Failing to establish a case of genocide against Israel, South Africa also failed to follow the laudable values of its first President, Nelson Mandela
By Emeritus Professor, Raymond Wacks
An earlier, shortened, version of this article appeared The Jewish Chronicle last week. We are grateful for permission to publish the expanded essay here.
The world has watched the apocalyptic scenes of medieval privation and devastation in Gaza in horror. Whether by accident or design, Hamas has shattered the lives of the people they were elected to serve. 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 far from the turmoil in five-star hotels or luxuriating in lavish spas. Provoking Israel by their depravity of 7 October - murder, rape, torture, abduction, arson, and pillaging - the butchers have reaped a whirlwind whose calamitous consequences will endure for decades.
SA v Israel. The principal judicial organ of the UN, the International Court of Justice in The Hague was the setting for South Africa to pursue Israel at the behest of Hamas by falsely accusing Israel of committing genocide in Gaza.
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 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 directed to take immediate steps to permit the provision of humanitarian assistance to residents in Gaza.
It is important to note that the ruling 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; I shall mention only six of its most conspicuous shortcomings.
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 (more 'moderate') 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.
'Aim'ing to Annihilate. Passing lightly over Israel's defence, the judges failed to acknowledge the critical fact that Israel is fighting an enemy that is committed to the Jewish state's annihilation.
(Emmanuel Dunand/AFP via Getty Images)
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. Imposing a ceasefire on Israel, as requested by the applicant, would simply allow Hamas to regroup. Moreover, as Justice Sebutinde recognises in her carefully reasoned dissent that the litigation is "complicated by the fact that in the context of an ongoing war with Hamas, which is not a party to these proceedings, it would be unrealistic to put limitations upon one of the belligerent parties but not the other. Israel would justifiably assert its right to defend itself from Hamas, which would most probably aggravate the situation in Gaza … It is difficult to envisage how one of the belligerent parties can be expected to unilaterally "prevent the destruction of evidence" while leaving the other one free to carry on unabated."
In Word and Deed. How does South Africa feel about the preamble to the Hamas Covenant that reads that "Israel will exist and will continue to exist until Islam will obliterate it, just as it obliterated others before it."
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 was visited upon 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 on the ground. They were, in any event, directed at the terrorists, not the Palestinians or Gazans in general.
Fourth, the court ought to have considered whether the Genocide Convention is, in fact, the appropriate legal basis for the litigation. As both the ad hoc Israeli judge, Aharon Barak and Julia Sebutinde point out in their dissenting judgments, the framework of international humanitarian law (IHL) affords a more congenial authority under which the application should have been mounted. In the words of the latter:
What distinguishes the crime of genocide from other grave violations of international human rights law is the existence of the 'intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such'. Accordingly, the acts complained of by South Africa … can only be capable of falling within the scope of the said Convention if a genocidal intent is present, otherwise such acts simply constitute grave violations of international humanitarian law and not genocide as such.
IHL 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. Similarly, the German judge, Georg Nolte, though he concurred with the majority, did not regard the test of genocide as having been met:
I am not persuaded that South Africa has plausibly shown that the military operation undertaken by Israel, as such, is being pursued with genocidal intent. The evidence provided by South Africa regarding the Israeli military operation differs
fundamentally from that contained in the reports by the United Nations fact-finding mission on Myanmar's so-called 'clearance operation' in 2016 and 2017 which led the Court to adopt its Order of 23 January 2020 in The Gambia v Myanmar.
Fifth, the court abjures finding of facts, yet 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 Organization (WHO), the UN Human Rights Council, and the Commissioner-General of (the recently discredited) UNRWA.
UN'reliable Submissions. The writer questions the ICJ relying on South Africa's 'evidence' from highly questionable UN agencies such as UNRWA where at least 12 of its employees were found to have had connections to Hamas's Oct. 7 attack on Israel, and around 10% of all of its Gaza staff have ties to Islamist militant groups. (Photo by Abed Rahim Khatib/Flash90) 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 by a delegation of three Hamas officials to Pretoria. She also visited Iran on 22 October 2023.
This affability with the Islamic Republic could, as Justice Sebutinde justly remarked, actually be put to constructive use:
It was brought to the attention of the Court that South Africa, and in particular certain organs of government, have enjoyed and continue to enjoy a cordial relationship with the leadership of Hamas. If that is the case, then one would encourage South Africa as a party to these proceedings and to the Genocide Convention, to use whatever influence they might wield, to try and persuade Hamas to immediately and unconditionally release the remaining hostages, as a good will gesture.
Judge Julia. In her dissenting view, Uganda's representative to the International Court of Justice Julia Sebutinde, argued that the core of the dispute was fundamentally political, not legal, and asserted that South Africa failed to establish and clear indication of genocidal intent by Israel. (Photo credit: ICJ)
Is it unreasonable to detect a thinly disguised strain of antisemitism in South Africa's 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 desire 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 disenchantment, as someone who contributed to the struggle against apartheid and yearned for a South Africa founded on the values of justice and decency.
Sadly, the leaders of post-apartheid South Africa have not yet succeeded in following the laudable example of its first President. That they have the temerity 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, heartless adversary.
About the writer:
Raymond Wacks, Emeritus Professor of Law and Legal Theory, is the author of sixteen 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 week.
While the mission of Lay of the Land (LotL) is to provide a wide and diverse perspective of affairs in Israel, the Middle East and the Jewish world, the opinions, beliefs and viewpoints expressed by its various writers are not necessarily ones of the owners and management of LOTL but of the writers themselves. LotL endeavours to the best of its ability to credit the use of all known photographs to the photographer and/or owner of such photographs (0&EO).
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