What South Africa Really Won at the ICJ

The moment, for those who knew the prime minister’s past, was incongruous. A former Nazi sympathizer who had proudly declared in 1942 that “we stand for Christian Nationalism which is an ally of National Socialism” bowed his head, knelt, and laid a wreath in memory of Hitler’s victims before his diplomatic entourage whisked him away to more important meetings.

Vorster was not in town to make amends for his Nazi past. He was there to cement arms deals with the Israeli government, which had, since 1974, become one of the apartheid regime’s most significant suppliers of military technology. In the years that followed, as many other nations imposed sanctions and distanced themselves from Pretoria, Israel drew closer—supplying the regime with everything from bombs and artillery shells to aircraft components and military training while cooperating on the construction and testing of missile delivery systems and even exchanging materials that were vital to the nuclear weapons programs of both countries.

In the dying days of apartheid in the late 1980s, when U.S. sanctions had begun to bite and Pretoria faced a widespread internal uprising and a major war in neighboring Angola and soon-to-be independent Namibia, Israel was a lifeline; so were visits to the front lines from leading Israeli generals and military advisors and the rhetorical support of some of its leaders. Then-Israeli Defense Minister Ariel Sharon urged the West to sell arms to South Africa; former Israel Defense Forces Chief of Staff Raful Eitan told a university audience in Tel Aviv that “[Blacks] want to gain control over the white minority just like the Arabs here want to gain control over us. And we, too, like the white minority in South Africa, must act to prevent them from taking us over.”

Two months after returning from his trip to Israel, Vorster presided over apartheid South Africa’s most infamous massacre, when police opened fire on protesting schoolchildren in Soweto—killing at least 176—many of them shot in the back. None of this was forgotten, especially not last week as the International Court of Justice (ICJ) issued a near-unanimous interim order instructing Israel to take provisional measures to prevent genocidal acts.

A picture showing Mandela sitting with the late Palestinian leader Yasser Arafat hangs on a barbed wire fence as Israeli soldiers arrive to the area to disperse a weekly protest by Palestinian activists against Israeli occupation in the West Bank village of Bilin on Dec. 6, 2013. At the time, U.S. Secretary of State John Kerry had urged Israeli and Palestinian leaders to take inspiration from Mandela in peace talks as Kerry wrapped up a visit to the region. Abbas Momani/AFP via Getty Images

At a time when Israel was backing Black South Africans’ oppressors, the ANC received support from the Palestine Liberation Organization (PLO). It came as no surprise that just two weeks after his release from prison in 1990, Nelson Mandela met with PLO leader Yasser Arafat, declaring, “There are many similarities between our struggle and that of the PLO. We live under a unique form of colonialism in South Africa, as well as in Israel.” In later speeches, he stated that “our freedom is incomplete without the freedom of the Palestinians.”

But there is another reason that South Africa brought the ICJ case when it did: It is desperate to rehabilitate its international image as a moral superpower, a reputation it cultivated during the heady post-apartheid days of the 1990s. But that reputation has been eroded by years of cozying up to authoritarian regimes, failing to condemn human rights violators, and shirking its responsibilities under international law.

By daring to take on a radioactive global issue, discussion of which is virtually verboten in Washington but which animates powerful feelings across the Islamic world and far beyond, Pretoria is once again perceived as heroic.

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Indeed, when wealthy Persian Gulf states were happy to sign (or begin negotiating) agreements with Israel that essentially threw Palestinians under the bus, and larger and more powerful nations that purport to support the Palestinian cause—such as Pakistan and Indonesia—made disapproving noises from the sidelines, South Africa chose to act.

It prepared and argued a case before the world’s highest court, challenging Israel—and by extension, its uncritical backers in Washington—to defend itself not in the court of social media and op-ed pages but within the framework of international law in a venue invested with great symbolism and gravitas.

Even if the court at this stage has not ruled that Israel engaged in any of the genocidal behaviors alleged by South Africa, its narrow interim finding that “at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention” has been celebrated as a victory.

In some ways, the outcome never really mattered. South Africa’s diplomatic masterstroke was to bring the case at all.

