No end of ironies emanate from the International Court of Justice (ICJ) proceedings launched by South Africa last week against Israel charging the Jewish state with genocide in Gaza.
First, The Hague seat of the ICJ named “the Peace Palace” was ground zero for its opposite – a ferocious emotive attack on the words, conduct, intentions, and moral standing of a sovereign country.
Israel’s very existence was founded in the ashes of the grossest genocide in recorded history, the Nazi Holocaust of World War Two.
The term “genocide” was coined by Polish-Jewish lawyer Raphael Lemkin, whose study of anti-Semitic pogroms and the Holocaust led him to the belief there should be an international law against the destruction of groups.
The Genocide Convention of 1948, enshrined by the UN, is based on outlawing group destruction based on “their nationality, ethnicity, race or religion”.
Thus, Israel’s founding and existence are the direct product of public international law.
This point seemed entirely lost on South African Ambassador to The Hague Vusimuzi Madonsela, who told the court in his opening statement last Thursday “the application places Israel’s genocidal acts … within the broader context of Israel’s 75-year apartheid, 56-year occupation, and 16-year siege imposed on the Gaza Strip”.
To this extraordinary assertion, The Wall Street Journal riposted:
Not to mention Israel is not alone in besieging Gaza; look at Egypt, which blocks its border with Gaza as well.
Word choices
When Finance Minister Enoch Godongwana jetted off to the annual Davos World Economic Forum talk fest this week, he airily brushed aside any investor concerns on South Africa’s stance on this matter as simply a bilateral disagreement with the US which regards the ICJ case as “meritless”.
But he might find his reception there as chilly as the Alpine weather, with the perception South Africa has singled out Israel for exemplary treatment having cosseted and coddled innumerable dictatorial, violence-soaked regimes – from Russia to Sudan, running through Syria, China, and Iran.
Of course, in all these cases, the perpetrators and victims were from the same country (even in the case of Russia’s energetic slaughter of citizens of Ukraine, women and children included, whose very existence and independence the Kremlin denies viewing them as fellow Slavs).
Still, South Africa’s actual legal team made a better fist of things than its ambassador, not to mention Justice Minister Ronald Lamola, who kindly informed the media South African Jews can worship, in a novel turn of phrase, in “their churches”.
The second irony is reflected in the fact in 1947, one year before the UN enacted the Genocide Convention by a two-thirds majority of its General Assembly, it resolved to establish the State of Israel on just 0.4% of all the territory of the Middle East.
And he added: “As you know, in SA, we live side by side with Jews. They run companies [and] thriving businesses … it’s not about anti-Semitism.”
Professor Adam Mendelsohn of UCT noted:
Doubtless, if Lamola had studied the history of his own movement with greater care than his word choice, he might have discovered every white defendant in the famous Rivonia Trial was biologically Jewish and in the ANC pantheon which commemorates Joe Slovo – a founder of Umkhonto weSizwe – and Rusty Bernstein who wrote the Freedom Charter, neither was a “thriving” businessman.
On the subject of word choice, the Israeli legal team made a matzoh pudding of South African officials garlanding Hamas representatives with meetings, International Relations and Cooperation Minister Naledi Pandor’s pow-pows with the terror group, etc.
Although it missed out on motor-mouth ANC secretary-general Fikile Mbalula declaiming “from the river to the sea, Palestine will be free”, suggesting the entire state of Israel be eliminated.
Although much of the hype around the South African case, from wearing football scarves to addressing protesters, was performative, the heavy lifting inside The Peace Palace was performed by serious lawyers.
Mandela: We can only have one
This leads to the next, perhaps crowning, irony of team selection.
With racial bean-counting and party loyalty being the default position of practically every government department, running through the ruined landscape of state-owned companies, neither race nor ANC cadre deployment featured much, or at all, in the selection of the SA legal team at The Hague.
I counted, as is now obligatory in our gloriously “non-racial” country, at least four of the nine SA lawyers as white and probably not too many ANC cadres among their number.
Of the lawyers, Professor John Dugard is the one I know best since I was his colleague as a lecturer in Public International Law at the University of Witwatersrand from 1986 to 1989.
