Fourth time unlucky for SA vs Israel at the ICJ?

The South African government has initiated a fourth attempt since December 2023 to force a ceasefire in Gaza at the International Court of Justice (ICJ) in The Hague, Netherlands. South Africa again accused Israel of genocide in its war on Hamas in Gaza following the 7 October massacre.

This time, Pretoria is focusing on the southern Gazan town of Rafah, harbouring more than a million displaced Palestinians, where a full-scale Israeli operation is threatened. Commentators and legal experts believe, however, that this time, the court may lose patience with South Africa’s repeated entreaties.

South Africa launched an urgent appeal for the court to revisit its decisions – termed “interim measures” – and claimed Israel was non-compliant with all the court’s previous rulings. The ICJ has declined to order a ceasefire on the three previous occasions, and if it’s consistent, it should also rebuff the current lawfare sally by South Africa.

The Israeli team, led by Deputy Attorney General Dr Gilad Noam, and acting legal advisor of the ministry of foreign affairs, advocate Tamar Kaplan-Turgeman, had earlier objected, to no avail, to the short notice given for this hearing.

South Africa presented its arguments to the ICJ on 16 May, and Israel responded on 17 May. Israel was again accused of genocide; a second Nakba – the displacement of Palestinians in 1948; and “the continuing annihilation of the Palestinian people … which has shocked the conscience of humanity”. The South African team added, “Israel has defied this court by trapping, besieging, and bombarding an overcrowded Rafah, exacerbating the security and the safety of 1.5 million highly vulnerable Palestinians.”

Israel has identified almost 700 tunnel shafts under Rafah, with about 50 linked to Egypt, where Hamas could smuggle weapons, hostages, or its leadership into or out of the strip. The town remains a hotbed for Hamas terrorists.

Noam told the panel of judges, “South Africa presents the court yet again … with a picture that’s completely divorced from the facts and circumstances. Israel is engaged in a difficult and tragic armed conflict. South Africa ignores this factual context, which is essential in order to comprehend the situation. It makes a mockery of the heinous charge of genocide. As Israel has previously stated before this court, when dealing with the law, facts matter, truth should matter. Words must retain their meaning. Calling something a genocide, again and again, doesn’t make it genocide. Repeating a lie doesn’t make it true.

“South Africa warns this court that ‘if Rafah falls, so too does Gaza’. Once again, however, the reality is exactly the opposite. Only by bringing down Hamas’s military stronghold in Rafah will Palestinians be liberated from the clenched grip of a murderous terrorist regime, and the road to peace and prosperity may finally be paved,” Noam said.

“I’m hoping it’s a step too far, and they have overplayed their hand,” said Gavin Rome, advocate and senior counsel. “South Africa is relitigating, and is seeking through the back door what it didn’t get through the front. Its case is again replete with statements from the media, often out of context, and its ‘facts’ are heavily contested by Israel. If the ICJ rules in favour of South Africa this time, it will lose credibility as an impartial, considered court. No key new facts have emerged, and more and more humanitarian aid trucks have been into Gaza.”

David Benjamin, a South African born international lawyer in Israel said, “This is a highly cynical abuse of the court, and I hope it will say, ‘Enough is enough!’ South Africa has been disgraceful. Its use of disinformation and plain lies from unreliable sources as if they are true is shameful.”

Initially, Benjamin had some empathy for the South Africans using a legal avenue to try stop the suffering. “But it became clear as soon as South African politicians and the legal team opened their mouths that they were going to tap into the whole anti-Israel narrative, supporting Hamas and Iran. It’s not a rational, legitimate debate, but a demonisation of Israel. They have used words like ‘settler colonialism’, ‘apartheid’, ‘ethnic cleansing’, and ‘extermination zones’. This is outrageous, over-the-top, and scurrilous. It’s pseudo law – the abuse of legal processes to achieve political aims.

“South Africa’s reflexive filing of preventive measures without acknowledging the realities on the ground and purposefully misleading the South African public speaks to a sinister campaign of preventing Israel’s right to defend itself,” said Rolene Marks, a journalist and commentator in Israel originally from South Africa. “This follows last week’s Global Anti-Apartheid Conference for Palestine [held in Sandton], where the stated goal in its adopted declaration was clearly to dismantle the nation state of the Jewish people. South Africa is making a mockery of the ICJ, and is determined to throw as many legal tantrums as possible on behalf of Hamas while conveniently forgetting to ask for the hostages to be returned immediately, acknowledging the atrocities of 7 October, and ignoring the clarification from Justice Joan Donaghue, the former president of the ICJ, who said that the court’s ruling stated no genocide, and was misinterpreted.”

Said Kaplan-Turgeman, “Accepting South Africa’s arguments would give Hamas a green light to regain its grip on the Gaza Strip and to repeat the 7 October atrocities again and again, as Hamas itself has vowed to do. It would constitute a death sentence for the hostages.

“This case has been a nice distraction if nothing else for the ANC government,” said Rome. “Nobody has been asking awkward questions about the cash in the president’s sofa.”

The court is expected to rule in the coming days.