Light at the end of the legal tunnel

It was every Jew’s nightmare. The placards screaming out to the world “CEASEFIRE NOW” and “STOP THE GENOCIDE” suddenly became real as South Africa laid charges against Israel in terms of the Genocide Convention. The inversion of reality, calling  Israel an  Apartheid State rose to its apogee with South Africa laying a complaint with the International Court of Justice (ICJ).  With the support of hundreds of thousands of Hamas supporters worldwide, South Africa proudly announced its complaint against Israel and revealed its “A-team” to prosecute the case. Israel, the reluctant/always-absent litigant, announced that it would appear and defend itself at this United Nations Court.

The case played out at the International Court of Justice this past Thursday and Friday. South Africa’s “A-Team”  launched a malevolent attack upon Israel. Relying on allegations falling outside its personal knowledge, with the occasional emotional appeal to the judges, it alleged that Israel was committing genocide against the Palestinian population, and that Israel had shown a clear intention to do so. This was accompanied by a totally unjudicial attack on Israel as a rogue and unresponsive state that could not be trusted. It hadn’t even tried to engage when South Africa wanted to discuss the matter. The judges were also repeatedly reminded that all that South Africa was required to prove was that there was plausible belief that Israel was committing genocide. As such,  the court should order precautionary measures against Israel, including an immediate ceasefire.  Most startling of all, the A-Team said that as Israel was a party to the Genocide Convention a cease-fire should be ordered against it. Hamas as a non-party could not be subjected to any precautionary measures.

Israel took up the challenge to address the Court the following day. With personal knowledge, It emphasised that the war was not of its making and in response to Hamas’ brutal attack. Using its military standing orders its war conduct was in accordance with International Humanitarian Law. Statements made by third parties had no bearing on military conduct. It was Hamas that was responsible for the humanitarian crisis, pointing out that South Africa had cynically ignored the role Hamas had played.

What followed was a legal masterclass. Israel totally discredited South Africa’s submission that the matter was only referred after a genuine dispute between the parties. The court had no jurisdiction to deal with the matter. South Africa referred to the wording of the Convention pointing out that precautionary measures were to prevent exacerbation of the situation having regard to both parties’ rights. To grant an order against Israel, and not  Hamas, was an encouragement to illegal actors.

Israel struck back against allegations against its integrity, attacking South Africa’s competency and integrity. South Africa has misconstrued the concept of plausibility and the applicable standard required. It demonstrated comprehensively South Africa’s duplicity in alleging that a genuine dispute existed and pointed out that South Africa was in violation of Security Council resolutions.

So now, the world waits for the court to decide!  Will Justice or politics prevail? With judges appointed by countries from the overwhelmingly anti-Israel United Nations General Assembly, will it be a pre-determined political decision by judges owing fealty to their respective countries?  Or will true justice prevail? Realistically could an immediate ceasefire be handed down without the buy-in of one of the combatants? Might other precautionary measures unreasonably invade Israel’s right to safeguard its citizens?

So what hope is there for Israel? This is the first leg of the case, where precautionary measures may be ordered even if the court is not fully aware of the situation based on a plausibility that a genocide is happening. The second leg, determining a final relief on the merits as to the validity of the claim of genocide is still years away. On the merits, the court must find that the only possible inference is that Israel has committed genocide. Even at this early stage, this has already been disproven.  So Israel will be finally vindicated, but not without years of public allegations and opprobrium vented against it.

Israel completely disassembled South Africa’s case. In South Africa, a domestic court will not give interim relief where the main relief cannot succeed- but then politics would play a far less significant role. Why should it be any different in an international forum?. Diplomatically, South Africa’s reputation has been dented. Its Cabinet admitted that it decided to institute action against Israel on 8 December but told the Court, the dispute with Israel only arose in late December. This is self-admitted dishonesty.

South Africa lobbied hard to get international support for its application. Was its reliance on an ICJ decision equally cynical? Four judges complete their terms at the end of January. If a political decision was sought, then three of those judges were likely to have found in favour of South Africa- Russia, Jamaica and  Morocco. Two of the replacements, Mexico and Romania are more questionable votes. One American will replace another and South Africa obtains its first permanent judge in February. However, by arguing in January it can still rely on its own additional ad hoc judge. Four likely political votes now, as opposed to one in February? January was a far better time to bring the application than February.  Was this the reason that South Africa did not legitimately dispute the matter with Israel? If a political decision is given before February, South Africa is likely four votes stronger than it would be in February. Israel lacks the numbers to win a political battle.  However, if the matter is decided on legal principles Israel won hands down!

So while the terror tunnels in Gaza are being destroyed, there is light at the end of the legal tunnel for Israel. The only question is whether the end of the tunnel is immediately visible or will only come into sight some years down the line. For South Africa, it needs to honestly confront its own diplomatic and legal performance and spend more time dealing with its own domestic crises. For starters, South Africa needs to generate enough electricity to supply the light at the end of its own tunnels.