When will Hamas get its day in court?
• SA’s cosy relationship begs the question whether the names of individuals from that organisation who have committed war crimes will be submitted to the ICC
So SA has declared victory in the Israel genocide case at the International Court of Justice (ICJ). I am not so sure. It is more like a stalemate in chess or a washed-out cricket match, except that the courthouse equivalent of the Duckworth-Lewis Method has not been invented yet. If there is a victory, it was already won when SA succeeded in dragging Israel into an international court.
The symbolic significance, though, of the case cannot be underestimated. Israeli impunity is on the spot. Watchdogs have been deployed at the gates of Gaza. Pundits will be checking facts before they blindly echo Tel Aviv. But in legal terms, let alone military terms, it won’t change anything. The outcome allowed a vile personage such as security minister Itamar BenGvirto to respond, “Hague Shmague”, but unfortunately his sentiment may be correct.
It is a slap on the wrist for Israel to be told to do all in its power to avoid genocide. The verdict allows Israel and its US lawfare accomplices to shrug and say, but we have been doing that all along, as we have been saying all along. The “knock on the roof”, the perfunctory warnings given to civilians soon to be attacked, can continue to provide cover for all sorts of atrocities that can then be ascribed to the collateral damage inherent in war.
It all comes down to interpretation. The line drawn by the SA government led by international relations & cooperation minister Naledi Pandor is that the humanitarian requirement placed on Israel implies a necessary ceasefire. You wish, Ms Pandor. That the sun sets implies it will rise again, but guess what, it will be in a different place. And are we going to see ANC Youth League cadres deployed on the front line waving the ICJ ruling at advancing tanks? Don’t bet on it.
What’s more, the government and the ANC have opened an ethical can of worms for themselves. Or to get that simile right, the worms it has already allowed to escape and gnaw the insides out of just about every institution in SA, are going to be even harder to get back into their rotting tins. Then again, they have become masters at flipfloppery and consistency in inconsistency.
The most glaring issue is the government’s and ANC’s relationship to Hamas. That the government is now going to pressure Israeli individuals to be charged at the International Criminal Court (ICC) too, is commendable, but the dynamics and approaches there are different and enable individuals in Hamas to be pursued as well. Israel did have one thing correct at the ICJ: for all the world Hamas looks like an even greater culprit under the general ethos of the Genocide Convention, as well as other human rights abuses such as abduction, maltreatment of corpses, indiscriminate civilian terror ...
Are we going to see the names of individuals from Hamas who have committed war crimes submitted to the ICC by the ANC? If not, what would the implications of that be, Ms Pandor?
As I have argued in an earlier piece, the case against Israel is important for all civilians who are potentially at the mercy of the kind of lawfare being developed by Israel and some of its Western allies, which are really all of us all over the world. But the exact nature of the ANCin-government’s relationship with Hamas is possibly of even greater importance at a local level for every South African and our still-evolving polity.
I believe the ANC and the government, like most supporters of SA’s case against Israel across the full political spectrum, have been sincere in their motivation, based on our sense of horror and that a universal injustice was being perpetrated in Gaza. But that should not blind us to the reality that a great part of the impetus towards filing the case was ideological as well. Insofar as it has to do with the oft-stated identification of the ANC as a historically rooted anticolonial movement with the plight of Palestine, with its many similarities with black oppression under apartheid SA, it is transparent and legitimate.
But Hamas is clearly more than just an anticolonial movement. It is a creature born from the worst of two additional worlds, religious fanaticism and terrorism. Its own Israeli-like contempt for international norms was horrifically on display in the October 7 pogrom in southern Israel, which was genocidal both in its attempts to eradicate whole communities and the oft-declared intention to eradicate the entire Israel.
Hamas is an antidemocratic movement that punishes dissidents with torture, death and expulsion and, lest we forget, had launched a coup d’etat after it was elected into power in Gaza. Amnesty International reports that in 2022 Gaza authorities issued 27 death sentences, up 11 from 2021. It treats women as an underclass, describing their worth as bearers of future warriors against the enemy (Israel) and physically prevents them from laying charges of domestic violence despite dozens being killed at home every year.
