A preliminary analysis of South Africa's role in resolving the Gaza conflict through the ICJ: A legitimacy theory perspective

Reflections on BDS

This article uses the history of partition to assess when self-determination became a rule of customary international law prohibiting partition as a method of decolonization. In so doing it revisits the partitions of Indochina, Korea, India, Palestine, Cyprus, South Africa, and South West Africa, and explains that UN practice underwent a transformation when the UN General Assembly opposed the United Kingdom’s partition proposals for Cyprus in 1958. Two years later, the UN General Assembly condemned any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country in Resolution 1514 (1960). The illegality of partition under customary international law was raised during the second phase of the South West Africa Cases (1960–1966) in respect of South Africa’s homelands policy, but the International Court of Justice (ICJ) infamously did not address the merits of those cases. The illegality of partition was also raised in the arbitration between the United Kingdom and Mauritius over the establishment of the British Indian Ocean Territory in 1965. Like the ICJ in the South West Africa Cases, the Arbitral Tribunal decided that it did not have jurisdiction to address the legality of the British excision of the Chagos Archipelago from Mauritius, even though the legality of the excision was argued at length between counsels for Mauritius and the United Kingdom in their oral pleadings and written statements. However, in their joint dissenting opinion, Judge Rüdiger Wolfrum and Judge James Kateka expressed their opinion that self-determination had developed before 1965, and that consequently the partition was unlawful. This paper agrees that selfdetermination prohibited the partition of Mauritius to establish the British Indian Ocean Territory, a new colony, in 1965 although self-determination probably did not emerge as a rule of customary international law until the adoption of the human rights covenants in 1966, after the excision of the Chagos Archipelago in 1965, but before the passage of the Mauritius Independence Act in 1968.

Brief Synopses of New Arabic Language Publications

The international litigation over South West Africa, and the judgment which the International Court of Justice (ICJ) eventually handed down on July 18, 1966, have important implications for both international law and international politics. South West Africa, a former German colony, was placed under mandate at the end of World War I. Ethiopia and Liberia, both former Members of the League, asked the ICJ to confirm that South West Africa is a territory under Mandate; that South Africa retained the obligations under the Mandate and under Article 22 of the League; and that the United Nations was entitled to exercise the supervisory functions of the League in relation to the mandated territory. In addition, the ICJ was invited to go beyond its Advisory Opinions, and to find that South Africa had violated its obligations under the Mandate through, inter alia, introducing apartheid, establishing military bases in South West Africa, and refusing to submit reports and transmit petitions. South Africa denied that the Court had jurisdiction to examine these claims.

In January 2024, a case brought by South Africa against Israel occupied the attention of the International Court of Justice (ICJ). South Africa has invoked the Convention on the Prevention and Punishment of the Crime of Genocide, accusing Israel of carrying out genocidal acts during its military operations in Gaza, following the Hamas attack on 7 October 2023. Key charges include direct commission, complicity, and failure to prevent genocide. The ICJ responded to South Africa's request by issuing precautionary measures, without however ruling on whether genocide effectively occurred. These measures are intended to prevent further damage and preserve evidence. Specifically, Israel was instructed not to take actions that could aggravate the situation or jeopardize the resolution of the conflict, and to provide periodic reports on actions taken in response to the Court order. This legal provision is based on the "plausibility" of the accusations, a preliminary stage of the legal process which does not require conclusive proof, but only a sufficient indication that the accusations may be founded. The decision highlighted the complexity of the definition of genocide and the difficulty in demonstrating specific intent, which is essential for a final ruling of genocide under the Convention. International reactions have been polarized. Israel rejected the charges, citing the need to defend its sovereignty and national security against acts of terrorism, while various Palestine supporters interpreted the decision as recognition of the severity of Israeli operations in Gaza. The outcome of this case will not only influence international relations and the global perception of international humanitarian and human rights law but could also set an important precedent in the legal handling of genocide allegations. The next phase of the ICJ proceedings, which will include a more detailed examination of the evidence and legal arguments, will be crucial for the future of relations between Israel and the international community, as well as for the very concept of state responsibility in armed conflicts. In this survey we’ll try to examine whether the behavior of Israeli military forces might have conducted operations or actions falling within the hypothesis of genocide as provided for in the UN 1948 Convention, object of the legal dispute.

