South Africa’s moral victory at the ICJ — the West was also on trial

On 26 January 2024, the International Court of Justice (ICJ) — colloquially called the World Court — delivered its order on the request for the indication of provisional measures submitted by South Africa in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel).

Those who hoped that the case would be thrown out of court were in for bitter disappointment. There are at least three cardinal issues to be drawn from the case: the credibility of the court was on the line — especially in the developing world. Secondly, South Africa rightly claimed victory, however qualified or circumscribed the victory is. Thirdly, the case was against Israel as much as its (mostly Western) backers.

https://www.youtube.com/watch?v=l4G55-Rcb34

Among other rulings, the court ordered that the state of Israel shall take all measures within its power to prevent the killing of members of the (Palestinian) group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and, crucially for South Africa’s call for an immediate ceasefire, the World Court ordered that the State of Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.

It is noteworthy that on this last order, 16 out of the court’s 17 judges (including Israel’s ad hoc judge Aharon Barak) voted in favour while the lone opposition vote was cast by Uganda’s Julia Sebutinde.

On the first of the three cardinal issues listed above (the credibility of the ICJ), the court acquitted itself with distinction. It seemed to eschew the usually domineering or behind-the-scenes role of the UN Security Council (which has sole responsibility for enforcing ICJ decisions with the five permanent members exercising veto powers).

It is not lost on many observers that Judge Joan Donoghue, President of the ICJ, is an American. This, to some observers, could have encouraged the suspicion that she was more likely to reject South Africa’s case. That this was not the case was a credit to Donoghue, and the ICJ as an instrument of the United Nations that should rise above national sympathies or biases.

Read more in Daily Maverick: ICJ ruling in SA’s genocide case against Israel lauded as ‘historic’ and victory for human rights

South Africa’s Minister of International Relations and Cooperation Naledi Pandor underscored this point by stating that “this case was about international bodies ensuring that they exercise their responsibility to protect us all as global citizens.”

On the second cardinal issue, South Africa was rightly upbeat to claim a somewhat circumscribed victory. The court did not order the immediate ceasefire that South Africa wanted. Asked if this was a blow to the case, Pandor responded: “I believe that in exercising the order, there would have to be a ceasefire. Without it the order doesn’t actually work”.

Finally, South Africa’s case against Israel should not be seen solely as a case against a single state. The Western world, with the United States leading the pack, was also on trial. In the developing world it is believed, with some justification, that the West is instinctively on Israel’s side for any number of reasons ranging from pangs of guilt over the Nazi pogroms, Western efforts in establishing Israel in 1947, and the powerful Jewish lobbies in America in support of Israel as a democracy in a presumably troubled neighbourhood dominated by authoritarians.

Read more in Daily Maverick: Middle East conflict news hub

The rise of fundamentalist terrorism has aided Israel’s support, as demonstrated by how frantically America responded to Israel in the aftermath of the 7 October 2023 attacks on Israel by Hamas.

The reckless Hamas attack, which Benjamin Netanyahu reiterates was “the most horrific attack against Jewish people since the Holocaust,” jolted America into action. Within 12 days of the attack, America showed its support for Israel with high-level visits by Secretary of State Antony Blinken, Secretary of Defence Lloyd Austin, and culminating with Joe Biden’s trip during which the US President bore one message for Israel: “You are not alone.”

This theme was taken up when South Africa opened the case against Israel. The outraged reaction from Israel and the United States was almost identical in wording. A bipartisan group of 210 members of the American Congress wrote a letter to Secretary Blinken to express what it said was its “disgust” at South Africa’s “grossly unfounded case against Israel at the International Court of Justice (ICJ).”

The legislators urged Blinken to echo their denunciation of “South Africa’s deeply hostile stance towards Israel”.  To underscore their point, the signatories accused South Africa of “barely acknowledging the Hamas terrorists who gleefully massacred, mutilated, raped, and kidnapped innocent civilians on 7 October [2023].”

South Africa is likely to experience renewed hostility and calls for possible ejection from benefitting from the Africa Growth and Opportunity Act (Agoa). Powerful Democratic Party Senator Chris Coons, who supports extending Agoa, is busily pushing for an “out-of-cycle” review of South Africa’s eligibility for Agoa. His stance was partly informed by what he argues is South Africa’s support for Russia against Ukraine. Coons will become even more shrill now that America is not so subtly accusing South Africa of taking the side of Hamas in the current hostilities in Gaza.

Allegations that South Africa coddles Hamas are a strawman diversion from what has been South Africa’s consistent condemnation of the 7 October attacks and its calls for the release of innocent civilian hostages.

After the 26 January ICJ ruling, Pandor asserted that South Africa’s case was against “the killing of thousands of Palestinians citizens who had no role in the awful act of hostage-taking and killing that was done by Hamas”.

The inference could be made that Western powers that have either stood back from the bombardment of Gaza, or those like the United States that have provided Israel with material support, are aiding and abetting the carnage that is unfolding in Gaza.

On this score, it could be argued, South Africa has engineered a massive moral victory, especially in the developing world. DM

Dr Emmanuel Matambo is the Director of Research at the Centre for Africa-China Studies at the University of Johannesburg and Prof David Monyae is the Director of the centre.