New ICC-Related Sanctions Present Increased Risk for South Africa’s ICJ Campaigners

The lawfare campaign against Israel hit a snag. On September 4, Secretary of State Marco Rubio announced sanctions on three nongovernmental organizations (NGOs) for having “directly engaged in” International Criminal Court (ICC) investigations of Israeli nationals. Separately, all three of these NGOs — Al-Haq, the Al Mezan Center for Human Rights, and the Palestinian Center for Human Rights (PCHR) — are involved in South Africa’s case against Israel at the International Court of Justice (ICJ). The sanctions on these NGOs could hinder South Africa’s future work on the case by presenting a risk of secondary sanctions for any South African banks, firms, government agencies, or individuals that continue dealing with the recently designated groups.

Sanctions Target the NGOs of South African ICJ Team Members

Rubio announced the new sanctions pursuant to Executive Order 14203, “Imposing Sanctions on the International Criminal Court.” The order authorizes sanctioning “any foreign person” who has “materially assisted” or “directly engaged” in “any effort by the ICC to investigate, arrest, detain, or prosecute a protected person without consent of that person’s country of nationality.” The ICC, which prosecutes individuals for war crimes and other grave international crimes, has issued arrest warrants for two Israeli leaders — Benjamin Netanyahu and Yoav Gallant. By contrast, the ICJ handles legal disputes between states and provides advisory opinions on legal questions referred by UN organs and agencies.

The directors of the three sanctioned NGOs were listed as “advisers” on the ICJ list of those persons who represented the South African government in its ICJ case alleging that Israel has committed genocide against the Palestinians. They are Al-Haq’s Shawan Jabarin, Al Mezan’s Issam Younis, and PCHR’s Raji Sourani. Additionally, Al-Haq’s head of legal research and advocacy, Susan Power, served as assistant counsel for South Africa, while Al-Haq’s researcher, Ahmed Abofoul, also served as an adviser to the delegation.

NGOs’ Ties to Terrorist Groups

The three NGOs have ties to Palestinian terrorist groups. According to an Israeli submission to the United Nations and Israeli court documents, Jabarin is a senior member of the Popular Front for the Liberation of Palestine (PFLP). PCHR’s Sourani, who served three years in Israeli prison for his membership in the PFLP, stated that he was previously a member of the group.

Likewise, Nafez al-Madhoun was simultaneously an Al Mezan board member and the secretary general of the Hamas-led Palestinian Legislative Council from 2015 to 2022. Several other Al-Haq, Al Mezan, and PCHR staff and board members have been PFLP members or otherwise associated with PFLP-affiliated institutions. There appear to be sufficient grounds for the U.S. government to investigate the terrorist group ties of these three NGOs and their leaders, with an eye to imposing sanctions under Executive Order 13224 (as amended), which authorizes sanctions on terrorists and their material supporters, agents, and trainees.

South Africa initiated proceedings against Israel before the ICJ in December 2023, just two months after Hamas carried out its killing spree in southern Israel. But already in February 2023, Al-Haq’s Abofoul toured South Africa, visiting the country’s Department of International Relations and Cooperation, to drum up support for punitive actions against Israel.

Coordination With Sanctioned NGOs Could Expose South Africa to Risk

The South African government has spent more than $7 million on its ICJ case against Israel. It is unclear how much, if any, of that money went to the three Palestinian NGOs sanctioned by the United States last week. But their involvement in the case could expose the South African government and any South African banks, intermediaries, or other firms involved in funding the case to U.S. sanctions. In addition to its primary sanctions on persons determined to have directly engaged in (or materially assisted) the specified ICC investigations, Executive Order 14203 authorizes secondary sanctions, on foreign persons determined to have “materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of” any individual or entity that has, like the three Palestinian NGOs, been subjected to primary sanctions under the executive order. 

Section 3 of Executive Order 14203 specifies that the secondary sanctions prohibit “the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of,” or “the receipt of any contribution or provision of funds, goods, or services from,” any individual or entity that has, like the three Palestinian NGOs, been subjected to primary sanctions under the executive order. 

Following up on the designation of the three Palestinian NGOs, the U.S. government should sanction other groups, such as the Belgium-based Hind Rajab Foundation, to the extent they meet the criteria set forth in Executive Order 14203 applicable to foreign persons who have “materially assisted” or “directly engaged in” the ICC pursuit of a protected individual without consent of that individual’s national government. The United States should also investigate the extent to which the Hind Rajab Foundation, which filed a complaint against Israeli military leaders at the ICC alongside PCHR in August, may be subject to secondary sanctions for its involvement with PCHR.

David May is a research manager and senior research analyst at the Foundation for Defense of Democracies (FDD). For more analysis from the author and FDD, please subscribe HERE. Follow David on X @DavidSamuelMay. Follow FDD on X @FDD. FDD is a Washington, DC-based, nonpartisan research institute focusing on national security and foreign policy.