Third time lucky? SA drags Israel to ICJ again

Like a dog with a bone, the South African government just won’t let go of its legal challenges against Israel. On 6 March, South Africa petitioned the International Court of Justice (ICJ) for the third time in as many months, once again asking the court to order an immediate ceasefire in Gaza.

The ICJ has already twice refused to grant this request. This time around, South Africa argues that Palestinians are facing genocide through “widespread starvation” in Gaza following Israel’s military operations in response to the 7 October attacks. Israel hit back strongly, accusing South Africa of doing the bidding of terrorist group Hamas and abusing the ICJ.

South Africa has accused Israel of flouting the interim measures stipulated by the court in January. In its latest appeal to the ICJ, Pretoria warned that Gazans are facing imminent starvation. According to the Hamas-run Gazan health ministry, more than 31 000 people have died in the hostilities over the past five months, millions are displaced, and the Gaza Strip faces dire and compounding humanitarian crises.

“The threat of all-out famine has now materialised,” the South African presidency said in a statement. “The court needs to act now to stop the imminent tragedy by immediately and effectively ensuring that the rights it has found are threatened under the Genocide Convention are protected.”

The spokesperson for Israel’s foreign affairs ministry, Lior Haiat, scathingly rejected Pretoria’s latest gambit. He said on X, “South Africa continues to act as the legal arm of Hamas in an attempt to undermine Israel’s inherent right to defend itself and its citizens and to release all of the hostages.

“The repeated requests for provisional measures made by South Africa in order to assist Hamas are yet another cynical exploitation of the International Court of Justice in The Hague, which has already twice rejected the baseless attempts to deny Israel its right and obligation of self-defence.

“Israel acts and will continue to act in accordance with international law, including by facilitating humanitarian aid to the Gaza Strip, regardless of any legal proceedings. We call on the ICJ to reject outright the new request of the representatives of Hamas.”

Experts are split over the latest appeal to the courts by South Africa.

Retired Judge Professor Dennis Davis said, “It’s clear, given the death and destruction in Gaza over the past [five] months and more, that an increasing demand from both the United States and the European Union for a ceasefire is taking place. As the main litigant in the ICJ case, I assume South Africa considers this to be added pressure although we all know Israel isn’t going to comply if an order against Israel is issued.”

“This third piece of litigation will be paid for by the South African taxpayer,” said Advocate Mark Oppenheimer, “but it’s unlikely that it will be for the benefit of South Africans. It will worsen the relationships with our trading partners like the United Kingdom, America, and the European Union, who all respect Israel’s right to protect itself from terrorist organisations like Hamas. It may, of course, very well benefit the African National Congress [ANC], which in all likelihood has been paid by Iran to facilitate this litigation.

“The South African government alleges that Israel is in contempt of the original court order,” Oppenheimer said. “It would of course be useful if the ICJ were to state one way or the other whether Israel is in breach of the order, given that the South African government has claimed on many occasions that the order amounts to a ceasefire. One would assume that this is the basis for alleging that Israel is in breach of the court order. Of course, it’s strange that they seek a ceasefire once they’ve claimed that they’ve already obtained one, which seems to demonstrate that the South Africans are engaged in a game of political rhetoric to persuade people that they gained much more than they really did from the original ICJ judgment.”

Analyst Sara Gon told the SA Jewish Report, “My sense is that South Africa is desperately trying to obtain a ceasefire on behalf of Hamas because it’s tied itself absolutely to Hamas surviving. Its perceived role as a fellow ‘liberation movement’ feeds its sadly redundant sense of past glory. Given that South Africa is a minnow in global terms, this also keeps it in the public eye more so than anything else could. However, to rush back to the ICJ for a third time because the United Nations says there’s starvation looming is potentially embarrassing for South Africa.”

She noted that Israel had been sending in hundreds of aid trucks, and airdrops from many nations had been made into Gaza.

“The ANC should be sure of its claims,” said Gon, “And the question should be why Hamas as the ‘government’ of Gaza isn’t doing more to assist its people? Those who understand Hamas for the jihadi organisation that it proudly proclaims itself to be know, first, that the suffering of its people is part of its armoury, and second, that as a consequence, it doesn’t really care. It’s a crucially useful source for its propaganda.

“The ANC’s devotion to Hamas makes it look like a moral crusade, but it’s a political crusade and its unseemly haste suggests that Hamas is making the demands. Evidence hasn’t been presented to show that the ANC is benefitting financially for this support, but for many, there’s a nagging feeling that it’s possible given the ANC’s careless disclosure that its financial woes have suddenly been resolved.”

In the latest twist, on 11 March, Belgium indicated that it would intervene in the case. Belgium said it wasn’t “taking sides” but this was “about strengthening the universality of international agreements”.