High Noon at the Hague: South Africa vs Israel

The ICJ ruling is unsatisfactory for at least six reasons


ICJ judges at the hearing

January 29, 2024 16:39

The world has watched the apocalyptic scenes of medieval privation and devastation in Gaza with horror. The scale of death and injury is a damning indictment of the callous indifference and cruelty of the jihadists whose well-heeled leaders are safely ensconced in five-star hotels or luxuriating in lavish spas. Provoking Israel by their despicable depravity of 7 October — murder, rape, torture, abduction, arson, and pillaging — the butchers have reaped a whirlwind whose calamitous consequences will endure for decades.

Gazans obviously deserve better, and it is incomprehensible that their voices have not been raised against the terrorists for triggering their disastrous predicament. Exhorting them to surrender and release the surviving hostages would bring an end to their torment.

Amid this seemingly intractable chaos, it fell to South Africa to assume the role of conscientious accuser. Although its application to the International Court of Justice under the Genocide Convention failed to secure a ceasefire as a ‘provisional measure of protection’, the court ordered Israel to observe with several requirements to prevent acts of genocide against Palestinians in Gaza, including the killing of Palestinians, causing serious bodily or mental harm to civilians, and ending the imposition of measures intended to prevent births. Israel is also to directed to take immediate steps to permit the provision of humanitarian assistance to residents in Gaza.

It is important to note that the decision is both interim and unenforceable by the court. And while it explicitly avoids deciding on the merits, the judgment does constitute an uncomfortable rebuke to Israel in respect of its military execution of self-defence.

The decision is, I believe, unsatisfactory in a number of respects.

First, the Court passes lightly over Israel’s defence. It is extraordinary that the judges fail to acknowledge the critical fact that Israel is fighting an enemy that is demonstrably committed to the Jewish state’s annihilation. The 2017 revised Hamas Charter is explicit in its ambition to continue its resistance until Israel is obliterated: “Palestine symbolizes the resistance that shall continue until liberation is accomplished, until the return is fulfilled and until a fully sovereign state is established with Jerusalem as its capital…[Palestine] was seized by a racist, anti-human and colonial Zionist project…” A pronouncement that requires little clarification.

Second, it surprisingly overlooks the terrible reality that Israel’s cold-blooded foe hides its fighters, weapons, and hostages in a subterranean city, and operates amongst civilians in schools, mosques, and hospitals. It also continues to fire rockets into Israel.

Third, the court uncritically concurs with the applicants’ assertion that various bellicose statements, uttered in the aftermath of the gruesome 7 October attacks, demonstrate the requisite intention by Israel to commit genocide.’ A moment’s thought would explain why, following the barbaric, sadistic onslaught, which left at least 1,200 dead, many wounded, and some 250 taken hostage, certain Israeli political and military leaders rashly unleashed clamorous calls to arms, promising vengeance and retaliation for the unspeakable suffering that befell so many innocent citizens and foreign visitors. To treat such injudicious remarks—made in the heat of a national tragedy—as evidence of a state’s intention to commit genocide is both disingenuous and highly tendentious, especially as they included comments made by individuals with no direct role in Israel’s military decision-making.

Fourth, the court ought to have considered whether the Genocide Convention is, in fact, the appropriate legal basis for the litigation. As the ad hoc Israeli judge, Aharon Barak points out in his dissenting judgment, the framework of international humanitarian law affords a more congenial authority under which the application should have been mounted. It provides that harm to innocent civilians and civilian infrastructure should not be excessive as compared with the anticipated military advantage. The loss of innocent lives is not unlawful providing it complies with the rules and principles of this law.

Fifth, the court abjures finding of facts, yet it unhesitatingly cites a plethora of evidence from various agencies of the United Nations whose neutrality is, at the very least, questionable. They include the Office for the Coordination of Humanitarian Affairs (OCHA), Under Secretary-General for Humanitarian Affairs and Emergency Relief, the World Health Organisation (WHO), the UN Human Rights Council, and the Commissioner-General of (the recently discredited) UNRWA.

