NATASHA HAUSDORFF: SA lifts support for Hamas via latest ‘lawfare’ scheme against Israel

The latest instalment in the lawfare initiatives launched against Israel in the international legal arena is SA’s application at the International Court of Justice (ICJ) in the Hague, registered just before the new year. Applying for the court to order provisional measures, including that Israel “shall immediately suspend its military operations in and against Gaza”, SA has redoubled its support for the Hamas regime. It has levelled unfounded and outlandish allegations of genocide against Israel a mere few months after real acts of genocide were perpetrated by Palestinian terrorists in the bloodiest attack against Jews since the Holocaust.

SA’s shameful application constitutes the modern “blood libel” against the Jewish State. Its actions are perhaps less shocking when we consider the ANC's long history of support for Palestinian terrorism and the fact that SA's foreign minister held a call with Hamas leader Ismail Haniyeh in the days following the October 7 attacks, and last month Hamas officials reportedly joined members of Nelson Mandela’s family at an event to mark the 10th anniversary of his death.

I spent last summer in SA on a speaking tour about international law, and on my travels I saw how the rot of anti-Semitism in the form of Israel-hate had infected political and cultural institutions across the country.

In the light of media coverage of these developments over the last week, I must clarify some basic points and distinguish between the ICJ and the International Criminal Court (ICC). Although both international courts are based in the Hague, their ambits are quite different. The ICC concerns itself with individuals, the ICJ deals primarily with disputes between states. Israel is not subject to the jurisdiction of the ICC as it is not a party to the Rome Statue, a point on which the British government has previously been crystal clear. However, SA’s application against Israel to the ICJ must be heard despite its malicious, unfounded and offensive nature. Israel has been clear that the allegations made will be robustly defended.

Genocide, as defined in the 1948 Convention on the Prevention & Punishment of the Crime of Genocide, means committing certain acts, including killing, causing serious harm and forcibly transferring members of a group, “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. To say that SA’s 84-page application contains zero evidence of its allegations against Israel is to state the obvious. Its application is all the more mendacious in its attempt to present Israel’s lawful defence against terrorism, and its unprecedented measures to save the lives of Palestinian civilians, as genocide. SA’s attempts to play fast and loose with the definition of genocide spells trouble for all those who are committed to the rule of law and international legal order. 

There are further arguments that SA’s application in support of Hamas makes SA itself complicit in Hamas’s genocide, in violation of the same genocide convention, and also provides material support for terrorism, in violation of SA’s duties under UN Security Council Resolution 1373. These include legal obligations not to support terror and to take necessary steps to prevent the commission of terrorist acts. The application may also contribute to the commission of terrorist crimes under relevant international conventions to which SA is a party, including the International Conventions for the Suppression of the Financing of Terrorism & the Suppression of Terrorist Bombings.

All of these arguments could certainly be made and would have far more weight than the position SA has advanced to victim blame, defame Israel and stoke antisemitism with blood libels against Jews. SA’s application to the ICJ is part of a broader, even more troubling course of action. The application plainly seeks to hijack the ICJ for SA’s agenda to create an international system in which the Jewish state is isolated and stripped of its legal rights. If the ICJ succumbs to this campaign it risks becoming an instrument of anti-Semitic apartheid and losing its credibility as a court of law. This has serious implications for the international legal order, especially at a time of decreasing compliance with ICJ provisional measures.

SA’s actions constitute a new outrage, worse than crying wolf, worse than simple victim blaming. Its application falsely blames the real victims of a genocidal attack for perpetrating genocide where their precaution and restraint in self-defence has been unparalleled. This abuse of international legal institutions should worry every champion of justice and the rule of law. Its damaging effect on the international legal order and the credibility of international law is palpable. It sends a message to Hamas and fellow genocidal Islamist fundamentalists that that they may commit real war crimes and crimes against humanity with impunity while their victims are put on trial.

• Hausdorff is a barrister based in London.