By Randy Pinsky

Three months after the start of the Israel-Hamas war provoked by Hamas’ attacks of October 7th, South Africa - a seemingly disengaged country - brought Israel to the International Court of Justice on charges of genocide. Israel rejected the allegations, calling them ‘baseless’, ‘decontextualized’ and ‘deliberately curated.’

What was the outcome and implications of the court case? And what was South Africa’s motivation (or some might say, angle), given it is not party to the conflict? 

The Context

Following Hamas’ attack in the south, Israel responded with force in Gaza to eliminate the terrorist entity and protect its people from future such aggressions. What has resulted is a humanitarian tragedy, made exponentially worse by Hamas' nefarious use of civilian infrastructure for its military purposes. In addition to launching rockets from schools, mosques and hospitals and hiding behind human shields, they have prevented the population from leaving by force. Their fighters also strategically wear regular clothing in order to appear to be civilians despite their true role as militants.

Article 51 of the UN Charter guarantees the individual and collective right of a state to self-defense in the case of an armed attack. Operation Iron Sword was a response to the aggression and to eliminate Hamas’ threats to continue such acts.

This context however, tends to be overlooked by the international community who solely see the devastation. The South African court case was the newest condemnation of Israel’s military response. 

The Case is Presented

On December 29, 2023, South Africa accused Israel of perpetuating genocide against the Palestinians in Gaza. They presented a report to the International Court of Justice (ICJ) in The Hague, Netherlands and demanded an immediate cessation of military operations.

The term ‘genocide’ was coined in 1948 by Raphael Lemkin, a Polish lawyer of Jewish descent, as a direct response to the horrors of the Holocaust. It stipulates there must be evidence of acts against an ethnic, national, racial or religious group, with the ‘intent’ to destroy it in whole or in part.

“This is why it is so emotionally fraught for Israelis and Jews around the world,” stated Canadian human rights lawyer Tamara Kronis^[1] when interviewed by the Canadian Jewish News. “The convention that was essentially created to protect us and out of our own suffering, is now being weaponized against the state of Israel.”

Basic Concerns

An essential problem with this court case is that the main premise for genocide - intent - is critically missing in the equation. As repeatedly stated by the Israeli government, the war is against Hamas, not the Palestinian people. The fact that the terrorists hide among schoolchildren and shoot rockets from civilian infrastructure (a war crime), makes the situation that more complicated.

The loss of life is an inevitable “hallmark of war” but does not in itself constitute a case of genocide.

Without stated intent, the term is perverted and cheaponized. Alternatively, while genocidal intent was clearly indicated in the Hamas charter and action, this did not make the stand.

South Africa’s lawyers drew on isolated quotes made by extremist Israeli politicians outside of Israel’s war and security cabinet as ‘evidence’ of intent. “The entirety of [South Africa’s] case hinges on a deliberately curated, decontextualized and manipulated description of the reality of current hostilities,” stated Israel's Foreign Ministry legal advisor Tal Becker.

What Happened 

The South African government demanded for a ceasefire, placing few expectations on Hamas; a critical situation of double standards.

Following deliberations, the ICJ^[2][1] presented six demands, falling short of calling for a ceasefire. These included Israel preventing any of the acts in the genocide convention, minimizing loss of life, facilitating the flow of humanitarian aid, and submitting a report on its actions.

While the rulings cannot be legally enforced, there can be significant reputational damage for noncompliance. 

Reactions - Part 1

Warren Goldstein, Chief Rabbi of South Africa, reinforced that the South African government’s actions do not represent most of the country. “The UN and its institutions have credibility they do not deserve…institutions [have been] hijacked by undemocratic societies to advance objectives that threaten freedom, peace and prosperity in the world.”

With only 18/193 countries in the General Assembly categorized as ‘free societies’ by Freedom House, “what does that say about the quality of these bodies [and judges]…made up of autocratic regimes?” 

Reactions- Part 2

South Africa and Iran welcomed the ICJ ruling, with South Africa calling it a “decisive victory” for international rule of law, though disappointed it did not order a ceasefire. A senior Hamas leader told Reuters this was an important development “that contributes to isolating Israel and exposing its crimes in Gaza.”

Palestinian Foreign Minister Riyad al-Maliki said, “The ICJ order is an important reminder that no state is above the law,” and the ruling was supported by organizations such as Human Rights Watch and Amnesty International.

Importantly, the European Union and Germany stood out by mentioning Hamas as also being “bound by international humanitarian law.”

Israel's Response

Israeli Prime Minister Benjamin Netanyahu called the case a “vile” attempt to deny Israel the right to defend itself, and that “the charge of genocide…is not only false, it’s outrageous.”

The aim of the military operation is not to destroy Gaza but to demobilize a terrorist entity. South Africa’s condemnation of attacks on healthcare facilities omitted the fact that every hospital was found to have harboured both Hamas militants and weapons.

Manipulating the term genocide and ignoring context thus “betray[s] the premise and integrity of the genocide convention."

Motivation?

What would compel South Africa to get involved? As queried by Al Jazeera, are their actions guided by “Altruism, opportunism - or both?”

South Africa had long been sympathetic to the Palestinian cause, claiming to recognize apartheid due to its own experience. In fact, Nelson Mandela fraternized with Palestinian Liberation Organization leader Yasser Arafat, calling him a “comrade in arms.”

While once promoted as an African success story, the country has become crippled by government corruption, outdated and under-maintained systems, and staggering unemployment, its reputation as a “beacon of democracy and freedom” tarnished with rampant crime.

Its reticence to condemn Russian actions in the war in Ukraine and efforts to align with it moreover, has also prompted questions about its shifting foreign policy. 

Random Timing?…Or Not

From struggling to supply basic amenities, the state debt of 100 million rand ($5.3 million) was suddenly resolved overnight. The source of funds was not disclosed, however the timing coincided with meetings with Iran (both after the massacre and the court case), leading many to speculate about possible collusion.

The two countries have political and economic ties, with South Africa pushing for Iran to be accepted into the BRICS intergovernmental economic cooperation organization, and shares Iran's anti-Western orientation. Iran is the funder of several proxy terrorist groups such as Hezbollah in Lebanon, the Houthis in Yemen- and Hamas in Gaza.

Could Iran have propped South Africa up to present the case to the ICJ to further vilify Israel on the international and media stage? 

Implications

While it is not yet clear what impact the court decision will have on the Israel-Hamas war, “[It] is bad for human justice, bad for human history, and bad for Israel,” said Raphael Bitton, expert on international law at the Misgav Institute for Zionist Strategy and National Security.

As Israel was responding in self-defense against an unprovoked attack - as justified by the UN’s own charter - one can disagree with the approach but not the premise. 

 

 

 

^[1] She had been a trial assistant at the International Criminal Tribunal for the former Yugoslavia.

^[2] The court expressed concern about the hostages and called for their immediate release without conditions.