Deconstructing South Africa’s use of lawfare in its case against Israel

Since the creation of Israel in 1948, International Law and its institutions have been used to delegitimise Israel and intimidate its citizens. The recent discovery of the United Nation’s Relief and Works Agency’s (UNRWA) influential role in denying Israel’s right to exist, inciting antisemitic hatred, and its glorification of terrorism, illustrates this.

It is common knowledge that anti-Zionism is not merely criticism of Israeli policy but is an attack on Israel’s right to exist as a Jewish state. In its quest to justify its anti-Israel rhetoric, anti-Zionists seek to deceivingly portray Israel as an apartheid state, engaging in colonialist oppressive policies and genocide, while ignoring the legal treaties, accords or partition plans underpinning Israel’s legitimacy.

A pervasive strategy to delegitimise Israel is the use of lawfare, whereby law or legal systems are exploited for a strategic rather than legitimate purpose. South Africa’s exploitation of International Law in the International Court of Justice to buttress its campaign to delegitimise Israel, is a prime example of lawfare. 

Through the vehicle of the ICJ, South Africa has propelled itself onto the International legal stage by being the only country prepared to publicly accuse Israel of genocide at the ICJ, where it presented a scurrilous narrative of Israel’s purported illegitimacy, going back to its beginning in 1948. It did so under the cloak of protecting the rights of Palestinians against genocide. Not even Israel’s own enemy neighbours were prepared to engage in this futile deception. 

What was remarkable was that the South African legal team sought an order that Israel unilaterally suspend its military operations in Gaza, which would result in Israel being rendered defenceless against an all-out military attack by the genocidal terrorist organisation Hamas. The South African legal team clearly understood this to be an intended consequence of the order sought. Fortunately, the ICJ did not sanction such a blatant and evil inversion of reality.

South Africa has pursued its objective tenaciously, belying the fact that it has no direct national interest in the outcome, neither geo-politically nor from a security perspective. It does beg the question however, of why it is so intent on using South African’s financial resources to wage its propagandist lawfare campaign against Israel, with little if any benefit.

Its attack on Israel at the ICJ also went against its own foreign policy of non-alignment, thus contradicting its stance in the Russia-Ukraine war. It also failed to consider its impact on its own citizens, seemingly oblivious to the trail of hate speech and anti-Semitism it has caused in its wake. This was reflected in its Minister of Justice Lamola’s denial that antisemitism exists in South Africa. A statement borne out of either ignorance, belligerence, or both. 

South Africa, not content to accept the ICJ ruling which conflicted with its objective of Israel suspending its military operations, has had no qualms feeding the media distorted accounts of its achievements. This was both to save face for its failures and to defend against critics objecting to South Africa’s squandering of resources in the ICJ that ought to be used for its own citizens.

After the ruling of 26 January 2024, South African leaders, publicly claimed the ICJ had ordered a ceasefire. This portrayed a false account of its ruling, which was an order for Israel to do everything within its power to to prevent genocide. Government leaders, including Minister Pandor then accused Israel of non-compliance with an order for a ceasefire, implying Israel was guilty of a failure to comply with international law albeit there being no order to comply with. 

The South African government’s attempts to hoodwink the public was again seen when it approached the ICJ on 12 February 2024, requesting further measures relating to Israel’s intended Rafah offensive. Despite lacking any factual or legal basis for this, it again exploited the ICJ as its political voice to repeat its accusations of genocide. However, it has discredited itself by failing to explain why it needed further emergency measures in relation to the Rafah offensive, when it claimed the ICJ had already ordered a ceasefire. 

Its request for further measures was shamelessly founded upon misrepresentations to the ICJ. Israel chastised South Africa’s mischaracterisation of a hostage rescue mission directed at military targets, as an “unprecedented Israeli military assault”. South Africa also perversely miscast a statement made by Israeli Prime Minister Netanyahu that, having ordered the IDF and the Security establishment to submit to the Cabinet a combined plan for evacuating the population and destroying the battalions as evidence of genocidal intent. Using a description of Israel’s steps taken to comply with International Humanitarian Law to support its case of genocide is either morally bankrupt or belies an extreme ignorance of the applicable law.

The ICJ dismissed any need for further measures. South Africa, true to character then released a misleading media statement on 16 February 2024 bearing the headline “South Africa welcomes ICJ Injunction on Protection of Civilians in Rafah”. No injunction was ordered. In fact, the ruling was that the “order of 26 January 2024 was applicable” and “did not demand any additional measures”.

South Africa again appeared at the ICJ on 20 February 2024 regarding an ICJ hearing on an advisory opinion on the legal consequences arising from the policies and practices of Israelis “in the occupied Palestinian’s territory including East Jerusalem”. While the timing is interestingly orchestrated, the two matters are unrelated. The request for the advisory opinion arises from a United Nations General Assembly resolution on 30 December 2022.

Israel has criticised the use of the ICJ for this purpose as another example of lawfare, using a legal process to advise on political issues which instead require diplomacy. South Africa, represented by Vusi Madonsela abused its public platform to accuse Israel of genocide despite this having no bearing on the hearing. 

South Africa’s campaign to delegitimise Israel has been relentless, despite discrediting itself in the process. Its over-zealous ideological attack on Israel has resulted in it eliminating itself from any role in the resolution of the conflict, giving lip service to its stated goal of saving Palestinian lives. 

It has instead joined ranks with those who call for a two-state solution, but whose conduct and words reflect the contrary. While Minister Pandor and her cronies continue to publicly chant the slogan “from the river to the sea, Palestine will be free,” used by Islamic terrorist organisations to openly call for the elimination of Israel, the notion of South Africa’s foreign policy being that of a two-state solution for Israel and Palestine, must be discounted as false.

Advocate Faryn Kantor
Johannesburg