ICJ ruling in favour of South Africa on Gaza — now the hard, tough diplomatic work begins

South Africa’s 29 December 2023 brief to the International Court of Justice (ICJ) to urgently restrain Israel’s human rights and humanitarian abuses prompted former Israeli peace negotiator Daniel Levy to assert in a 17 January 2024 essay in the New York Times that “South Africa may have already done more to change the course of events (in that conflict) than three months of American hand-wringing”.

The nearly unanimous ruling on 26 January 2024 in South Africa’s favour, in which the ICJ endorsed the allegation that Israel was “plausibly” committing genocide in Gaza and granted most of South Africa’s proposed restrictions, validates Levy’s point. 

But on a key South African request for the ICJ to call for an immediate ceasefire, the court majority prudently decided to defer to government diplomacy. To do otherwise risked a split decision and was non-enforceable. 

But productive diplomacy requires partners willing and able to engage both antagonists in any conflict. This article assumes that South Africa has access to and influence with Hamas leaders, much as the US has access and influence in Israel, despite major differences in power and resources among the four. 

Since the presentations by South Africa and Israel at the ICJ on 11 and 12 January, the US administration of President Joe Biden has moved closer to South Africa, despite objections from Israeli leaders.

Recall that a day before the start of ICJ proceedings in this case, US Department of State spokesperson Matthew Miller declared that South Africa’s allegations that Israel is committing genocide are unfounded.

US Secretary of State Antony Blinken, who was visiting Israel that week, called South Africa’s genocide charges meritless, echoing White House spokesperson John Kirby, who had also branded the charges “meritless”.

On 25 January, however, Miller issued a more positive statement summarising a call between Blinken and South Africa’s international relations and cooperation minister, Dr Naledi Pandor, just before her departure for the Hague and the announcement of the initial ICJ findings in which they discussed the conflict in Gaza.

Topics discussed, he said, included “the need to protect civilian lives, ensure sustained humanitarian assistance to Palestinian civilians, and work toward lasting regional peace that ensures Israel’s security and advances the establishment of an independent Palestinian state”.

They also “reaffirmed the importance of the US-South Africa partnership and cooperation on shared priorities, including health, trade and energy”.

Implicit, of course, is that these shared priorities will also be essential for the reconstruction and sustainable development of an independent Palestine which are in all cases impossible in the absence of peace, security and respect for basic human rights. Immediately, no progress is possible without a ceasefire and the immediate provision of massive humanitarian assistance to alleviate the catastrophic conditions among civilians in Gaza. 

Read more in Daily Maverick: Israel-Palestine War

In short, South Africa and the US must each simultaneously and in close consultation try to find a modicum of common ground between the Hamas leadership and the government of Benjamin Netanyahu in Israel to enable a ceasefire and the release of hostages.

They can also coordinate appeals to other countries to avoid actions that could escalate regional tensions. Otherwise, the paramount urgency to alleviate the humanitarian crisis, which the principals in this war appear willing to tolerate, will not be addressed.

Adding to the diplomatic urgency, South Africa and the US will have difficult national elections this year that might result in major leadership changes. South Africa’s President Cyril Ramaphosa has been widely acclaimed by his voters for the case against Israel. Biden, according to a recent New York Times/Siena College poll, is disapproved of by 57% of voters and most strongly by 72% of broadly pro-Palestinian young voters considered vital to his re-election.

For all the reasons above, a new US-led diplomatic effort, in concert with Egypt and Qatar and no doubt helped by the ICJ ruling in favour of South Africa’s complaint against Israel, offers some hope that a deal between Hamas and Israel may finally succeed.

If so, Israel would suspend, for about two months, its war in Gaza that has already killed and injured tens of thousands of Palestinians. Hamas would release the hostages, numbering more than 100 and who have become a huge domestic issue in Israel. 

Leading this diplomatic initiative is William J Burns, a former US ambassador to Jordan and Russia, the first career diplomat to be directly promoted to deputy secretary of state in the Obama administration, author of an insightful book on diplomacy, and currently Biden’s head of the US Central Intelligence Agency.

To succeed there need to be parallel diplomatic pressures on the two sides. The role of Egypt, which has full diplomatic relations with Israel and Qatar and is close to Hamas, is important. Preliminary negotiations between Israel and Hamas are making progress, despite credible accusations by Israel’s government that employees of the United Nations Relief and Works Agency were complicit in Hamas’s 7 October 2023 attack that killed 1,200 Israeli civilians. Another reminder of the lack of confidence, much less trust, between the two sides in this dispute.

Judging from the many positive reactions to the nearly unanimous findings of the World Court, South Africa has unique trust and confidence as a true friend of the Palestinian people and a history of positive relations with Hamas.

Biden personally visited Israel in the aftermath of the 7 October attack and this appears to have won the lasting confidence of the Israeli public, even if relations with the Netanyahu government recently have become strained.

The bilateral partnership between the Biden and Ramaphosa administrations remains solid despite factional disputes in both democracies. The degree to which South Africa and America coordinate their efforts now to help secure an urgent ceasefire and massive resumption of humanitarian assistance in exchange for the release of the hostages will be a huge accomplishment.

The hard work of diplomacy to promote conditions in the region conducive to the emergence of new and pragmatic leaders of a sovereign state of Palestine and Israel will take time. 

But for now, the case that South Africa brought to the World Court was a welcome reminder of our common humanity. DM