T | 1HE South African Government's mandate in South West Africa has been a subject of discussion at the United Nations for twelve years, and the International Court of Justice has pronounced three advisory opinions about it. Now Britain, the United States, and Brazil have agreed to form a Good Offices Committee I to try, with South Africa, to find a formula agreeable to all concerned that will accord 'international status' to South West Africa. Behind all the political and legal dispute lies a long history, in which Western standards of international law and justice have been put to the test. The tribes of South West Africa, some 330,000 people, live in a land about the size of France. The Herero, Nama, Berg Damara, and Bushmen who once inhabited the southern part of the country are today either living in eight separate reservations, requiring passes to go from one to another, or are segregated in 'locations' in towns. Their menfolk work on the white man's farms and in his mines. It has been so with them for many years. The African inhabitants of South West Africa have experienced both the harshness of German rule and the severity of the South African administration's segregation policies. Their story illustrates the growth of the concept of accountability to an international authority in a period which has seen two World Wars, the birth and defeat of Nazism in Germany, and the rise of Communism in one of the great underdeveloped countries and its spread through a large part of Eastern Asia and Europe. The fate of all these peoples is, humanly speaking, in the hands of the United Nations. For twelve successive years a member State, South Africa, has refused to submit a Trusteeship Agreement for the administration of this territory under the United Nations, as all other nations have done which held a territorial Mandate under the League of Nations. The issue is not merely a legal one. It is no mere abstract point of law whether South Africa has an obligation under the Mandates Treaty of the League or under the Charter of the United Nations. Whether the League Mandate 1 The Good Offices Committee established by the United Nations at its Twelfth Session (A/RES/i I43 of 25 October I957) consists of the following representatives, appointed by the Governments of the United Kingdom, the United States, and Brazil: U.K.: Sir Charles Arden-Clarke, formerly Resident Commissioner in Bechuanaland and first Governor General of Ghana; U.S.A.: Mr Walter N. Walmsley, Deputy Assistant Secretary of State, Bureau of International Organization Affairs, State Department; Brazil: Sr Vasco T. Leitao do Cunha, Ambassador to Cuba. 3I8

This article focuses on two examples of the agency of African people in the South West Africa Case, in which Ethiopia and Liberia brought South Africa before the International Court of Justice in the Hague in 1960. ‘African’ here refers both to diasporic and continental Pan-African organisations, and to individual citizens (of all races) in African countries. The paper seeks, first, to bring Pan-African political history together with the international legal history of the Case. Second, it supplements the analysis of legal manoeuvres at the international level with a fuller backstory about the strategies of South Africa's legal team in the Case, based on correspondence between Prof. Andrew Murray of the University of Cape Town and the South African lawyers defending South Africa's conduct in then-South West Africa. Overall, the article seeks to assign a more prominent role to Africans in a story about the spread of apartheid through southern Africa – a story which ironically often focuses more on the United Nations, Europeans and Americans than it does on South Africans and Namibians.

In South Africa's apartheid the United Nations has met with its own antithesis. For, apartheid repudiates almost universally everything that the United Nations stands for. It is not merely a “form of racial discrimination,”1 it is also a system that permanently denies, “through laws, administrative decrees and practices any…role for the 19 million Blacks (in South Africa) and confers on the 4.5 million Whites a monopoly of economic, political and social power,”2 Such a system, as stated by the International Court of Justice on the Namibian issue, “is a violation of a norm, or rule, or standard of the international community.”3 And, as the apartheid regime has over the years grown more aggressive both in its domestic and external policies, the world community has come to increasingly recognize the system to be a crime against humanity which “constitutes a serious threat to international peace and security.”4 The point is that despite its abhorrent “crimes,” South Africa continues to be a member of the. United Nations and, by logic therefore, also a member of the world community. This raises an interesting question: Should the United Nations in order to be consistent to its own Charter and declarations expel South Africa and technically resolve its anti-thesis in the system of apartheid? But would this be a real solution? Whether South Africa remains a member of the United Nations or not, the oppressed population under apartheid would still constitute apart of humanity. Hence, in order to liberate this “part” the world community must act in unison to uproot apartheid from the very face of the earth. This is enjoined as much by the Declaration on all Forms of Racial Discrimination adopted by the United Nations General Assembly in 1965 to the effect that: “any doctrine of differentiation or superiority is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination in theory or in practice anywhere.” If this declaration has to be given a practical effect, the United Nations must deny South Africa under apartheid all attributes of an independent sovereign state. For human rights, as enshrined by the two covenants of 1948, are indivisible; hence it would depend on lawyers and jurists to provide for such rules in international law as would forfeit the right of a state to exist until it restores social, economic and political rights of its citizens in consonance with the principal ethics of the international community. To combat apartheid, we must isolate its political reality from its territorial base. In other words, the United Nations must declare that South Africa, as a territory, ceases to exist so long as apartheid has not been completely eliminated! As we shall see, this is a distinction which has not been given proper attention in the numerous debates and deliberations of the United Nations General Assembly (UNGA) over the means to combat apartheid.

