Both South Africa and Israel have claimed victory in the ruling handed down by the International Court of Justice (ICJ) last week. In much of the local press, South Africa is being heralded for its moral leadership and a return to the values of Nelson Mandela.
Yes, South Africa won a technical victory in the Court finding the matter was within its jurisdiction. But South Africa failed to achieve its main goal of an ICJ-ordered ceasefire. As one of the dissenting judges on the Court pointed out, the provisional measures, ‘are of a significantly narrower scope than those requested by South Africa’.
Instead, the Court’s provisional measures remind Israel of its existing obligations under the Genocide Convention. It has also ordered Israel to report back monthly on what it is doing to meet these obligations. That is not a legal win.
South Africa’s win was really in the immense propaganda gains it has engineered from what was tantamount to an international show trial. For South Africa and its supporters, having Israel hauled before the Court was a victory in itself.
To ensure that this is the big takeaway in the mind of the world, South Africa has rapidly claimed a moral victory.
In his weekly letter this week, President Cyril Ramaphosa wrote, ‘As SA, we have called these genocidal acts that the international community has a duty to halt and hold Israel accountable for. As South Africans committed to peace, justice and human rights, we are proud to stand on the right side of history’.
We still do not know how and when the Court will rule on the larger question of whether Israel has committed genocide, but here we have our President declaring Israel guilty already and claiming we uphold international law. Had the ICJ been convinced by the South African argument that Israel was guilty of genocide in its Gaza campaign so far, it is likely it would have ordered a ceasefire.
There is no way, without hard evidence of genocide, that the Court would have ordered a ceasefire after the October 7th attacks and the ongoing rocket attacks on Israel. The precedent of ordering a ceasefire in this conflict would have severely undermined the right of states to self-defence when they are attacked. And with that the stature of the court and even international humanitarian law would have been severely damaged.
The Court was clearly also aware that in issuing a provisional order to Israel, Hamas could not be neglected. But the Court faced a problem, as Hamas is not a state and cannot be subject to orders of the ICJ. This is even though Hamas acts like the state of Gaza in many ways. Under the ICJ Statute, only state parties can bring cases to the court. In the 21st Century, with the plethora of separatist groups and civil conflicts, this is a glaring gap in the ICJ mandate.
In a concluding paragraph that was not part of the provisional orders, the ICJ did call for the release of hostages. This has largely been lost in South African celebrations of a victory.
In its decision, the ICJ stated: ‘The Court deems it necessary to emphasize that all parties to the conflict in the Gaza Strip are bound by international humanitarian law. It is gravely concerned about the fate of the hostages abducted during the attack on Israel on 7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release’.
Had the Court not included this paragraph, it would have been seen as one-sided and this would have damaged its credibility. But there is not much it can do about a non-state actor.
In his letter, Ramaphosa wrote, ‘We have been equally consistent in condemning the atrocities committed by Hamas against Israeli civilians on October 7, 2023 and in calling for the release of hostages still being held in Gaza’.
South Africa seems to have an open line to Hamas. Perhaps our diplomats might underscore to them Ramaphosa’s and the Court’s call for the release of the hostages.
If the hostages were to be released there would certainly be a furious debate in Israel about whether the war should continue. One of Israel’s war objectives would have been realised, and the release of the hostages might result in intense domestic pressure on Prime Minister Benjamin Netanyahu to order a withdrawal.
Among many here and abroad, the case has allowed the government to re-establish its Mandela-era credentials and claim the moral high ground. That is something the government values, as it must offer relief from having to deal with multiple domestic disasters. On the eve of our election, the TV images of ministers and the legal team in the Hague brought across an image that South Africa is respected and is being listened to overseas. It takes the minds of South Africans off power and water cuts, corruption, and high unemployment.
What is particularly important to the South African government is that the case has raised its stature among its good friends. Some of those good friends are anti-western, anti-colonial, and on the whole not very democratic. So Iran, Cuba, Venezuela and others are on side. But our other friends in the BRICS grouping like Russia, India and China may have their own trepidation over the precedents South Africa’s ICJ case may create.
One cost of claiming the moral high ground is that your actions might upset friends.
The court will rule on aspects of the two cases brought by Ukraine against Russia later this week. The first case is over the Russian invasion of Ukraine two years ago. And in the second case Russia has been taken to the ICJ by Ukraine over the downing of flight MH17 ten years ago. India is sensitive to claims of rights abuses against militant Sikhs and Kashmiris. And the Chinese government is tetchy about claims by some western rights groups that it is intent on committing genocide of the Uyghurs in the western province of Xinjiang.
There is also another cost of taking the high ground. A high degree of consistency is to be expected once you’re up there.
For example, will South Africa not recognise the outcome of the next Zimbabwe election if, as happened last year, many observer missions found that the elections were neither free nor fair?
Will we switch positions and criticise Russia over the Ukraine invasion and adopt a moral position on decrying rights abuses in Africa?
While the case matters a lot to our government, in reality South Africa’s entire exercise in taking Israel to the ICJ is a sideshow to the ongoing war in Gaza. It will not bring peace any closer. What counts are the ongoing US, Egyptian and Qatari efforts to bring about a settlement. That is the focus of all the parties that really count in this conflict.
[Photo: Screenshot of Cyril Ramaphosa on television about the ICJ Fri 26 January 2024]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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