I was always a little sceptical about South Africa’s application against Israel in the  International Court of Justice. Possibly because I am Jewish, possibly because Colonel Kemp, the British Colonel in command in Afghanistan and Professor John Spenser, an urban war specialist at Westpoint, two of the world’s pre-eminent military experts, had ridiculed the idea of a genocide.

Possibly  ̶  no, probably  ̶  because I am Jewish and grew up with the words “Destroy the memory of Amalek, do not forget,” which always sounded a little counter-intuitive.  So I thought that South Africa’s application to the International Court of Justice was mediocre and sponsored by some third party pulling South Africa’s strings.

Many people in South Africa watched the ICJ hearing. I was shocked when South Africa explained Netanyahu’s interpretation of Amalek. For secular Jews like me, Amalek has always represented the eternal enemy that rises against the Jews in every generation. However, the story of the prophet Samuel instructing King Saul to go to war, which is unfamiliar to most of us who only read the five books of Moses, added a new perspective. 

Another surprise was the revelation that my old law professor’s explanation of the dispute between South Africa and Israel was teetering on misrepresentation. Was there even a genuine dispute? The description of the situation in Gaza was tragic, but sadly similar to what occurs in all wars. However, in Gaza, the enemy was hiding behind civilians, wearing plain clothes. If the Court couldn’t enforce a ceasefire on Hamas, then it would be unreasonable to order Israel to immediately stop the war. South Africa’s demand for an immediate ceasefire was doomed.

The court ruled that there was a valid dispute, but refused to grant the immediate ceasefire. It handed down various precautionary measures. I was left with the impression that any warring country could be subjected to charges in terms of the Genocide Convention, as there was always the lingering doubt that just maybe there might be an inference or a “plausibility of genocide”.  South Africa hailed the judgement as a great victory, but Israel continued its war with Hamas. 

Three weeks later, the Director General of DIRCO (Department of International Relations and Co-operation) was on the radio justifying how “the ICJ had effectively ordered Israel to immediate cease fire,” when it was announced that South Africa had taken the matter back to the ICJ.  Surely it was to obtain clarity: was Israel ordered to cease fire? Was it violating the court order? No, South Africa’s claim of an immediate cease-fire was only for domestic consumption.  South Africa applied to the court for further urgent precautionary orders preventing Israel from staging further military action in Rafah, claiming that the offensive had already started. 

South Africa’s claim was brought in terms of Section 75(1). South Africa requested the Court to consider exercising its power under Article 75(1) of the Rules of Court. This Article provides that “The Court may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all the parties.”  South Africa reminded the Court that it had “full discretion to exercise this power without any hearing or submissions by parties, and should do so.”

As a legal hack, I had never heard of the term “proprio motu”. Professor Google explained: “In law, motu proprio (Latin for “on his own impulse”) describes an official act taken without a formal request from another party.” 

South Africa came to the Court with two submissions.  The first was that the Court was not doing its job and needed to be reminded that it should take action without a formal request (although it had just made one).  Second, the Court should take action without Israel being given a right of reply. No judge likes to be told that he is not doing his job and it would be extraordinary for a court to impose extremely onerous conditions on a party without hearing what that party has to say.  Not only did South Africa attempt to bully the Court, but at the same time said there was no place for Israel’s audi alteram partem right to be heard when considering the matter. 

Israel described South Africa’s new request as “unfounded in fact and law” and “morally repugnant.” Israel pointed out that Article 75(1) of the Rules of Court allowed the court to issue provisional measures of its own accord, but not at the request of a party.  It stated that factually there had been no change in the situation in Gaza on the ground since the ICJ hearing and the “unprecedented military offensive in Rafah” had not happened.

The application was fatally flawed. Not only did it alienate the court, but it sought to deny principles of natural justice. What was the point? What could South Africa possibly gain by it? Why even bring it? Was it a desperate attempt to prevent the puppet-master from using another third party to raise the matter in the United Nations Security Council? South Africa’s application was prima facie dishonest and irrational. 

The ICJ responded remarkably quickly and made short shrift of the South African application. It stated that there were already emergency measures in place throughout Gaza, which included Rafah and there was no reason to vary the original order.

The South African government is again trying to spin this as a win.  It stated that the Court “acknowledged that Israel’s planned incursions in Rafah would render what is already a humanitarian disaster even more perilous.”  Note the wording; no longer has Israel’s invasion of Rafah commenced – it’s stated grounds for extreme urgency and prevention of Israel’s right to be heard. It further stated that “Any decision by Israel to engage in military activities against Palestinians in the current circumstances is a violation of the order of the International Court of Justice.” This runs counter to the ruling of the Court which has emphasised “that the State of Israel remains bound to fully comply with its obligations under the Genocide Convention and the Order…” The order accepts that Israel is presently acting in accordance with the order.  Yet South Africa persists with the myth that Israel’s military activities constitute a violation of the Order – the absurd proposition that it dared not submit to the Court.

Is South Africa the handmaiden of Hamas, as alleged by Israel?  Is it demonstrating “an intention to abuse the Genocide Convention?”  From a decidedly partisan view, South Africa’s courting of, and illogical attempt to protect this genocidal terrorist organization, Hamas, should be seen in no better light than as the behaviour of an abusive schoolyard bully. With no immediate consequences, it can continue to bask in the attention it generates. As a Jewish South African, I find the government’s formal hosting of a genocidal terrorist group sworn to the destruction of Jews worldwide, and ignoring the views of its South African Jewish citizens, who are also slated for ultimate destruction by these terrorists, is deplorable and antisemitic. It has refused to explain itself to its Jewish constituency or engage with Israel, all the while pledging to ensure the safety and security of Palestinians in Gaza. 

What will happen when, several years down the line, the ICJ holds that Israel was not guilty of a violation of the Genocide Convention? When the views of Professor Spenser are upheld: that “For Israel’s part, it’s taken more care to prevent civilian deaths than any other army in human history”?  How is South Africa going to cleanse itself of its blood libel that Israel is a Genocide Nation?  “Whoops, sorry!” is not going to cut it! 

The views of the writer are not necessarily the views of the Daily Friend or the IRR.

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Craig Snoyman is a practising advocate of the South African High Court.