SA weaponising International Court of Justice against Israel

As 2023 drew to a close, South Africa pulled the trigger on its latest anti-Israel initiative, weaponising the International Court of Justice (ICJ) in The Hague in order to promote a modern blood libel against the only Jewish state and fuel the fire of antisemitism around the world.

The 84-page application instituting proceedings against Israel includes a request that the court require Israel immediately to suspend its war against Hamas. The case that South Africa brings is a clear example of “lawfare”, an abuse of legal processes and legal institutions in order to advance political and propaganda aims against Israel and buttress the internationally proscribed terrorist organisation Hamas.

South Africa’s application is plainly supportive of Hamas, but this isn’t surprising. South Africa has form, from its support of Muammar Gaddafi, one of the biggest sponsors of terrorism, including the Lockerbie bombing, which killed 259 people in 1988, to its current close and deepening relations with Iran, the world’s foremost state sponsor of terror.

Though South Africa’s latest move may have been anticipated, it should nevertheless be of deep concern to all law-abiding states and upholders of the rule of law because it’s a blatant attempt to exploit the international legal order with a bogus allegation of genocide against Israel.

It’s plain that South Africa has tailored its application to the ICJ to focus on genocide because, as a party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, Israel has accepted the jurisdiction of the ICJ in relation to this specific treaty. The charge also fits with South Africa’s increasingly vitriolic political statements promoting falsehoods against the Jewish state.

It is, however, exceptionally grotesque that South Africa is seeking to abuse a legal term famously coined by Raphael Lemkin to label the systematic extermination of Jews by the Nazis in the Holocaust. The irony shouldn’t be lost.

On a practical level, the charge of genocide provides a vehicle for South Africa to engage in this propaganda exercise in light of a recent decision by the ICJ. In a case between the Gambia and Myanmar, which also concerned the genocide convention, the court recognised a form of standing before it on the basis of “erga omnes” obligations, which are owed to all.

Following that case, South Africa argues that the “dispute” which it raises before the court concerns its own obligations, as a state party to the convention, to undertake to prevent genocide, as well as Israel’s compliance with its obligations under the convention.

The definition of genocide isn’t at issue. It’s well settled, commonly agreed, and articulated at Article II of the convention. The critical aspect of genocide is the intention to destroy, in whole or in part, a national, ethnic, racial, or religious group, as such. Only if that intention is established is the legal test for genocide met in respect of specified acts such as killing or causing serious bodily or mental harm to members of a national or ethnic group. What connects these acts is that they serve the intention or the purpose of destroying a specified group.

Such acts are necessary but not sufficient to satisfy the crime of genocide; they must be accompanied by an intention which establishes that the specified acts had a genocidal purpose.

In Israel’s case, the allegations are false. The defamatory application put forward seeks to quote Israeli leaders, but does so without context and consistently misrepresents the statements as relating to Palestinian civilians, rather than Hamas terrorists.

Some of the material is simply invented, for example where it purports to quote a Danny Neumann calling for the complete destruction of Gaza, a “former Israeli Knesset member”. No such member exists. Against this context, we shouldn’t forget the words of senior Hamas official Ghazi Hamad in October last year, when he stated that the terror group would repeat the 7 October massacre “again and again” until Israel was “annihilated”, openly admitting the group’s genocidal intentions.

Israel’s actions are equally grossly distorted. Every state’s primary obligation is to keep its citizens safe. Over the past three months, Israel has been defending its citizens from a genocidal attack from the terrorists who have governed Gaza for the past 17 years. Since the genocidal atrocities of 7 October, Hamas and other Palestinian terror organisations have continued their attacks, firing more than 13 000 rockets targeting the Israeli civilian population.

The current estimate of the ratio of civilian to combatant casualties in this war is 2:1, against a global average of 9:1, according to United Nations statistics. This is unparalleled in urban warfare, and testament to the unprecedented measures Israel has taken to protect Palestinian civilian life.

South Africa’s application is unprecedented in that it seeks a declaration from the court that Israel should be prevented from defending its civilian population against the estimated 40 000 strong Hamas forces.

The US government has said: “This submission [is] meritless, counterproductive, and completely without any basis in fact whatsoever.” The reputation of international law is hanging in the balance and the world will be watching this week’s hearing to see if the ICJ will protect the international legal order from this abuse.

• Natasha Hausdorff is a barrister and legal director at UK Lawyers for Israel Charitable Trust.
• This article was first published in the Sunday Telegraph.