A rainbow appears behind Soccer City Stadium in Soweto, South Africa, on Nov. 30, 2009. The stadium hosted the opening match and final of the FIFA Men’s World Cup in 2010. Alexander Joe/AFP via Getty Images

The “Rainbow Nation” image brought tourism, international investment, and major global events such as the 2010 FIFA Men’s World Cup. That year, South Africa projected an image of itself as a multiracial melting pot, its citizens blowing joyfully on vuvuzelas in packed stadiums even if the success of the tournament obscured the reality of growing poverty, state corruption, and a violent undercurrent of xenophobia against the many migrants to the country fleeing wars elsewhere in Africa.

African National Congress supporters pose during an electoral meeting addressed by Mandela in Stilfontein, a Black township in western Transvaal, South Africa, on Jan. 30, 1994. Walter Dhladhla/AFP via Getty Images

On the foreign-policy front, South Africa’s moral compass had already started to falter. The ANC government had little to say—behind closed doors or in international forums—when its former ally, Robert Mugabe, plunged neighboring Zimbabwe into crisis by stealing elections in 2002 and subsequent years, attacking his political opposition, and fomenting a refugee crisis that sent over 1 million Zimbabweans across the border to South Africa.

Faced with the Syrian government’s brutal crackdown on demonstrators in 2011 that exploded into a subsequent civil war, South Africa abstained in a key U.N. Security Council vote. When the International Criminal Court (ICC) issued an arrest warrant for former Sudanese leader Omar al-Bashir in 2015, South Africa refused to seize him when he arrived on South African soil, despite the clamoring of local human rights lawyers—some of whom were in The Hague in January to argue the case against Israel.

South Africa’s image as a moral beacon was eroded by years of cozying up to authoritarians, failing to condemn human rights violators, and shirking its responsibilities under international law.

The ICC declared two years later that “South Africa breached its international and domestic legal obligations when it failed to arrest Al-Bashir. … South Africa must now put its weight behind international justice which faces increasing global challenges.”

Pretoria arguably had such an opportunity when Ukraine brought a case against Russia two days after Moscow invaded in February 2022; more than 30 other nations intervened to support the case.

Instead, South Africa’s first public statement from President Cyril Ramaphosa was to thank “His Excellency President Vladimir Putin” for taking his call and noting South Africa’s “balanced approach” calling for “mediation and negotiation between the parties.”

Ramaphosa’s government is filled with officials nostalgic for the Cold War days when Moscow aided the anti-apartheid movement and many ANC operatives trained in the Soviet Union; many have simply transferred their historical anti-imperialist allegiances to contemporary Russia. The sense of historical debt runs so deep that when Putin—also facing an ICC arrest warrant—planned to visit South Africa for the BRICS summit last August, Pretoria formally requested that the ICC exempt it from its legal obligation to arrest him. (Putin later decided not to attend in person.)

Then, last November, just after its foreign minister made an official visit to Iran and met with regime officials not exactly known for their commitment to human rights, South Africa welcomed a delegation of Hamas leaders to the country. They met with leading ANC figures and members of the Mandela family while praising the Oct. 7 operation and denying the extent of its brutality. All of this served to bolster the view that South Africa was not just standing up for Palestinian rights, but that it was explicitly embracing a group that celebrated anti-Jewish violence—all of which undermined Pretoria’s effort to cast itself as a potential peacemaker.

And just one week before South African lawyers put forth genocide charges against Israel in The Hague, President Cyril Ramaphosa welcomed a well-known genocidaire: Mohamed Hamdan Dagalo, known as Hemeti, who has been leading his Rapid Support Forces in a civil war against the Sudanese Armed Forces for nearly a year. He is better known for commanding the Janjaweed militias in a well-documented genocidal rampage in Darfur between 2003 and 2005 on behalf of Bashir’s government.

Yet at a time when Western double standards have been so spectacularly on display, most of the world seems more than happy to let Pretoria’s past and present moral shortcomings slide. Perhaps that’s because, listening to the formal legal proceedings, punctuated by a robed American judge reading out the court’s interim decision in The Hague’s imposing Peace Palace, many Palestinians and their supporters felt genuinely heard for the first time.

