acted for the DA in the party's successful application for legal confirmation of South Africa's obligation to act on the ICC warrant and arrest Putin. 

During that litigation, it emerged President Cyril Ramaphosa had told the ICC Russia would declare war on South Africa if it arrested Putin.

This did not persuade the court South Africa was not obligated to arrest the Russian president, however.

As an advocate who has litigated against the South Africa government over the same foreign policy inconsistency Israel is now using to question the country's bona fides, Du Plessis has the credibility and prowess to move this case out of the realm of politics - and firmly back to where it belongs: the realm of international law.

Adila Hassim SC will be the first advocate to outline South Africa's application for the ICJ to urgently grant preliminary measures against Israel, which would suspend its military operation in Gaza, pending the determination of its genocide case against the country.

Having started her legal career working as a clerk for late Chief Justice Pius Langa, Hassim is a highly regarded human rights advocate who spent many years representing the families of 144 mentally ill patients who died at the hands of state health officials during the Life Esidimeni scandal.

During an inquest into those deaths, Hassim was fiercely critical of Gauteng government officials who had insisted on moving the patients out of the Life Esidimeni facilities where they had been housed into woefully inadequate NGO homes - where many were shown to have starved to death.

In January last year, Hassim acted for Ramaphosa and his government in resisting the DA's application to have the ANC's cadre deployment policy declared unconstitutional and invalid.

Judgment has yet to be delivered in that case.

Hassim has been outspoken in her defence of gay rights and vocally opposed efforts to ex-communicate members of the LGBTQ community from the Muslim faith. 

She also co-founded Corruption Watch, an organisation focused on taking on endemic levels of corruption within the South African state and supporting the whistleblowers who expose that corruption.

As an advocate, who has not hesitated to defend the rights of the marginalised and oppressed in South Africa, Hassim is perfectly placed to focus the ICJ's attention on the unfolding humanitarian crisis in Gaza - and ask the court to implement measures to urgently address it.

Tembeka Ngcukaitobi SC represented the State Capture Inquiry in its successful application to have former president Jacob Zuma jailed for contempt of the Constitutional Court.

Zuma had defied the apex court's ruling that he must appear before then-Deputy Chief Justice Raymond Zondo and answer questions about his nine years in office - unless his responses to those questions implicated him in specific criminality.

Years before, Ngcukaitobi (representing the EFF) successfully opposed Zuma's bid to block the release of then-Public Protector Thuli Madonsela's state capture report, which had ordered that there be an inquiry into the serious corruption allegations against Zuma and his self-admitted friends, the Gupta family.

A respected author and expert on land rights in South Africa, Ngcukaitobi - like Hassim - has acted as a judge in multiple courts.

He is also a member of the Judicial Service Commission (JSC), which is tasked with choosing candidates to serve as judges in South Africa's courts.

Regarded as the "father of international law" in South Africa, John Dugard is a professor of international law who has previously acted as an ICJ judge.

He has served on the International Law Commission, the UN body tasked with the development of international law, since 1997.

After the outbreak of the Second Intifada in Palestine in 2000, an uprising by Palestinians against Israeli occupation, the UN Commission on Human Rights appointed Dugard to chair a commission of inquiry into the state of human rights in the Palestinian territories.

In a subsequent 2002 report, he would find: "That Israel has legitimate security concerns cannot be denied" and that the country was "entitled to take strong action to prevent suicide bombings and other acts of terror is not disputed". 

"On the other hand, there must be some limits on the extent to which human rights may be violated in the name of anti-terrorism.

"The report concludes that it is difficult to characterise the Israeli response to Palestinian violence as proportional when it results in an excessive use of force that disregards the distinction between civilians and combatants, a humanitarian crisis that threatens the livelihood of a whole people, the killing and inhuman treatment of children, the widespread destruction of property and territorial expansion."

Two decades after he made those findings, Dugard is arguing, again, that Israel's military operations, this time in Gaza, have exceeded the parameters of self-defence and become a campaign of wholescale destruction. 

His influence on South Africa's application against Israel is evident in its painstaking recording of the Arab-Israeli conflict over the decades - and its use of numerous UN reports to document the humanitarian crisis in Palestine.

Dugard is outspoken in his criticism of Israel's human rights abuses and contends "apartheid is alive and well and thriving in occupied Palestine".

"The Israeli security forces engage in torture and brutality exceeding the worst practices of the South African security apparatus. 

"And the humiliation of black people that was a feature of apartheid in South Africa is replicated in occupied Palestine," Dugard stated in an article written for Al Jazeera in April 2019.

The junior counsel representing South Africa are also impressive. 

Tshidiso Ramogale, who has acted as junior counsel for Ngcukaitobi, is a Harvard master's in law graduate. 

Sarah Pudifin-Jones supported Du Plessis during the ultimately successful litigation to force Zuma to comply with Madonsela's orders that he pay back a percentage of taxpayers' money spent on non-security upgrades to his Nkandla residence. 

Lerato Zikalala is a Notre Dame law graduate who worked as a researcher for Constitutional Court Justice Johan Froneman.

There are two external counsel supporting South Africa in its ICJ application.

Vaughan Lowe KC is the most senior academic in the area of public international law at Oxford University and has acted as a judge or arbitrator in multiple international legal disputes.

Lowe also acted for Palestine when, following a request for an advisory opinion by the UN General Assembly, the ICJ found in 2004 a West Bank barrier built by Israel violated international law.

Blinne Ni Ghrálaigh KC started her career by acting as a legal observer at the Sunday Bloody Sunday inquiry in Northern Ireland, which investigated the shooting by British soldiers of 14 unarmed Irish civil rights protesters on 30 January 1972.

She would later represent many of the families of those killed in the massacre.

Ghrálaigh has acted in genocide litigation before, appearing on behalf of Croatia in the ICJ.

She also went on a legal fact-finding mission to Gaza in 2009 immediately after the Israeli military's Cast Lead operation. 

"The level of devastation and trauma I witnessed in Gaza is hard to put into words.

"It was one of the experiences of my professional life that has marked me the most," she would later state in an interview.

By choosing the lawyers that it has to represent at the ICJ, South Africa is clearly aware of the critiques it will face in bringing this litigation - particularly given its well-documented failure to arrest al-Bashir and its awkward and protracted handling of the Putin arrest saga. 

Rather than opting for lawyers who have previously defended that conduct, the South African government has appointed some of its greatest and most effective critics to make its genocide case against Israel.

While Israel has contended South Africa's application is meritless, its appointment of international law expert Professor Malcolm Shaw to argue its response to that case arguably demonstrates that - at the very least - it is not underestimating the lawyers who will argue it.

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