Illustrative image | On 11 and 12 January 2024, South Africa asked the International Court of Justice in The Hague to rule on possible acts of genocide by Israel in the Gaza Strip. (Photos: Michel Porro / Getty Images | EPA-EFE / Remko de Waal | Michel Porro / Getty Images | Peter Boer / Bloomberg via Getty Images) 
South Africa’s relations with Israel have nosedived, possibly irretrievably, after it took Israel to the International Court of Justice (ICJ) on genocide charges. In addition, Pretoria may have jeopardised its preferential trade access to the lucrative US market through the African Growth and Opportunity Act (Agoa).
South African diplomats are scurrying to try to save Agoa and other US aid.
SA has won much praise internationally and especially in the Global South for persuading the World Court to determine last Friday that there was a plausible case of genocide committed by Israel against the Palestinians of Gaza.
The court ordered Israel to prevent genocide, to prevent and punish incitement to genocide and to increase humanitarian aid to Gaza. But it stopped short of ordering Israel to implement a ceasefire in Gaza, which was the maximum provisional measure Pretoria had called for.
It also called on Hamas to release its remaining hostages whom it captured in its attack on Israel on 7 October.
The element of compromise by the ICJ allowed both sides to declare victory.
Soured relations
Israel’s national carrier, El Al, was reported to have suspended its scheduled flights to Johannesburg from 1 April because of the ICJ case and a decline in demand for the route. Two major supermarkets in Israel, Shufersal and Rami Levy, have stopped ordering grapes from South Africa because of concern about a boycott by Israeli customers, according to the SA Jewish Report.
The ICJ case has also soured relations with the US, though whether there will be consequences for SA is not yet clear. That may depend on adroit diplomacy from South Africa. Some officials believe that Pretoria could still avert punishment and get away with nothing more than bursts of angry and vituperative rhetoric from the US Congress.
Like the US, the UK and Germany publicly disagreed with SA’s referral of Israel and insisted that Israel was exercising a legitimate right to self-defence rather than committing genocide. But Pretoria does not expect any harm to its relations with them or with other European Union countries.
Read more in Daily Maverick: Middle East news crisis hub
Germany even saw something positive in the ICJ ruling — but also suggested that Pretoria should play a role in persuading Hamas to release the remaining hostages and stop its attacks on Israel.
“The court ordered some significant measures to prevent a further deterioration of [the] humanitarian situation,” said a source close to the German embassy in Pretoria. “As we would have expected it to too, given the gravity of the case.
“In that sense, the SA case has had positive results. No ceasefire, though. Hopefully, the provisional measures can be an element to achieve progress on the ground. Problem is that [the] court only binds state parties, ie, Israel, not Hamas.
“Therefore it only ‘asked’ for [the] release of hostages. But for improvement on the ground, Hamas must play a part as well (stop missile and other attacks on Israel). And who gets Hamas to do so? SA?”
The EU reacted to the ICJ’s ruling by reaffirming its continuing support for the ICJ as “the principal judicial organ of the United Nations” and insisting, “Orders of the International Court of Justice are binding on the parties and they must comply with them. The European Union expects their full, immediate and effective implementation.”
The real problem remains the US, SA official sources say.
An ‘affront’ to US allies
Atilla Kisla, the head of international justice at the Southern Africa Litigation Centre, said the provisional measures that the ICJ ordered had sent an important message to all the member states of the Genocide Convention that Israel was now potentially committing acts of genocide.
“And so from the perspective of states like the US who are aiding Israel and sending arms, that these countries might also potentially contribute to the genocide if the court later decides that genocide was committed in Gaza. It builds up pressure on Israel and on its allies. They might now give them aid but with conditions.”
Bob Wekesa, the deputy director of the African Centre for the Study of the United States at Wits University, said that apart from offending Israel, Pretoria must have been aware that its action would also have wider geopolitical consequences because it was targeting one of the US’s key allies in Washington’s widening war against its many enemies in the Middle East, including Iran, Syria and Islamist fundamentalists and terrorists.
“The US will consider it an affront to a key ally on matters of security in the Middle East,” he said.