As we have seen, the findings by the International Court of Justice, as part of the 1950 Advisory Opinion, that South West Africa still had the international status of a mandated territory and that the UN General Assembly was the competent body to assume the supervisory functions previously performed by the Council of the League of Nations in respect of administration of the territory, were favourable to the UN. However, the same was not true about the court's view that South Africa was not legally obliged to place the territory under the International Trusteeship System of the UN. This ruling and South Africa's persistent rejection of the supervisory competence of the General Assembly, posed problems for the UN. On the one hand, it could not effectively supervise the administration of South West Africa without the cooperation of the mandatory; on the other hand, the territory would not be placed under the trusteeship system if South Africa did not so wish, and it did not. Under these circumstances, the future of South West Africa hung in balance.

The article addresses the study of the International Court of Justice (ICJ) as a hypothetical court of human rights. Two questions guide the theoretical reflection and aim of this study: first, can the activities of the Court be viewed through the paradigm of human rights, and second, can the ICJ be considered a functional court of human rights? To answer these questions, the broad concept of a “court of human rights” is used, which refers to an institutionalized judicial mechanism intended to take necessary legal measures to record relevant human rights violations and to protect and restore such rights, regardless of who may be the claimant in such a case (a state or a person). The study demonstrates that it is appropriate to consider the activities of the ICJ through the paradigm of human rights, as evidenced by the Court’s jurisprudence and numerous academic studies in the West. However, after analyzing the relevant arguments and counterarguments, the assumption that the Court can be regarded as a court of human rights is refuted. While many human rights conventions assign a special role to the ICJ in resolving disputes, human rights have never been the sole object of dispute in these proceedings; instead, they have always been part of an interstate dispute. Furthermore, the Court has repeatedly shown an ambiguous attitude towards methods of recording violations of human rights conventions, fact-finding methodology in such cases, and criteria for compensating victims of such violations, which has not contributed to the protection of human rights in relevant cases. The article also emphasizes the importance of the human factor in shaping the Court’s jurisprudence and expresses hope for an evolution of quality in the ICJ’s treatment of human rights, should a majority of judges adopt a human-centred approach to international law.

South West Africa Cases (Ethiopia v. South Africa and Liberia v. South Africa): On October 2, 1962, the International Court of Justice held the first of the public hearings on the preliminary objections to the jurisdiction of the Court, raised by the government of the Republic of South Africa in these cases. After opening the sitting and briefly recalling the stages in the written proceedings covered since the institution of the cases on November 4, 1960, the President of the Court proceeded to the installation of the two judges ad hoc designated by the parties in accordance with Article 31, paragraphs 3 and 5, of the Statute of the International Court of Justice. The two judges ad hoc were Sir Louis Mbanefo, Chief Justice of the High Court, Eastern Region of Nigeria, designated by Ethiopia and Liberia acting in concert, and the Honorable Jacques Theodore van Wyk, Judge of the Appellate Division of the Supreme Court of South Africa, designated by the government of the Republic of South Africa. The President announced that Judge Córdova was prevented by his health from sitting in the present proceedings.

