By Prof Angelo Dube
South Africa did prove genocidal intent before the ICJ: A response to Prof Andre Thomashausen
A week ago I read with shock an opinion piece written by UNISA Emeritus Professor, Andre Thomashausen, titled ‘SA has failed to prove genocidal intent by Israel in Gaza’, purportedly featured in the Sunday Times on 14 January 2024. My disdain at the paucity of legal rigour in the article was only matched by the hardship in accessing the article itself, since I do not subscribe to the Sunday Times or any other news media for that matter. Were it not for the author’s posting of a newspaper cut-out on his timeline on LinkedIn, I would not have gotten wind of this controversial article.
In his article Prof Thomashausen starts off with a breakdown of the team that represented South Africa – a rather bizarre inclusion given the heading of the article. At first I could not see the importance of this analysis of the team in an article that sought primarily to convince the reading public of South Africa’s failure to prove genocidal intent. It would soon dawn on me that the composition of the South African team was invoked in order to lay the foundation for a criticism of their competence and supposed lack of knowledge of international law – an all too familiar blanket approach to dismiss global south scholars and jurists. Despite the South African team having featured renowned international law expert, Prof John Dugard, in the eyes of Prof Thomashausen, all the team members combined could not match Israel’s lead counsel, Prof Malcolm Shaw. Granted Prof Shaw is a revered international law scholar in the global north. However, to cursorily dismiss the standing of Prof Dugard is at best laughable. Interestingly, this is the same Eurocentric dogma that the #feesmustfall movement protested about, the tendency to place Europe at the centre of knowledge.
Prof Thomashausen begins his article by invoking Article 38 of the Statute of the International Court of Justice. He argues that none of the members of team South Africa could claim to be a ‘most highly qualified publicist (of international law)’ as required by Article 38 of anyone wishing to assist ‘in the determination of the rules of international law’. The Professor couldn’t be more wrong. Article 38 does not address itself to the caliber of lawyers that must appear before it. Instead, the provision is simply a list of the sources of international law, in other words, the list of authoritative sources that the court will draw from to dispose of a matter before it. It thus lists international conventions, customary international law, general principles of law recognized by civilized nations before mentioning judicial decisions and the teachings of the most highly qualified publicists as subsidiary means of determining the rules of law. Nowhere does it state that anyone wishing to appear before the court must be a ‘highly qualified publicists’ as the good Prof seems to suggest. This is not a requirement of article 38 as the unsuspecting public is led to believe. All the above notwithstanding, the major problem with such an opening, replete with such broad and unsubstantiated assertions, is that it does not address the supposed failure of South Africa to prove genocidal intent.
Turning to what Prof Thomashausen poses as the first weakness, again one is left rattled by the bold assertions made. As per the article, the South African legal team lacks an understanding of international conflicts. This is despite the fact that Prof Dugard has published extensively on the Israeli occupation and other conflicts such as Iraq for decades. The same can be said of Prof Max du Plessis. Again this so-called weakness does not in any way address the supposed failure to prove genocidal intent.
A second weakness is proffered by Prof Thomashausen, this being the reliance on the 1948 Genocide Convention. The article proceeds to decry the fact that only seven of the 84 pages in South Africa’s papers were dedicated to genocidal intent. Without saying more, he concludes that the instances advanced as acts evincing statements synonymous with genocidal intent fail to prove such intent on the part of Israel. He then relies on three cases without explaining how in the Israeli situation genocidal intent can be said to be absent despite expressions calling for the crushing of Palestinians.
Here is where Prof Thomashausen could have drawn from to realise that genocidal intent has indeed been proven by South Africa.