In my previous piece, I called it a death cult, a practitioner of a kind of necropolitics as theorised by SA philosopher Achille Mbembe, by having its own people killed to achieve its aims. Under its rule, teenagers have been sent to Israel as suicide bombers, which in itself has been declared haram by many Muslim scholars and is regarded as a crime under the Geneva Convention. Hamas describes the children who have died under Israeli bombardment as “martyrs”, which segues into its enemy’s narrative that when civilians are killed it is because they had been used as human shields.
That Hamas indeed uses human shields has been pointed out by human rights organisations, though it is also true that this may be unavoidable when Gaza is the place on earth with the greatest population density.
Still, the observation is common that Hamas knew exactly what the response was going to be after the October 7 attacks, and so must indirectly be held responsible at the very least for a readiness to martyr its own children.
Atrocities and abuses committed under the sway of religious interpretations or in the traditions of industrial-era terrorism are much different to those committed by an ostensibly democratic occupying power such as Israel, which makes it futile to try to find equivalences between them. The fact remains that the October 7 pogrom and its anticipated aftermath has resulted in by far the greatest mobilisation yet of supporters of Palestine worldwide, protesters that are characterised by their diversity.
Nevertheless, when two sides are so far apart in their political nature, any intervention can bear fruit only if it starts by bringing down the heat on both sides, by defanging the extremists. Hypothetically, legal steps that might follow against the far-right government in Israel have the potential of isolating an already-unpopular Benjamin Netahyau and engendering regime change.
But are the ANC and its cadres in state deployment going to use their proximity to Hamas to bring some sense to that organisation too?
The departments of international relations & cooperation and justice & correctional services are now on the spot. How is it going to prepare a response in less than a month’s time to whatever Israel writes in its report to the ICJ, another part of its order? Are there teams already in Israel and Gaza to collect information? Or is it going to be remote work from home?
There are many good and smart people in SA officialdom, but when it comes to collective action, SA has become synonymous with tardiness, laziness and an arrogant type of inaction. Stories abound of cadres sitting in hotels on observer missions and relying on outside sources to fill out their government-friendly reports.
Whose guidance are these hypothetical observers going to follow? The ANC’s, since many have been deployed by the party, or a government protocol to ensure objectivity? One has to assume that more paper crunches are coming, like those done for SA’s submission to the ICJ (excellent though it was). Otherwise, they will have to fall back on UN entities and the Hamas authorities. Just how friendly with the Hamas fascists are the SA go-betweens going to become?
This is pertinent speculation because the argument is often made that Hamas’ excesses can be forgiven or at least understood because it is fighting a war against an occupying power. This type of argument was made — and accepted by most the world — when the ANC adopted violence involving terror as policy against the various apartheid regimes.
Is this what helps to drive the ANC government’s identification with Hamas? A yearning for times when the national democratic revolution was openly fought for and not hidden in the cupboard with the Ouma beskuit?
The ANC had many faces, but the version entrenched in the front-line states pre-1991, just like Hamas, tortured and killed dissidents and then did all in its power to keep it all swept under the carpet. Just like Hamas is persecuting and harassing anybody who wants to report on its abuses, the ANC joined the National Party in having parts of the report of the Truth and Reconciliation Commission (TRC) redacted. We still don’t know the full extent of ANC abuses in the bush.
The ANC in government today is not the ANC of Quattro in Angola in the 1970s and 1980s, but what about the ANC of the future, the one that may be faced with defeat at the polls (which is not going to be in 2024)? Whenever it perceives a real threat to the status quo that is working so well for its patronage systems, there is an atavistic readiness to pull out the old cultural weapons.
Witness the Western Cape ANC’s pledges to make the province ungovernable in response to the legislature’s provincial powers bill. Witness the July 2021 riots and the R50bn damage and 354 deaths when even just a faction of the party felt threatened.
In terms of international ethics and morality, flimsy as they are, Pretoria’s intervention looks like progress for the somewhat faded doctrine of R2P — responsibility to protect. But it may also end up as a oneoff in the slow suffocation of legal process if SA does not ride the diplomatic wave it has created for itself and bolster this with R2P action in other parts of the world as well. Such as our neighbours in the Southern African Development Community (Sadc).