The International Court of Justice (ICJ) as the principal judicial organ of the United Nations is neither a human rights court nor a criminal court. Because the jurisdiction ratione materiae of the ICJ is de facto unlimited and because violations of international human rights are considered to be violations of international obligations, the ICJ can deal also with international human rights law. Since only states which have locus standi before the Court, can claim a violation of human rights of either their own nationals occurring in a foreign state or of foreign nationals of a violating state. State complaints for the protection of own nationals in a foreign state are based on diplomatic protection, whereas such complaints for the protection of foreign nationals in a foreign state are based upon international human rights treaties or customary international law, especially obligations erga omnes. This article focuses on the contribution of judicial decisions of the ICJ as subsidiary means for the determination of rules of law in the field of international human rights law within the meaning of Art. 38 para. 1 lit. d) ICJ-Statute. It does so by analyzing relevant cases before the ICJ in recent years from various fields of human rights, especially relating to the right of peoples to self-determination, prohibition of genocide, prohibition of torture, and to human rights in conjunction with diplomatic protection, state immunity, and armed conflicts. Given that the ICJ is a universal court established for the peaceful settlement of disputes between states, and not a body specialized in human rights, the article also addresses the question of the interrelationship between the Court and specialized universal human rights control organs.

^^riT^HE International Court of Justice shall be the principal 1 judicial organ of the United Nations. Article 92 of the United Nations Charter thus rounds out the grand design of what the Court itself has described as the organized international community. This is the structure or framework for world order, which, however nascent and rudimentary, is an indispensable feature of the modern age. It was to the principal judicial organ of the United Nations that Ethiopia and Liberia submitted the protracted and un resolved dispute with South Africa concerning the interpreta tion and application of the Mandate for South West Africa, the very existence of which was denied by South Africa. A summary of the history and background of the dispute is an essential prelude to the following discussion, which concerns: (1) Why the litigation was instituted. (2) What the Court did ?1962. (3) What the Court did?1966. (4) Some lessons to be learned. The Territory of South West Africa, a German colony prior to the First World War, was entrusted to South Africa in 1920 as a Mandate under the League of Nations Covenant. The Mandate System, of which South West Africa is the one vestigial remnant, comprised certain colonies and territories which, as a consequence of the war, had ceased to be under the sovereignty of the de feated states. These colonies and territories, in the words of Article 22 of the League Covenant, were inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world. The restoration of the colonial status quo ante or the immediate grant of independence were considered by the victors to be unacceptable solutions. Although the powers had publicly voiced opposition to territorial annexation as a proper end of victory, secret arrangements had in fact been made by Great Britain, France and Japan prior to the armistice. These arrangements provided, among other things, that three British Dominions were to have the right to annex, respectively, German

On 29 December 2023, South Africa filed an application against Israel before the International Court of Justice (ICJ) concerning alleged violations of its obligations under the UN Convention on the Prevention and Punishment of the Crime of Genocide of 1948 in relation to the protected group of Palestinians in the course of the large-scale military operation in Gaza Strip launched by the Israeli authorities as a response to an attack carried out by Hamas on Israel on 7 October 2023. The main aim of this case commentary is to analyze the provisional measure orders issued by the ICJ in the Genocide Convention case (South Africa v. Israel) on 26 January 2024, 28 March 2024 and 24 May 2024 in the light of South Africa’s effort to make the Genocide Convention ‘globally effective’ by emphasizing the key role played by the obligation to prevent genocide in a process of securing the most fundamental rights of the protected groups under this treaty. Besides, it examines the interrelated issue of the ability of the ICJ to address the hard legal cases with strong political implications by the instrument of provisional measures.

Although the International Court of Justice (ICJ) is not a human rights court, it has recently addressed human rights issues, which has prompted interaction with the opinions of human rights mechanisms. This article will analyze the normative value of human rights treaty monitoring bodies’ interpretations recognized by the ICJ in three cases of its jurisprudence: the Wall Advisory Opinion, the case of Ahmadou Sadio Diallo, and the case of Qatar v. the United Arab Emirates. This analysis indicates that the ICJ has ascribed great normative weight to these interpretations, but it has been reluctant to adopt their views without conducting its own interpretative assessment of the norms. In its most recent case, the ICJ took an approach that completely departs from the interpretation adopted by the relevant treaty body. This article argues that such a position must be considered in light of the growing criticism that treaty bodies are facing about the quality of their reasonings and command of general international law. Accordingly, treaty bodies could enhance their legitimacy by learning from the ICJ’s approach to treaty interpretation, and in addition, could take advantage of the positive aspects of their non-binding character to develop meta-juridical discussions.