The latest instalment in the lawfare initiatives launched against Israel in the international legal arena was South Africa’s application at the International Court of Justice (ICJ) in the Hague, just before the New Year.
Applying for the court to order “Provisional Measures”, including that Israel “shall immediately suspend its military operations in and against Gaza”, South Africa has redoubled its support for the genocidal terrorist regime Hamas.
It has levelled unfounded and outlandish allegations of genocide against Israel a mere few months after real acts of genocide were perpetrated by Palestinian terrorists in the bloodiest attack against Jews since the Holocaust.
South Africa’s shameful application constitutes the modern “blood libel” against the Jewish State. Its actions are less shocking when we consider the African National Congress’s long history of support for Palestinian terrorism.
I spent last summer in South Africa on a speaking tour about International Law, and on my travels I saw how the rot of antisemitism in the form of Israel-hate had infected political and cultural institutions across the country.
In light of media coverage of these developments, it is important to clarify some basic points and distinguish between the ICJ and the International Criminal Court (ICC).
Although both international courts are based in the Hague, their ambits are very different. The ICC concerns itself with individuals, the ICJ deals primarily with disputes between states. Israel is not subject to the jurisdiction of the ICC, as it is not a party to the Rome Statue, a point on which the British government has previously been crystal-clear. South Africa’s application against Israel at the ICJ is being heard this week, despite its malicious nature. Israel has been clear that the allegations made will be robustly defended.
Genocide, as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, means committing certain acts, including killing, causing serious harm and forcibly transferring members of a group, “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.
South Africa’s 84-page application contains zero evidence to support its allegations, but its application is all the more mendacious in its attempt to present Israel’s lawful defence against terrorism – and its unprecedented measures to save the lives of Palestinian civilians – as genocide. South Africa’s attempts to play fast and loose with the definition of genocide spells trouble for all those who are committed to the rule of law and international legal order. There are further arguments that South Africa’s application in support of Hamas makes South Africa itself complicit in Hamas’s genocide – in violation of the same Genocide Convention – and also provides material support for terrorism, in violation of South Africa’s duties under UN Security Council Resolution 1373.
These duties include legal obligations not to support terror and to take necessary steps to prevent the commission of terrorist acts. The application may also contribute to the commission of terrorist crimes under relevant international conventions to which South Africa is a party, including the International Conventions for the Suppression of the Financing of Terrorism and the Suppression of Terrorist Bombings.
All of these arguments could certainly be made and would have far more weight than the position that South Africa has advanced to victim blame, defame Israel and stoke antisemitism with blood libels against Jews.
South Africa’s application to the ICJ is part of a broader, even more troubling course of action. The application plainly seeks to hijack the ICJ for South Africa’s agenda to create an international apartheid system in which the Jewish state is isolated and stripped of its legal rights. If the ICJ succumbs to this campaign, it risks becoming an instrument of antisemitic apartheid and losing its credibility as a court of law. This has serious implications for the international legal order, especially at a time of decreasing compliance with ICJ provisional measures.
South Africa’s actions constitute a new outrage, worse than crying wolf, worse than simple victim blaming. Its application falsely blames the real victims of a genocidal attack for perpetrating genocide where their precaution and restraint in self-defence has been unparalleled. This abuse of international legal institutions should worry every single champion of justice and the rule of law. Its damaging effect on the international legal order and the credibility of international law is palpable. It sends a message to Hamas and fellow genocidal Islamist fundamentalists that that they may commit real war crimes and crimes against humanity with impunity while their victims are put on trial.
Natasha Hausdorff is a barrister and legal director of UKLFI Charitable Trust