South Africa’s aim at ICJ is lawfare
By Jonathan Katzenellenbogen
Freelance journalist
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 domestically 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.
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 the 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 it 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 December 21 last year. On December 26, 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 January 2, 2024. But in the meantime, on December 29, 2023, 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 January 10, 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 fulfill 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.
The full article was first published by The Daily Friend.