Wekesa said South Africa had embarrassed Washington by placing it in the awkward situation of having to choose between its ally Israel and the world’s highest court.
“So I think the US will use its leverage in matters economical. Look at the leverage they have at hand. They have Pepfar [which has spent billions of rands on fighting Aids in SA], for example, where SA is one of the largest recipients. They might even want to revisit the issue of Agoa. In this, they will rely on all these senators including Chris Coons and others who have been very critical of SA.”
He was referring to a bill proposed by Democrat Senator Coons to renew Agoa in general by 16 years when it expires next year, and for the US administration to conduct an immediate out-of-cycle review of SA’s continued eligibility.
Read more in Daily Maverick: South Africa pins its hopes on an early 2024 US Congress renewal of Agoa
Elizabeth Sidiropoulos, the national director of the SA Institute of International Affairs, also thought it was possible that the US Congress could retaliate against Pretoria by excluding it from Agoa, which is up for renewal this year. But she didn’t think the Biden administration would support that.
“I think the Republicans are going to be rabid about it and there might be consequences for Agoa. That’s already on the table. So that could be an issue we might have to deal with. But I don’t think the Biden administration is going to come down like a ton of bricks on SA. They might make some statements, but I think they will be a little more nuanced.”
US response
Republican Michael McCaul, the chairperson of the House of Representatives foreign affairs committee, angrily condemned both SA and the ICJ’s ruling.
“The US must continue to provide unwavering support to Israel to defend itself against the threat posed by Hamas,” he said.
“I am deeply concerned that South Africa’s claims are politically motivated, highlighting its close ties with Hamas, and demonstrating its efforts to align with Iran, Russia, and the Chinese Communist Party’s interests.”
But the Biden administration’s response was measured. Samidha Redkar, the deputy spokesperson for the US embassy in Pretoria, told Daily Maverick after the ICJ ruling that: “The United States recognises that the International Court of Justice plays a vital role in the peaceful settlement of disputes.
“We have consistently made clear that Israel must take all possible steps to minimise civilian harm, increase the flow of humanitarian assistance and address dehumanising rhetoric.
“The court’s ruling is also consistent with our view that Israel has the right to take action to ensure the terrorist attacks of October 7 cannot be repeated, in accordance with international law.
“We continue to believe that allegations of genocide are unfounded and note the court did not make a finding about genocide or call for a ceasefire in its ruling and that it called for the unconditional, immediate release of all hostages being held by Hamas.”
This statement implied that the ICJ ruling might even have helped the US by declining to order a ceasefire, yet bolstering the US’s appeal to Israel to minimise civilian harm, increase humanitarian aid and muzzle Israeli officials who incite indiscriminate attacks against Palestinians.
And when US Secretary of State Antony Blinken was asked, at a press conference in Luanda last Thursday, whether SA’s referral of Israel to the ICJ would harm its relations with the US, he suggested they would not. He said this disagreement “doesn’t take away from the important work that we’re doing together in so many other areas and that we’ll continue”.
Pretoria’s position
SA officials told Daily Maverick they believed it was still possible to prevent punishment by the US. They hoped that any further congressional reaction would only be rhetorical and that this being an election year might distract Congress from any action against SA.
The officials are also counting on Congress not wanting to undermine the ICJ by attacking Pretoria too harshly for its actions against Israel because they believe that would also be an attack on the court itself.
If that is so, Friday’s ruling by the ICJ ordering Israel to take measures to prevent genocide might have helped SA’s cause, because now that the World Court has accepted that Israel has a genocide case to answer, SA enjoys some protection from the court, Pretoria believes.
Last week, 210 members of the US House of Representatives, mostly Republican but also some Democrats, issued a strong statement expressing their “disgust” at SA taking Israel to the ICJ and fully supporting Israel’s right to defend itself in Gaza against Hamas.
A SA official said he believed that the signatories of the letter had deliberately issued it before the ICJ ruling on Friday, “so that they should not be seen to be undermining the court. Because if it had gone after the judgment there is no way you would say they are not undermining the court.” DM