Congo, Zimbabwe, Angola, Mozambique ... are we at last going to see steps to bring to justice the perpetrators of the genocidal campaigns in the past in all these countries or pursue the suspicion of such atrocities, which is what underlay SA’s application for provisional steps against Israel at the ICJ? What about reinstating the Sadc human rights ombud that Robert Mugabe had removed?
Don’t bet on this happening either. On the contrary, the plaudits it got for getting Israel charged may provide the SA government with the impetus to pursue another, darker path in its diplomacy. Ever since the Mbeki administration, the emphasis has been on a vague policy of knee-jerk solidarity with African states, instead of the spread of democracy.
A key part of it in recent days has been the narrative that the West controls the ICC, and that this has led to a disproportionate number of cases against African states.
The ICC ’ s remit is to charge individuals, to prevent war criminals from disappearing in the anonymity of governmentality, and so SA’s stated objective is to use the ICJ judgment to apply pressure on the ICC to make progress with its investigation of Israel and its misdemeanours.
On the face of it, this is merely an extension of the campaign against Israeli excesses, a way to tighten the screws.
But SA under Ramaphosa has been as vociferous as past ANC governments in condemning the purported bias of the ICC. One of Ramaphosa’s weaknesses as a leader is a tendency to jump the gun when any hint of racism appears anywhere, from small incidents at home to a perceived antiAfricanism on a global level — but only among whites or westerners. The result is that well-meaning people and bodies that are on the side of Africans get demonised.
As I argued in my previous piece, the ICC is not meant as a service for governments to have a go at each other, but for ordinary victims of human rights abuses — any individual on earth can lay a charge at the ICC. It is also enjoined to the principle of complementarity — the legal processes of a target country must first be allowed to take their course, since it is immeasurably better for the purposes of the rule of law for a country’s war criminals to be tried by that country itself.
And because democracy and a culture of human rights are the least entrenched in Africa — where fewer than half of AU members have signed on to the Rome Statute on which the ICC is built — it stands to reason that ICC action will tend to be focused disproportionately more on the continent.
If the pressure on the ICC being envisaged by SA is meant to “fight back” against this, it would merely end up bolstering Africa’s many antidemocratic, strongman governments. SA would also play into the hands of those governments, including ones in the West, who are trying to throttle the ICC by providing it with as little in the way of resources as possible — a state of affairs that was explicitly raised, said justice & correctional services minister Ronald Lamola, when he met ICC officials in December.
The government’s coziness with Hamas has other undermining effects too. I found it embarrassing and demeaning of good Jewish people in SA to come out full guns blazing, so to speak, in defence of the Netanyahu government, one that consists of people who in SA would be derided as Eugene Terreblanche throwbacks. But such closing of ranks is understandable when confronted with a Hamasfriendly government.
A far more productive path would have been starting up or promoting dialogues between the many clear-headed Jewish South Africans and those supporting a free Palestine who feel no antagonism towards each other. Even before October 7, the goodwill has been recorded in a book by Stellenbosch theologian Marthie Momberg, 21 Voices from Israel and SA.
In fact, the most promising window of opportunity to a peaceful solution in Israel and Palestine is being opened, albeit at a chink, by the unpopularity of Netanyahu. Already in the US, in the wake of the ICJ ruling, voices are rising among Democratic Party members debating Israel on congressional committees that his time has come, and that support for Israel should be linked with his removal. If Netanyahu does indeed go, either jumping or getting pushed, the way is also open to get Israel’s beleaguered judiciary to charge him for war crimes.
Governments who have the future of Israel and Palestine at heart should do all in their power to prod Jewish organisations to pressure their friends in Israel to start choosing a moderate path. If this were to happen — can one call it a bestcase scenario? — Hamas will have to come with a quid pro quo for peace to advance.
There would be a clear role for SA to play in convincing Hamas to at least take on board some aspects of democracy, and the ANC has such a good story to fall back on in the “SA Miracle” that had led to Codesa and the TRC. But then it will have to desist once and for all from its policy of solidarity with strongmen and undemocratic governments.
ARE WE GOING TO SEE ANC YOUTH LEAGUE CADRES ON THE FRONT LINE WAVING THE RULING AS TANKS ADVANCE?
SINCE THE MBEKI ADMINISTRATION, THE EMPHASIS HAS BEEN ON A VAGUE POLICY OF KNEE-JERK SOLIDARITY