A risky adventure to The Hague
SA’s decision to take Israel to the International Court of Justice (ICJ) for alleged genocide in Gaza has brought pride to many South Africans who feel it was a brave thing to do. Elsewhere, it has been described as a “gambit which suitably captures the risks inherent in the approach.
It is necessary to accommodate reasonable cynicism about the ANC’s motivation and the merits of the case. It is true that the party has long supported the Palestinian cause. It is one of several organisational shibboleths on foreign policy from deep into the party’s past as a resistance movement.
It’s not as if SA has a reputation for defending the defenceless. It has done nothing about the genocide in Sudan, and in the past entertained Omar al-Bashir, even though the International Criminal Court (ICC) had a warrant out for his arrest. As recently as last year, President Cyril Ramaphosa said he wanted to pull SA out of the ICC. The fact that SA is showing it still sees the value of global judicial institutions is therefore one positive.
More usefully for the ANC, the case provided a distraction from the failure of the ANC government to shed its senescent, often corrupt, and ineffective leadership. The distraction is no doubt deliberate. The case was therefore brought for political expedience (some of the ANC’s support base responds well to anti-Western rhetoric, so expect more of it) and because of the party’s historical support for the Palestinian cause.
For SA Inc though, the anti-Western sentiment could do more damage to our cause. It is another demonstration of the disconnect between SA’s foreign policy stance and its economic interests. Our largest trading partners will see it that way.
The government had managed to walk back the damage it did with its perceived support for Russia’s invasion of Ukraine, using some fancy footwork in getting the US and Europe back on side and averting the threat of sanctions. But now this: it may not do obvious or immediate damage to SA in global markets, but it adds over time to the risk premium attached to the country.
The ICJ judgment is eagerly anticipated. SA’s case was powerfully argued on the emotion and horror of the Israeli assault on Gaza. It was less strong on the legal points, where Israel took SA’s case apart on its legal merits. The bar to prove genocide is high. But this case was an application for a provisional order to stop Israel’s attack pending the bigger genocide case, which could take years. The bar for a provisional order is lower. Whichever way it goes will have global and domestic fallout.
One risk is that the court throws it out. Israel’s reaction to the unconscionable attack by Hamas is arguably disproportionate and is killing too many civilians. By trying to prove a genocide, SA could scupper real scrutiny of what is happening in Gaza.