Photographers swarm the International Court of Justice to document the ruling on the Gaza genocide case against Israel made by South Africa in the Hague, the Netherlands, on Jan. 26. Dursun Aydemir/Anadolu via Getty Images

As the Brazilian writer Oliver Stuenkel argued recently in Foreign Policy, “Many developing countries see the West’s posture on Israel-Palestine as evidence that it is applying international rules and norms selectively—according to geopolitical interests rather than in a universal fashion.”

This suspicion existed long before the current war in Gaza. The perception that Washington and its allies cared about Ukrainian suffering at the hands of an adversary but not Palestinian suffering at the hands of an ally has been a driver of the nonaligned stance adopted by many countries—including Brazil and South Africa. But Israel’s bombardment of Gaza, which has displaced 1.9 million people and killed at least 26,000 has turbocharged this sentiment and made the leaders of many countries far more skeptical of any appeals from Washington or European capitals on humanitarian grounds.

The Israel-Palestine issue remains a third rail in British and U.S. politics. (Just this week, a Labour politician in Britain was suspended from the party for suggesting that the bombardment of Gaza amounts to genocide.) But for most of the world, it is fair game. By bringing the case, South Africa has made it acceptable to accuse Israel of grave crimes in a major formal international setting. Moreover, Israel was forced to respond legally rather than rhetorically.

Most foreign leaders—and populations—resent the West’s hierarchy of solidarity, which so clearly privileges the victims of its adversaries over those of its allies.

Aharon Barak—Israel’s own ad hoc judge in The Hague and a Holocaust survivor—rejected most of South Africa’s arguments. However, he voted with the majority on two of the six provisional measures, ordering Israel to punish rhetoric amounting to incitement and allow basic humanitarian supplies into Gaza. It was a damning outcome for Israel. Then, mere days after the court’s interim ruling, close to one-third of the current Israeli cabinet attended a conference hatching plans to reoccupy an ethnically cleansed Gaza—trampling on their government’s carefully constructed legal defense and gifting South Africa’s lawyers another potential line on their ICJ charge sheet.

Because the ICJ lacks enforcement power, U.S. pressure for Israel to act on the ruling’s interim measures is likely the only way they will take effect. The appearance that Washington is simply doing nothing will only reinforce the widely held perception that President Joe Biden’s democracy agenda and all U.S. talk about the sanctity of human rights—from Sudan to China’s Xinjiang—is empty rhetoric. “[T]here is a cost,” wrote Nesrine Malik in the Guardian, “to dismissing concepts and processes that underpin the very legitimacy of these countries’ claim to moral authority.”

Most foreign leaders—and populations—outside of Europe and North America now simply don’t take U.S. or European appeals to support Ukraine on humanitarian grounds seriously given the double standard they perceive and their resentment of the West’s hierarchy of solidarity, which so clearly privileges the victims of its adversaries over those of its allies.

They are likely to dismiss future moral appeals emanating from Western capitals on similar grounds—no matter how valid or urgent the cause may be. That’s bad news for Darfuris, Rohingyas, Uyghurs, and other victimized minorities; it could also be calamitous in places such as Taiwan or Guyana, should larger saber-rattling neighbors like China and Venezuela choose to make good on threats of war.

South Africa, meanwhile, has its eyes on a bigger geopolitical prize. The ICJ case has won it accolades across the global south; governments from Bangladesh to Namibia have formally intervened in support and the ANC government is no longer afraid to publicly contradict and challenge Washington. After hosting the BRICS summit in August, Pretoria made clear that it’s not content to merely follow the anti-Western line set out by Moscow and Beijing. It is seeking to lead the bloc in its own right.

After a year in which its credentials as a serious global player were legitimately questioned—over the Putin arrest debate and a major diplomatic spat with Washington over alleged arms shipments to Russia—South Africa has capitalized on the silence and hypocrisy of larger powers in an effort to reclaim its reputation as a moral beacon to the world. Whether deserving of that label or not, it is succeeding.