A few years later, when I led the Democratic Party in Parliament, I supported Dugard, first for appointment to the Constitutional Court in 1994 and the following year I nominated him for membership of the SA Human Rights Commission (SAHRC).
In both cases, the ANC energetically opposed his nomination, with even the great Nelson Mandela tracking me down to an obscure village in Switzerland asking me to remove Dugard’s name from the SAHRC list and replace it with Helen Suzman.
Mandela advised:
After his meritless removal from contention, Dugard wrote to me: “Obviously I am very disappointed not to be included. But I cannot say that I was surprised. I think/fear that it is easier for the proverbial camel to pass through the eye of the needle than it is for a liberal to enter the Kingdom of the New South Africa.”
Perhaps Dugard’s international law credentials and implacable opposition to Israel overcame his liberal sins in the eyes of his appointing authority for the case.
The irony extended further for “Team SA” when it came to selecting its ad-hoc judge for the case.
Again, it plumped for merit, not bias or party loyalty, in selecting Dikgang Moseneke, neither an ANC luminary (PAC, in fact) and fiercely independent.
Yet, when the ANC president had the opportunity to select Moseneke, a highly credentialed lawyer and jurist, as chief justice, Jacob Zuma passed him over in favour of the obscure Moegeng Moegeng, who while Moseneke was doing time in Robben Island, served as a prosecutor in the Bantustan of Bophuthatswana.
Not that the Israeli government proved to be a slouch on the hypocrisy front in its nomination of an ad hoc judge for the proceedings.
Its selection of its acclaimed former chief justice and Holocaust survivor Aharon Barak was a reminder his judicial activism drew the scorn – and worse – of Israeli Prime Minister Benjamin Netanyahu – whose attempts to neuter the judiciary led to fierce criticism by Barak of the prime minister.
SA ‘on holiday’
The penultimate irony, regardless of how this weighs on the final ICJ decision, was the revelation offered by the Israeli legal team that in fact South Africa’s entire rhetorical posture on negotiations and dialogue trumping violence and confrontation was built on a rickety foundation, as weak as the attempt to catapult the country from human rights delinquent to human rights champion.
This occurred when the Israeli side revealed attempts by Israel to meet at the highest level with Department of International Relations and Cooperation officials in response to South African claims were either rebuffed, ignored or unmet due to “the holiday season”.
The inference being South Africa was determined to prosecute the case and deliberately flouted the provisions of the Genocide Convention requiring initial dialogue on a dispute between state parties.
Of course, proving Israel’s “genocidal intent” will be the hardest bar since it can hardly be claimed this is the only explanation for the war in Gaza, as Israel offered evidence of South Africa’s “deliberately curated, decontextualised and manipulative description” of the conflict.
If South Africa succeeds in its claims on even a provisional finding, how does Israel exercise its international law right to self-defence, if it’s obliged to a ceasefire against Hamas?
Strange team selection
The final irony relates to team selection on the actual sports field and far away from The Hague, though a local echo of how the massacre of 7 October in Israel and the war in Gaza is poisoning local communal relations and exacting other victims.
That is the strange case of the deselection of young David Teeger from his captaincy of the SA under-19 team for the upcoming World Cup.
Here further ironies abound.
Few buy the “security” concerns offered (without any detail or evidence) by Cricket SA chairperson Lawson Naidoo.
Though if correct, it is worth pausing to wonder why pro-Palestine and anti-Israel local activists (Teeger was recently cleared for offering support for Israel Defence Force soldiers and then cleared of all charges) manage to use the threat of violence to remove cricket captains and the sale of an Israeli product at Woolworths.
Not much Ubuntu there.
So, on Cricket SA’s version, threaten violence and then penalise the victim of the intended violence, not the perpetrator of the threat itself.
Yet if it wasn’t violence, then it must be a consequence of political pressure. Either way, here is another paradox.
The day job of Cricket SA’s Naidoo is “executive secretary of the Council for the Advancement of the South African Constitution [CASAC]”.
Our Constitution enshrines freedom of religion, freedom of speech and the championing of transparency. CASAC regularly reminds government of its obligations under these heads. Perhaps Mr Naidoo needs a constitutional refresher course?
The ICJ case and the Cricket SA saga are reminders of the old legal saw, “hard cases make bad law”.
