By Raymond Wacks


The Montréal Review, January 2024



The apocalyptic scenes of privation and devastation in Gaza are medieval in their horror. Whether by accident or (more likely) foresight and design, Hamas has wrecked the lives of the people by whom they were elected. The scale of death and injury is a damning indictment of the callous indifference and cruelty of the jihadists whose well-heeled leaders are safely ensconced in five-star hotels or luxuriating in lavish spas. Provoking Israel by their atrocities of 7 October—murder, rape, torture, abduction, arson, and pillaging—the butchers have reaped a whirlwind whose calamitous consequences will endure for decades.

The Gazans obviously deserve better, and it is hard to understand why their voices have not been raised against the terrorists for triggering their disastrous predicament. Exhorting them to lay down their arms, and release the surviving hostages would bring an end to their suffering.

Around the world there is understandable sympathy for the plight of the Palestinian people. Huge demonstrations continue to press for a ceasefire. But, as hardly needs saying, a unilateral truce by Israel would simply allow Hamas to continue its subterranean warfare, the firing of rockets, and other unimaginable cruelties.

South Africa

Against this ostensibly intractable background, it has fallen to South Africa to undertake the role of conscientious accuser. Its application to the International Court of Justice (ICJ) seeks a ‘provisional measure of protection’ in order to impose a ceasefire to halt the conflict. The case was brought under the Convention on the Prevention and Punishment of the Crime of Genocide, enacted after the Holocaust. It defines genocide as a number of acts ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group…’

Intention is plainly a fundamental requirement of the offence. In its pleadings, South Africa enumerated a long catalogue of events, going back decades, that, it alleged, constituted factual evidence of genocide. It sought to convince the Court that various bellicose statements, uttered in the aftermath of the gruesome attacks, demonstrated the requisite intention by Israel to commit this ‘crime of crimes.’


A moment’s thought, however, would explain why, following the barbaric, sadistic onslaught, which left at least 1200 dead, many wounded, and many taken hostage, certain political and military leaders rashly declared strident calls to arms, promising vengeance and retaliation for the unspeakable suffering that befell so many of their innocent citizens and foreign visitors. To treat such injudicious remarks—made in the heat of a national tragedy—as evidence of a state’s intention to commit genocide is both disingenuous and highly tendentious, especially as they included comments made by individuals with no role in Israel’s military decision-making whatsoever.

Another pause for reflection could suggest that to allege genocidal intent by Israel is even less credible, given that it is responding to an enemy that is demonstrably committed to the Jewish state’s annihilation. The 2017 revised Hamas Charter is explicit in its ambition to continue its resistance until Israel is obliterated:

Palestine symbolizes the resistance that shall continue until liberation is accomplished, until the return is fulfilled and until a fully sovereign state is established with Jerusalem as its capital … [Palestine] was seized by a racist, anti-human and colonial Zionist project… 

A declaration that requires little clarification.


Is it realistic to expect a country to ‘play nice’ when its cold-blooded foe is openly committed to its destruction, and hides its means of doing so behind civilians in schools, mosques, and hospitals?

South Africa wishes to be seen as the conscience of the world. To this end, it predictably invokes the memory of Nelson Mandela to shore up its crumbling legitimacy. One might have thought that the moral standing of the African National Congress (ANC) government, mortally wounded by years of corruption and broken promises, had reached rock bottom. Yet its unabashed embrace of the Hamas murderers and rapists condemns it to ignominy from which it may never recover. A mere ten days after 7 October, South Africa's foreign minister, Naledi Pandor, held a telephone call with the leader of Hamas, Ismail Haniyeh, to express the country’s ‘solidarity and support’ for the Palestinian people. This was followed in January by a delegation of three Hamas officials to Pretoria.


Is it unreasonable to detect a thinly disguised strain of antisemitism in this opportunistic campaign? While strongly castigating Israel, the social justice warriors of Pretoria barely mention the malevolence of Hamas and other Iranian proxies. Could it be that in this conflict Jewish lives are regarded as somehow less worthy? Or is it simply that the ANC’s yearning to burnish its radical pro-Palestinian (and even pro-Iranian) credentials, blinds it to the suffering of the victims of these crimes—particularly as it faces a general election this year?

Among the ironies at play in this sorry charade is the fact that many South African Jews were in the vanguard of the struggle against the grotesque injustice of apartheid. They were tortured, imprisoned, and vilified by the apartheid state. In his memoir, Mandela reflects:

I have found [South African] Jews to be more broad-minded than most whites on issues of race and politics, perhaps because they themselves have historically been victims of prejudice.

He might have added that several had relatives who were victims of a real genocide at the hands of the Nazis.


Unlike most of his successors, Mandela was a paragon of humility and modesty. I was fortunate enough to spend an hour with the great man soon after his release from almost three decades of incarceration. These virtues were palpable; the almost total absence of ego and bitterness was genuinely unsettling.