Sixth, the judges fail to enquire whether South Africa’s application might be tainted by its cordiality towards Hamas. The country, it seems, wishes to be seen as the conscience of the world. To this end, it predictably invokes the memory of Nelson Mandela to shore up its crumbling legitimacy. One might have thought that the moral standing of the ANC government, mortally wounded by years of corruption and broken promises, had reached rock bottom. Yet its shameless embrace of the Hamas murderers and rapists condemns it to infamy from which it may never recover. A mere ten days after 7 October, South Africa's foreign minister, Naledi Pandor, held a telephone call with the leader of Hamas, Ismail Haniyeh, to express the country’s ‘solidarity and support’ for the Palestinian people. This was followed in January by a delegation of three Hamas officials to Pretoria.

Is it unreasonable to detect a thinly disguised strain of antisemitism in this opportunistic campaign? While strongly castigating Israel, the social justice warriors of Pretoria barely mention the malevolence of Hamas and other Iranian proxies. Could it be that in this conflict Jewish lives are regarded as somehow less worthy? Or is it simply that the ANC’s yearning to burnish its radical pro-Palestinian (and even pro-Iranian) credentials, blinds it to the suffering of the victims of these crimes—particularly as it faces a general election this year?

Among the ironies at play in this sorry charade is the fact that many South African Jews were in the vanguard of the struggle against the grotesque injustice of apartheid. They were tortured, imprisoned, and vilified by the apartheid state. In his memoir, Mandela reflects:

I have found [South African] Jews to be more broad-minded than most whites on issues of race and politics, perhaps because they themselves have historically been victims of prejudice.

He might have added that several had relatives who were victims of a real genocide at the hands of the Nazis.

Unlike most of his successors, Mandela was, in many ways, a paragon of humility and modesty. I was fortunate enough to spend an hour with the great man soon after his release from almost three decades of incarceration. These virtues were palpable; the nearly total absence of ego and bitterness was genuinely unsettling. This, unhappily, is a far cry from the tone of pious hubris of the South African submission to the ICJ, quick to assign all blame to Israel for defending itself against the sadistic barbarity of terrorists (exultantly recorded and celebrated by them). South Africa’s application—and the court’s judgment—is silent on the scourge of antisemitism and the existential threats to Israel from its neighbours since its very establishment in 1948.

The sad state of South Africa must, in large part, be attributable to the governance of the ANC. The level of violence (27,000 deaths in a single year), corruption, unemployment, poverty, and falling life expectancy, speak for themselves. Solemn undertakings to provide basic utilities—water, electricity, housing—have not been met. None of this is easy to achieve, but ought not the focus of the administration be directed toward improving the plight of its people rather than posturing on the world stage and cosying up to authoritarian regimes and terrorists?

In fairness, I do wonder whether my revulsion at South Africa’s allegation of Israeli genocide is principally based on the fact that it has been brought by a country whose motives seem, at best, impure. Is it the moral turpitude of the ANC that troubles me so deeply? Suppose that, say, Sweden, Switzerland, or Spain had launched the application. Would that diminish my indignation? It would not, of course, alter the spurious nature of the case—the notion that Israel is engaged in genocide is both odious and absurd—but it might conceivably subdue my irritation.

Sadly, the leaders of post-apartheid South Africa have failed to follow the laudable example of its first President. That they have the audacity to side with savagery, renders it morally unfit to stand before the World Court—and the world— to denounce a country engaged in defending itself against an abhorrent, inhuman adversary.

Raymond Wacks, Emeritus Professor of Law and Legal Theory, is the author of 16 books, and editor of ten. His works have been translated into more than a dozen languages. His books include Personal Information: Privacy and the Law; Privacy and Media Freedom; Privacy: A Very Short Introduction; Law: A Very Short Introduction; and Justice: A Beginner’s Guide. Among his most recent publications are Protecting Personal Information: The Right to Privacy Reconsidered, COVID-19 and Public Policy in the Digital Age, and National Security in the New World Order: Government and the Technology of Information (with Andrea Monti). The sixth edition of his Understanding Jurisprudence: An Introduction to Legal Theory appeared in 2021, as did The Rule of Law Under Fire? His latest book, Animal Lives Matter: The Continuing Quest for Justice, is to be published next month.

January 29, 2024 16:39

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