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Reputational impact of litigation will reshape geopolitical landscape

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Picture: Remko De Waal / ANP MAG / ANP via AFP / Taken on December 12, 2024 – The Hague. South African lawyer Adila Hassim (SC) at the International Court of Justice (ICJ) prior to the hearing of the genocide case against Israel, brought by South Africa. According to the South Africans, Israel is currently committing genocidal acts against Palestinians in the Gaza Strip.

Some have criticised South Africa for not consulting the rest of the African Continent first before approaching the court

By Wesley Seale

As the international community awaits on tenterhooks the outcome of the interim ruling of the International Court of Justice (ICJ), many have marvelled at this magnificent feat accomplished by South Africa in the international arena.

The ICJ has heard 192 cases dealing with issues of international law and providing legal advisory opinions to member states of the UN since its formation. It has jurisdiction over all member states but not on all matters while having an integral role in the formulation of international law as well as regulating the relationships between member states.

South Africa vs Israel, as the latest case is known, is the third case entailing genocide. The first was The Gambia vs Myanmar case which was frequently referred to in South Africa’s thorough 84-page application.

The Myanmar case not only set the legal tone for genocide within international jurisprudence but certainly influenced the way member states viewed or related to the accused state.

Myanmar was accused of perpetrating genocide against the Rohingya people and its standing in the international community plummeted. Yet even worse still, so did the reputation of its Nobel Peace Prize winner, Aung San Suu Kyi.

Once heralded as a stateswoman, Aung San Suu Kyi has gone into almost obscurity because of the Myanmar case. Consequently, ICJ appearances and rulings do have a reputational effect and do isolate contravening states.

Listening to Israel’s defence at the court it was almost predictable. Israel chose one defence and one defence only. As in the Myanmar case, defence of its people and the Jewish people in general was the justification of its atrocities in Gaza.

Whitewashing its actions in Gaza in the last nine weeks, Israel painted itself as the victim even though it is the occupier. The Israeli defence team was unrelenting in casting South Africa as being the legal arm of an organisation that has purportedly committed more heinous crimes against Israel while simply denying genocide and its intent of wiping Palestinians off the map.

The international community must expect the Israeli government to ignore the ruling of the ICJ should the court rule in South Africa’s favour. Israel has been ignoring international law and successive UN resolutions since 1948, the year it was founded.

However, what the ruling in South Africa’s favour will do is isolate Israel internationally as was the case with Myanmar. Israel’s traditional allies, especially those democracies in the West, will have a tough time having to defend “the only democracy in the Middle East” in the face of an adverse ICJ ruling and its ignoring of that ruling.

For example, in an election year, the Biden administration in the US will be compelled to demonstrate that it respects the rule of law and is different from the Trump administration. The latter has little to no regard for international institutions and law.

South Africa has also laid a complaint with the International Criminal Court against certain individual Israeli leaders, and the ruling of the ICJ in its favour will certainly have much bearing on this complaint.

If South Africa loses the case, though, the impact will continue to be devastating for Palestinians and Israelis because it will prolong the war. While governments in the region will be hesitant to enter the conflict, people on the ground may take to the streets and continue with mass mobilisation.

Furthermore, South Africans will need to prepare themselves for a backlash, especially from the West, for being perceived to be standing with Hamas. Whereas many other countries have come out to support South Africa in this case, efforts will be made by Tel Aviv and Washington to ensure that South Africa is silenced.

The Ramaphosa administration’s approaching the ICJ was a stroke of diplomatic genius and, in its editorial on January 4, 2024, Israel’s left-leaning newspaper Haartez suggested that the application “accusing Israel of genocide and demanding proceedings against the state is a wake-up call for Israel”.

This case, however, will not bring the world closer to a resolution of the Palestinian question. What it will do if South Africa succeeds, is further isolate Israel and, if it loses, prolong the conflict. Instead, the case has drawn a line right down the middle of the international community with significant role-players, such as Russia and China, sitting on the sidelines observing.

Whereas some have criticised South Africa for not consulting the rest of the African Continent first before approaching the court, it is difficult to indicate whether this would have assisted its case.

As recently as 2021, Israel was granted observer status at the AU and, according to International Relations and Co-operation Minister Naledi Pandor, it was quite a task to get support for the withdrawal of that observer status. Currently, Israel’s observer status at the AU has been suspended and not withdrawn.

Pro-Palestinian supporters in South Africa must understand that all of this can and will change should the ANC not gain an outright majority in this year’s elections. Several commentators have spelled governance, policy and therefore economic uncertainty in the wake of such an outcome.

South Africa’s foreign policy therefore stands a real chance of being shifted come this year’s elections.

While the ICJ contemplates its ruling against Israel, ordinary South Africans will be given the chance either to vote for Palestine or for Israel. The reality of our vote is that stark.

Wesley Seale is a member of the provincial executive committee of the ANC in the Western Cape who has a PhD in foreign policy