This, unhappily, is a far cry from the tone of pious hubris of the South African submission to the ICJ, quick to assign all blame to Israel for defending itself against the sadistic barbarity of terrorists (exultantly recorded and celebrated by them). Yes, lawyers are hired guns, but they are also ‘officers of the court’ expected to present their case with a modicum of detachment and balance in accordance with the conventions of legal representation. These qualities were in short supply. There is little in South Africa’s application that acknowledges either the scourge of antisemitism, or the existential threats to Israel from its neighbours since its very establishment in 1948.


One would hope and expect a panel of experienced, impartial judges to comprehensively dismiss South Africa’s spurious claim. But the ICJ is not, of course, a ‘normal’ court; its members are elected by the General Assembly and Security Council of the United Nations to reflect a cross-section of legal systems and cultures. Moreover, it would be naïve to regard it as wholly non-political.

Only this week a South African journalist asserted that if her country’s legal representatives had been permitted to respond to Israel’s unfounded claims, it could easily have refuted them because South Africa’s were based on objective evidence from the United Nations! But, whether or not that is true, the procedure of the Court is well established. By the same token, one might argue that, unlike certain courts of common law jurisdictions, the ICJ lacks the salutary power to demand of plaintiffs who seek an equitable remedy, that they come to court with ‘clean hands.’ South Africa’s hands would, if such a principle were applied, be soiled by years of corruption, compounded by its affable relations with autocratic regimes and violent terrorist organisations.


The sad state of South Africa must, in large part, be attributable to the governance of the ANC. The statistics speak for themselves. In 1991 the GDP per capita of South Africa was $3,300 and the average world GDP per capita was $4,400. Today its GDP per capita is $6,000 and the world average is $13,270. In other words, the country has fallen from three-quarters of the world average to less than half. Over the same period, the average life expectancy in the world has increased from an average of 65.3 to 73.2, while South Africa’s has barely moved from 63.3 to 64.9.

The first thirty years of the ANC regime has witnessed high rates of crime, poverty, and unemployment. According to the latest annual statistics, more than 27,000 violent deaths were recorded in a single year. A mere 12 per cent of these killings have been solved. Solemn undertakings to provide basic utilities—water, electricity, housing—have not been met. None of this is easy to achieve, but ought not the focus of the administration be directed toward improving the plight of its people rather than posturing on the world stage and cosying up to terrorists and autocratic regimes?

The level of corruption in the country is well documented. It undermines not only trust, but corrodes the very essence of legitimacy. Nepotism, sharp practices, Machiavellian intrigue, conflicts of interest, and other unscrupulous conduct by politicians, particularly those in leadership positions, destroy confidence in the integrity of the legal and political order.


In fairness, I wonder whether my revulsion at South Africa’s allegation of Israeli genocide is principally based on the fact that it has been brought by a country whose motives seem, at best, impure. Is it the moral turpitude of the ANC that troubles me so deeply? Suppose that, say, Sweden, Switzerland, or even Spain had launched the application. Would that diminish my indignation? It would not, of course, alter the spurious or offensive nature of the case, but it might conceivably subdue my irritation. The idea that Israel is engaged in genocide is both odious and absurd. Whatever traction its advocates seek to gain from the use of this language, it actually undermines the Palestinian cause. If there is injustice, let us call it by its name. Simplistic sloganeering is unhelpful.

There are, of course, all too many examples of egregious attempts at genocide in our imperfect world, but they are usually confined to a single nation and spring from internecine tribal or religious divisions. The ‘final solution’—the wholesale extermination of the Jews (not merely in one country, but across all of Europe)—stands alone as a paradigm of inhumanity and iniquity.

The capricious abuse of ‘genocide’, ‘apartheid’, and ‘massacre’, has lamentably become commonplace. Factual and linguistic precision is more likely to generate solutions to difficult political problems than reckless rhetoric which may appeal to the demagogue; it has no place in the quest for peace and justice. Nor is it an answer to assert that these usages are merely metaphorical. Metaphor often enriches language. But it may also debase.

Sadly, the leaders of post-apartheid South Africa have failed to follow the laudable example of its first President. That they have the audacity to side with savagery, renders it morally unfit to stand before the ICJ denouncing a country engaged in defending itself against an abhorrent, inhuman adversary.


Raymond Wacks, Emeritus Professor of Law and Legal Theory, is the author of 16 books, and editor of ten. His works have been translated into more than a dozen languages. His books include Personal Information: Privacy and the LawPrivacy and Media FreedomPrivacy: A Very Short IntroductionLaw: A Very Short Introduction; and Justice: A Beginner’s Guide. Among his most recent publications are Protecting Personal Information: The Right to Privacy ReconsideredCOVID-19 and Public Policy in the Digital Age, and National Security in the New World Order: Government and the Technology of Information (with Andrea Monti). The sixth edition of his Understanding Jurisprudence: An Introduction to Legal Theory appeared in 2021, as did The Rule of Law Under Fire? His latest book, Animal Lives Matter: The Continuing Quest for Justice, is to be published next month.




The Montréal Review, September 2023




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