Language is important as an instrument of genocide. The first step is to dehumanize the other in order to make it less complex to violate them. This dehumanization takes the shape of renaming/re-identifying them – calling them by some derogatory name(s). Once their humanity is emasculated in this manner, the process of wiping them out in one genocidal sweep is less draining emotionally. For instance, the use of the words inyenzi or cockroach, inzoka or snake laid the social groundwork for the genocide of the Tutsi in Rwanda in 1994. We saw this with Hitler as well, calling the Jews a ‘race-tuberculosis of the people’ before annihilating them. We have also seen a surge in such references in Israel, calling Palestinians ‘human animals’. These words are meant to and have in fact prepared the way for physical and material acts and thus generated permissions for actions hitherto uncountenanced. Utterances of this nature have come from the President, the Prime Minister and other members of government within Israel. When Israel took the stand at the ICJ, they only addressed one such instance, and did not address the litany of other accusations of genocidal utterances. Pro-Israeli advocates would like us to believe that there is no connection at all between these repeated utterances and the ongoing violence and what it seeks to achieve. A senior Rwandan politician, Leon Mugesera, who called Tutsis cockroaches in 1992 was sentenced to life imprisonment for encouraging the genocide.
In Akayesu, the International Criminal Tribunal for Rwanda opined that dolus specialis, a form of aggravated intent, implies that the perpetrator consciously desired the prohibited acts he committed to result in the destruction complained of. In the same case, the Tribunal indicated that “it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others”. Genocidal intent, the Tribunal continued, could also be inferred from prior statements and acts of the offender. In Karadzic and Mladic, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia indicated that the general political doctrine that gave rise to the acts and the repetition of destructive and discriminatory acts may actually imply genocidal intent.
The intent required here was for purposes of convincing the court to order provisional measures. It was not necessarily intent aimed at obtaining a favourable judgment in the merits stage of the case. This is what the analysis of Prof Thomashausen failed to grasp, that the threshold in this instance is much lower. So long as a dispute was proved and plausible rights or interests contained in the Genocide Convention were proven to be at stake, a lower threshold in proving the genocidal acts and the existence of an intention to carry out those acts.
Prof Thomashausen argues further that the litigation overlooks the inviolability of sovereign equality of states. It is hard to imagine how this could be. South Africa did not bring the application on behalf of Hamas, but on behalf of all humanity as an agent of humankind. Genocide is the crime of crimes, and all of humanity has interests in it. Further, South Africa is duty bound by the same Genocide Convention and customary international law to hold any one of its sovereign equals to account where it believes that their conduct violates their international obligations. It is not necessarily to undermine sovereign equality, but to advance it. States ought to be interested in the treatment of human beings by other states, and where gross human rights violations occur, amounting to genocide, every state has the right to intervene. This is an established principle of international law. Prof Thomashausen keeps referring to Hamas as if the injuries and deaths are inflicted on the abstract entity called Hamas. Well they are not. The bombings and shootings are killing human beings, Palestinians, not Hamas. This resort to emotive rhetoric is common amongst those seeking to advance a pro-Israeli stance, and its sole aim is to move the debate away from the two entities before court, that is South Africa and Israel.
He proceeds to downplay the numbers of people killed by the Israeli bombardment of Palestine, arguing that it is the lowest since World War II and that the court will not ignore this fact. Again the professor misses the point here. The World War II death toll is not a benchmark against which to measure if the court should intervene in this case. The ICJ has ordered provisional measures in situations that had far less casualties than the Gaza death toll. See the case of
In his concluding remarks, Prof Thomashausen frames the litigation as the ‘ANC’s legal war against Israel’, and claims that the major aim is to secure the Muslim vote in the coming elections. Again this is an all too common tactic to confuse the reading public about who exactly is litigating before the ICJ, and reduce the suffering of innocent Palestinians in Gaza to petty domestic politics. He then forecasts that South Africa will be ostracized by the West and that this may include China, Russia and India. It would seem the Professor spoke too prematurely since China recently called for an independent and fully sovereign state of Palestine based on the 1967 borders. In any event, such arguments literally mean that South Africa, which came from the ravages of apartheid, must stand by idly while the apartheid state of Israel carries out yet another crime against humanity, the crime of genocide. That cannot be the South Africa we love and support, that stands for human rights, ubuntu and democracy. May we never forget President Nelson Mandela’s words, ‘But we know too well that our freedom is incomplete without the freedom of the Palestinians’.
About the Author:
Prof Angelo Dube is a full professor of international law at the College of Law, University of South Africa. He is also the Acting Director of the School of Law within the College. He has written extensively on international law, the law of war and the works of international tribunals such at the International Criminal Court and the International Court of Justice.