SA’s ICJ case against Israel continues to backfire

In the United States Congress this week, a resolution was introduced condemning the case of genocide against Israel brought by South Africa at the International Court of Justice (ICJ).

Meanwhile, Hamas and the South African government were quick to accuse Israel of “targeted killings” of Palestinians when 112 Palestinians were reportedly killed by live Israeli fire in a frenzied scramble for aid supplies in Gaza on 29 February. Israel refuted this claim.

Analyst Terence Corrigan said, “The South African government’s case was in the first instance about coming to the aid of an ally – Palestine, or whichever faction is in charge of it – against an enemy, which is how it defines Israel. Whatever merits its case may have had on the grounds of human rights or international law, its intention was to land a political blow to Israel, which would have been to tie its hands and prevent it from military operations. Failing to get the ceasefire was a major failure. It hasn’t been able to get a ruling that could be parsed into an argument that Israeli military action is effectively illegal. So it hasn’t gained the decisive strategic victory it sought.”

Referring to the deaths and injuries on 29 February, South Africa’s department of international relations and cooperation (Dirco) said in a media statement on 1 March, “This latest atrocity is another breach of international law and in breach of the binding provisional orders of the ICJ. Legal remedies are one route to end institutionalised impunity that Israel has enjoyed for decades. Legal remedies aren’t sufficient though, and the international community must now consider other measures to end the unlawful actions of the Israeli government. A first step is an unconditional call for a ceasefire by the United Nations Security Council.”

In December 2023, the South African government hauled Israel before the ICJ on charges of genocide against the Palestinians – especially in Gaza – following the terrorist attack on Israel on 7 October. Outraged, Israel called South Africa’s charges “baseless”, and claimed that South Africa was “functioning as the legal arm” of Hamas. Uncharacteristically though, Israel chose to defend itself before the ICJ.

The ICJ didn’t grant South Africa’s request for a ceasefire in Gaza. It also didn’t rule on the substantive issue of whether Israel was indeed committing genocide in Gaza. That process will play out over the next year.

The ICJ ordered Israel to report within 30 days on various measures it was taking to prevent a genocide in Gaza. Israel has complied by submitting a report, but it hasn’t been made public. It’s expected that South Africa’s response to this report will be placed in the public domain as another occasion to damn and demonise Israel.

In the interim, on 12 February, with Israel purportedly preparing to launch increased operations in the southern Gazan city of Rafah – to which hundreds of thousands of Palestinians have fled from the north – South Africa again approached the ICJ urgently to institute a ceasefire. It said the attack on Rafah would breach the Genocide Convention and the court’s January ruling. The court rejected this appeal on 15 February, saying that existing measures were adequate.

Said advocate Mark Oppenheimer, “The case brought by South Africa on 29 December last year primarily aimed to achieve a one-sided ceasefire that would require Israel to stop its military engagement in Gaza. Every single judge refused to grant that relief in the ICJ case. However, the South African government proceeded to tell everybody that it had, in fact, received a ceasefire. It then put this notion to the test by bringing a further application to the ICJ in which it asked the courts to intervene to prevent Israel from engaging in a military raid in Rafah. The ICJ refused to grant the relief sought by South Africa. This shows that the South African case was a failure, and that the ICJ in fact recognises Israel’s right to engage in a just war, that it has a right to defend itself, and the right to find its hostages and take them back into safety.”

Israel’s government said the second South African submission was “evidence of a renewed and cynical effort by South Africa to use provisional measures as a sword, rather than a shield, and to manipulate the court to protect South Africa’s long-time ally, Hamas, a genocidal terrorist organisation, from Israel’s inherent right and obligation to defend itself, in accordance with the law, from the terrorist assault it faces and to pursue the release of more than 130 hostages.”

Also, last month, separate hearings were heard at the ICJ following a United Nations request for a non-binding advisory opinion on the legal consequences of Israel’s “occupation” of Gaza, the West Bank, and East Jerusalem. South Africa was, unsurprisingly, an enthusiastic participant.

In another development, US Congressmen Ronny Jackson from Texas and David Kustoff from Tennessee introduced a resolution condemning the ICJ interim order, and South Africa for bringing the case in the first place.

Jackson said, “If South Africa and the ICJ truly cared about Palestinians, they would demand that Hamas release every hostage.” He said South Africa had fallen prey to “terrorist propaganda” that played into the hands of Hamas and its sponsor, Iran. He said the United States must defend its “greatest ally in the Middle East, and call out the ICJ for falsely calling Israel genocidal”.

This joins a string of recent congressional bills condemning South Africa which haven’t been passed.

While the ground war rages on, so do the legal battles, with no end in sight.