South Africa's case for Palestine is completely topsy turvy

We live in a topsy turvy world. White colonial Jewish oppressors are multi-coloured Israeli people. Jewish terror victims are terrorists. Gaza is occupied but has an independent government and military. Jews comprise 0.2 per cent of the world's population but oppress 1.5 billion Muslims. Israel is not allowed self-defence. Palestine must be Jew-free but Israel is accused of Jewish apartheid, despite Arab Muslim equal rights there.

In this Wonderland, every evil torture fantasy is blamed on its victim. Jews are to be exterminated but Israel is accused of genocide. Any informed person knows that the fantasy of genocide is formally embedded in the Hamas Charter, constant statements by Hamas leaders, their military preparations and actions.

Raphael Lemkin, a Polish Jewish jurist during the Second World War, pioneered the concept of genocide to encapsulate systematic murder with intent to exterminate a population group. Under the 1948 Genocide Convention, states commit to punish any such genocidal acts, conspiracy, incitement, attempts or complicity.

Not much intent against Jews has changed since then, it seems. Iran is a party to the Genocide Convention but no country has ever brought a case against Iran despite its years of genocide incitement and conspiracy against Israeli Jews. As Claudine Gay, Harvard University's immediate past president explained to the US Congress, a call for genocide against Jews may not be condemned outright but may be interpreted "in context".

In the UN's principal court, South Africa accuses Israel of acts of genocide in Gaza. South Africa's submission was lodged on December 28, with the initial hearings on provisional measures to commence in court this week, January 8. Israel has vowed to defend itself against this allegation and has appointed Professor Malcolm Shaw KC as representative and Justice Aharon Barack as judge ad hoc. It is the latest in a recent flush of genocide cases.

In November 2019, Gambia brought the world's first genocide case before the International Court of Justice for the Rohingya people of Myanmar. Gambia requested court orders upon Myanmar to end its military activities that could cause genocide. In January 2020, the court granted provisional orders against Myanmar. In July 2022, the court found that it had jurisdiction to consider the substance of the case, which it is currently still doing.

In February 2022, Ukraine brought a case, not to accuse another party of genocide, but to dispute Russian assertions. As a pretext for its invasion of Ukraine, Russia asserts Ukrainian genocide against ethnic Russians in eastern Ukraine. More relevantly, in March the court granted Ukraine's request for provisional orders demanding that Russia halt its military operations. The case is proceeding now through questions of the court's jurisdiction.

South Africa is seeking provisional orders that Israel halt military operations immediately. Concerning the 84-page South African submission, John Kirby, the White House coordinator for national security strategic communications, said that "We find this submission meritless, counter-productive, and completely without any basis in fact, whatsoever."

In South Africa's case, genocide accusations are all upside down. South Africa seems to support the Hamas acts and conspiracy to commit genocide against Jews. It hosted Hamas leaders, Khaled Mashal and Abu Marzouk, 10 days after Hamas launched its October 7 war on Israel. South Africa drafted its submission to shelter and support Hamas. The submission was undoubtedly prepared with the collaboration of Palestinian lawyers.

In its case against Israel, South Africa will be supported by interventions mostly from the Arab League, Organisation for Islamic Cooperation, and African Union, as well as by their individual members and likeminded states, who form about half of UN member states. This "pile on" strategy is a game winner. It is used repeatedly to urge judicial advisory opinions of the UN court against Israel. Such opinions are issued at the request of the General Assembly, which they control by votes. The UN Court will succumb to political dominance, as it always does.

It is unlikely that South Africa will provide positive benefits to aid Gazans, such as substantial supplies and refugee visas. This is a negative campaign. In today's South Africa, where public electricity, water and safety are failing, one remembers libels against Jews deployed by European authorities whenever a scapegoat was needed to release anger over societal troubles.

The South African genocide case is, more simply, lawfare, a misapplication of law to achieve effects similar to those achieved in traditional warfare to weaken or destroy an adversary. Lawfare deploys disinformation through legal channels as part of armed conflict, to delegitimise, criminalise, demoralise and demobilize an enemy. In particular, lawfare often undermines the purpose and intent of international law, as it does here to the Genocide Convention.

In July 2022, Australia and 42 other countries signed a joint statement in support of Ukraine that said that "It is in the interest of all states parties to the Genocide Convention, and more broadly of the international community as a whole, that the convention not be misused or abused." Australia then intervened in 2022 and filed its own submission in 2023 in support of Ukraine.

Australian anti-Israel activists are urging the federal government to make a submission likewise in support of South Africa. However, Australia should vigorously oppose this case. It abuses the Genocide Convention and subverts international humanitarian law, politicizes the rule of international law, and is simply unjust, dishonest and ultimately poisonous.

South Africa's "pile on" lawfare game is not in Australia's interest. "For if one drinks much from a bottle marked 'poison,' it's almost certain to disagree with one sooner or later," Alice wisely observed.