Lacking legal foundation and exploiting the law on genocide, why is South Africa doing the legal bidding of homicidal Hamas?

By Craig Snoyman

I was always a little sceptical about South Africa’s application against Israel in the International Court of Justice (ICJ). Possibly because Colonel Richard Kemp, the former British commander in Afghanistan, and Major John Spencer, an urban war specialist at Westpoint Military Academy- two internationally respected military experts – had ridiculed the idea of a genocide and possibly or probably – because I am Jewish and grew up with the words “Destroy the memory of Amalek, do not forget” which always sounded a little counterintuitive. For me, South Africa’s application to the International Court of Justice had the hallmarks of an ulterior motive. 

Many people in South Africa watched the ICJ hearing at The Hague. I was shocked when South Africa attempted to explain Netanyahu’s interpretation of Amalek. For secular Jews like myself, Amalek has always represented the eternal enemy that rises against the Jews in every generation. However, the story of the prophet Samuel instructing King Saul to go to war, was unknown to most of us who have only read the five books of Moses. It added an unfamiliar perspective. Another surprise was my old law professor’s explanation – Prof. John Dugard – of the dispute between South Africa and Israel which teetered on misrepresentation. Was there even a genuine dispute? The description of the situation in Gaza was tragic but sadly similar to what occurs in all wars. However, in Gaza, the enemy was hiding behind civilians – men, women and children, young and old. If the Court could not enforce a ceasefire on Hamas, then it would be unreasonable to so order Israel which was acting in defence following a massacre of its citizens – mostly civilians and who were set on freeing its hostages. South Africa’s demand for an immediate ceasefire was doomed from the start.

The court ruled that there was a valid dispute but refused to grant the immediate ceasefire. It handed down various precautionary measures. I was left with the impression that any warring country could be subjected to charges in terms of the Genocide Convention as there is always the lingering doubt that just maybe there might be a “plausibility of genocide”. South Africa hailed the judgement as a great victory but Israel continued its war of defence with Hamas.

The Director General of DIRCO (Department of International Relations and Co-operation) justified how “the ICJ had effectively ordered Israel to immediate cease-fire” and then referred the matter back to the ICJ, within 3 weeks of the judgment being handed down. South Africa applied to the court for further urgent precautionary orders preventing Israel from continuing its unprecedented military action in Rafah. Second time round, the South African expectation – or blind hope – was surely to achieve a more substantive result than initially handed down.

South Africa’s claim requested that the Court consider exercising its power under Article 75(1) of the Rules of Court that provides:

  “The Court may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all the parties.”  

The term “proprio motu” is not commonly used, but is defined as “an official act taken without a formal request from another party” – in other words, on one’s own initiative.

South Africa reminded the Court that it had “full discretion to exercise this power without any hearing or submissions by parties, and should do so.”

VAGUE AT THE HAIGUE

Israel described South Africa’s new request as “unfounded in fact and law” and “morally repugnant.” Israel pointed out that Article 75(1) of the Rules of Court allowed the court to issue provisional measures of its own accord, but not at the request of a party. It stated that factually, there had been no change in the situation in Gaza on the ground since the ICJ hearing and the alleged “unprecedented military offensive in Rafah” had not happened.

South Africa came to the Court with two aims. The first was to arrogantly remind the court that it was failing to do its job and therefore was incumbent of the bench to take more decisive action. The second was that the court should henceforth so proceed without Israel even being afforded a right to respond. As any experienced courtroom practitioner should know, judges hardly appreciate being told by counsel that they are not doing their job. Also, it would be extraordinary for a court to impose extremely onerous conditions on a party without hearing what that party has to say. Not only did South Africa attempt to bully the court, but attempted to exclude Israel from the process. These was not a sound basis for a successful application!

So why did South Africa institute this application? With Israel’s assault on Rifah looming, the most logical explanation was its attempt to undermine Israel’s military progress – in other words to obtain a complete cessation of hostilities – the permanent ceasefire that it had initially sought from the court. Another plausible and possibly additional explanation could be that the Court would oblige Israel to submit regular reports as originally demanded and that South Africa would then claim non-compliance with each report and publicise this non-compliance bringing further international opprobrium on Israel. In other words, using the court of law to impact on the court of public opinion.

The ICJ responded remarkably quickly and gave short shrift to the South African application. It stated that there were already emergency measures in place throughout Gaza, which included Rafah and there was no reason to vary the original order.

The South African government spun this application as a win. It stated that the Court “acknowledged that Israel’s planned incursions in Rafah would render what is already a humanitarian disaster even more perilous.” No longer was it alleged that Israel had already invaded Rafah – the very grounds that South Africa relied upon to justify both extreme urgency and the prevention of Israel’s right to be heard. The spin that “Any decision by Israel to engage in military activities against Palestinians in the current circumstances is a violation of the order of the International Court of Justice” was contrary to the express ruling of the Court, which emphasised “that the State of Israel remains bound to fully comply with its obligations under the Genocide Convention and the Order…” 

The Court accepted that Israel was acting in terms of the order. South Africa persists in spinning the myth that Israel is not.

Is South Africa – as accused by Israel – the “handmaiden of Hamas”? Had South Africa demonstrated “an intention to abuse the Genocide Convention?” South Africa’s courting of Hamas, both at home and abroad, suggests this accusation has merit. The statement by South Africa’s foreign minister, Naledi Pandor that all the advocates donated their professional services rings hollow, particularly concerning the two King’s Counsel who have no allegiance to South Africa. 

Was South Africa bought and paid for to render services for Hamas? 

The application was prima facie dishonest and irrational. The allegations made by South Africa were untrue, and easily disprovable. Its demand for the exclusion of Israel’s input was duplicitous. Once again, its aim appeared to have the Court unilaterally further tie the hands of Israel in its war against Hamas.  

South Africa has tarred Israel internationally as a “genocide nation”. The ICJ will investigate and eventually confirm the view of Major Spencer that “For Israel’s part, it’s taken more care to prevent civilian deaths than any other army in human history”?  

How is South Africa going to cleanse itself of the blood libel that it has propagated? Does it even care?

About the writer:
Craig Snoyman is a practising advocate in South Africa.

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