Lawfare: South Africa at the ICJ - DefenceWeb

Jonathan Katzenellenbogen

The South African government is proud of its activist foreign policy in speaking out on the big international issues of the day. Its case before the International Court of Justice (ICJ) in the Hague last week was applauded here and abroad as a sign that South Africa really cares about the Palestinians and human rights.

The case may also be an attempt at domestic nation-building. Such spectacles as Team SA in the Hague take minds off power cuts, the state of the economy and unemployment, and are useful for mobilisation just months before an election. And just like the Springboks, many felt the need to support Team South Africa at the Hague.

But the case is not a sports game, it is really lawfare – using the courts to damage and delegitimise an opponent. Lawfare is part of many wars and campaigns, and it can do great damage.

Israeli cause

Even if the ICJ rejects South Africa’s case, the Israeli cause will have been damaged as they have been seen to have been placed in a dock. Popular opinion does not look at the intricacies of a case. It is the visuals of Israel defending itself against having conducted genocide as well as the pictures of bombed buildings and children being rushed to hospital that count in people’s minds.

It is almost as though winning the case is all incidental to South Africa. It is the show of a large legal team in the Hague that really counts. The Court, on its own, cannot enforce these provisional measures. It will require a United Nations (UN) Security Council vote, as well as the possible deployment of UN peacekeeping troops. Due to the sheer danger and political risks, no country probably wants to send troops to Gaza.

There is no chance this case will speed up a political settlement of the conflict. Lawfare is about propaganda and raising pressure on an opponent. It is not fundamentally about truth and justice.

And the case is not about bringing about a peaceful settlement between Israel and Hamas. There is an open question as to why no Arab countries have joined South Africa in taking this case to the ICJ. Surely, a show of wider support at the Court would have shown that South Africa has allies. That would have added to the lawfare value of the case.

A number of Arab countries expressed their support for the case, but that was all. It is the US, the Egyptians, the Saudis, and the Qataris who are actually seeking a solution to the war and the freeing of the Israeli hostages held by Hamas. The case before the ICJ is irrelevant to the worthy work of trying to reach a settlement of the Gaza war.

Encouraged

Although no Arab countries joined South Africa at the Hague, it is possible that Pretoria might have been encouraged to petition the ICJ. Alec Hogg, who runs BizNews.com, has said it is hard to miss the coincidence between the ANC’s dramatic financial turnaround from last October and the government’s interest in Gaza. Frans Cronje, a former Institute of Race Relations CEO and now a political consultant, says the ANC has sold its foreign policy to Iran, the foremost backers of Hamas.

The court might come up with provisional measures in a matter of days, but deciding whether or not genocide has been committed could take years.

The South African legal team in the Hague last week asserted, but did not really prove, that genocide had taken place. They said there was a pattern in the Israelis inflicting massive numbers of civilian deaths, and used quotes from Israelis, including extremists, to back their case. What they did not prove was official intention to conduct genocide. At the start, South Africa’s legal team must have known they could only win at a stretch.

Mia Swart, a South African legal academic, who praises South Africa’s case as “bold”, wrote in the Sunday Times earlier this month that is a very difficult case to win but, “the application forms part of a multipronged approach to assert the rights of Palestinians.” So then it is really about lawfare.

Given South Africa’s failure to prove genocide, what is the court likely to decide?

No jurisdiction

The court could say it does not have jurisdiction over this matter as there was no prior dispute between South Africa and Israel. Petitions cannot be decided upon by the ICJ without the existence of a dispute in which both parties have directly exchanged their views. Israel argued that the ICJ should turn down South Africa’s petition on these grounds.

South Africa sent a “note verbale”, a diplomatic message, to Israel raising concerns about genocide in Gaza on 21 December last year. On 26 December, the Director General of the Israeli Department of Foreign Affairs replied, proposing a meeting with his South African counterpart at his earliest convenience to discuss the issues raised. However, Israel’s attempt to deliver the message was refused due to the holiday, and the South African Department of Foreign Affairs and Co-operation advised the Israelis to hand-deliver the note on 2 January. But in the meantime, on 29 December South Africa instituted action against Israel in the ICJ.

The Israelis argued that South Africa rushed to court without taking up their offer to hold talks to engage in the dispute. On 10 January the South Africans eventually replied to the Israelis saying that there was no point in holding talks.

The South African Department of Foreign Affairs might have neglected to fulfil a basic requirement to bring a petition to the ICJ.

But South Africa’s petition to the ICJ was about waging endless lawfare on the issue. A win would have been good, but it has still been able to make its point.

Activist foreign policy

Having taken up the cause of Palestinians in Gaza, South Africa could come under pressure to take up the causes of other groups whose human rights are trampled upon, and which could face genocide. If South Africa really wants to pursue an activist foreign policy, it has to be all-embracing, as no just cause can be neglected. There is no sign that it is prepared to do so.

What damages our credibility is that South Africa chooses issues on the basis of whether the issue is anti-colonial and can be used to prove a point to the West.

As my colleague Ivo Vegter pointed out on this site last week, South Africa has displayed immense hypocrisy on human rights and genocide matters. It remained silent on the onslaught from the Janjaweed militia in the Darfur region of the Sudan, the massive killings in the civil wars in Syria and Yemen, and the Russian war against Ukraine.

In line with its activist foreign policy, South Africa called earlier this week for the US to end its “occupation” of Guantanamo Bay, on the southern coast of Cuba. But we have not called on Russia to end its occupation of eastern parts of Ukraine.

That alone undermines any claim to moral authority that we might make.

Jonathan Katzenellenbogen is a Johannesburg-based freelance financial journalist.