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South Africa’s Case Against Israel- A Misuse of the ICJ

Today, the International Court of Justice (ICJ) meets in the Hague to hear arguments from a South African delegation that Israel is committing genocide against Gazan Palestinians as it continues its counterterrorism operation against Hamas after the October 7th massacres. While not only meritless, the South African allegations present a clear misuse of the ICJ as a political tool to attack the Jewish State as it continues to target the terrorist organization responsible for brutally killing over 1,300 Israelis in the largest massacre of Jews since the Holocaust.


 

What is the International Court of Justice?

 

            The International Court of Justice, or ICJ, is the United Nations’ judicial body tasked with settling legal disputes between states and offering advisory opinions on international law.[1] However, the ICJ is not a criminal court– it has no jurisdiction on prosecuting individuals and only offers interpretation of international law between states. In the instance of South Africa’s case against Israel, the Court is hearing arguments on the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). However, not only does Israel fail to even come close to meeting any of the strict legal terms of the Genocide Convention,[2] the Jewish State’s intent and actions against Hamas sharply contrast the terrorist organization’s own explicit call for the extermination of the Jewish people.[3]

 

What Constitutes Genocide According to the 1948 Genocide Convention?

 

            The Genocide Convention was drafted after Raphael Lemkin, a Polish Jew who saw most of his family perish in the Holocaust, campaigned on bringing perpetrators of the worst crime against humanity to justice through legal means. The Convention, due to the severity of the crime of genocide, states extremely specific terms to consider actions as genocidal.

 

            There are two factors that the Genocide Convention considers when considering a crime as genocide: intent and actions. Genocide is committed if a state (a) intends “ to destroy, in whole or in part, a national, ethnical, racial or religious group,” and (b) by “killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group.”[4]

 

            Israel does not meet any of the standards imposed by the Genocide Convention. At no point has the Israeli government expressed the intent to eradicate the Palestinians in Gaza, and its tactics in its war against Hamas have been targeted only at the terrorist organization with considerable attempts to limit its civilian impacts. Throughout the war, Israel has dropped leaflets warning of imminent strikes, called civilians to warn against attacks, and even aborted attacks against combatants due to civilian presences.[5] In contrast, Hamas openly targeted civilians on October 7th as it killed, raped, and kidnapped civilians from their burning homes, and the terrorist group still targets civilians through rocket attacks on Israel’s southern and central communities.[6]

 

Our full report dismantling the accusation that Israel is committing genocide can be found here.

 

Why is the South African Argument a Misuse of the ICJ?

 

            The argument that Israel is committing genocide is nonexistent, and only serves to delegitimize the horrors of actual genocide victims. Genocide, due to its severity, should never be used sparingly and as a political buzzword. South Africa’s false accusations are not only wrong but hypocritical. Just last week on the 4th of January, the South African President Ramphosa met with the leader of Sudan’s Rapid Support Forces (RSF),[7] a paramilitary group responsible for the open genocide against civilians in West Darfur.[8] 

 

The double standard Israel faces in this ICJ is alarming, a sentiment shared by the U.S. Secretary of State Antony Blinken, who acknowledged that it “is particularly galling, given that those who are attacking Israel — Hamas, Hezbollah, the Houthis, as well as their supporter Iran — continue to call for the annihilation of Israel and the mass murder of Jews.”[9] Israel was founded just a few years after the Holocaust, during which time it became clear that Jews would never be safe without their own state. The painful memories of its own people’s genocide reverberates in the country to this day, and the current case in the ICJ is baseless campaign, which serves to demonize Israel, and trivialize the history of genocide.




Opinion of Lord Pannick KC and Lord Macdonald KC


The moral and legal context of the Israeli response to the events of 7 October is best summarised in a short letter written by Lord Pannick KC and Lord Macdonald KC, which was published by The Times on 20 October 2023:


Sir, Just as war attracts armchair generals, so it attracts lawyers who find violations of international law from the safety of their chambers without regard to basic legal principles of self-defence. As a distinguished judge once explained, criminal law understands that if people, in moments of unexpected anguish, do only what they instinctively believe is necessary to protect themselves from harm, this is the best evidence a jury can have that they are acting in lawful self-defence. What stands for people stands also for nations. When a state faces a threat, it may lawfully take all reasonable steps to protect itself. What is reasonable must be judged against the severity of the threatened outcome which, in Israel’s case, would be violent extinction. Hamas has signalled its intention to destroy Israel and all Jews living within her borders. As we have seen in the past, leaders who make existential threats against Jewish people should be taken at their word.

Easy allegations that Israel is committing war crimes in Gaza are typically made without reference to this horrifying context. All self-defence is violent; that is its point. The real question is whether the party carrying out this violence has any plausible alternative in the face of an enemy bent upon its genocidal destruction.


Lord Macdonald of River Glaven KC

Lord Pannick KC


House of Lords



 

Further Reading:

 

 

 

Olivia Flasch - Rebutting Allegations of Genocide Against Israel https://www.ejiltalk.org/rebutting-allegations-of-genocide-against-israel/



 


[1] “Frequently Asked Questions,” International Court of Justice, https://www.icj-cij.org/frequently-asked-questions.

[2] UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277,

[3] Bruyce Hoffman, “Understanding Hamas’s Genocidal Ideology,” The Atlantic, 10 October 2023, https://www.theatlantic.com/international/archive/2023/10/hamas-covenant-israel-attack-war-genocide/675602/.

[4]UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide.

[5] Raffi Berg, “What is South Africa’s genocide case against Israel in the ICJ?” BBC News, 11 January 2024, https://www.bbc.co.uk/news/world-middle-east-67922346.

[6] “Rocket barrage from Gaza triggers Sirens in central Israel; no injuries,” The Times of Israel, 8 January 2024, https://www.timesofisrael.com/liveblog_entry/rocket-barrage-from-gaza-triggers-sirens-in-central-israel-no-injuries/

[7] “President Ramphosa Meets RSF Leader On Developments Towards Peace in Sudan,” The Presidency of South Africa [PRESS RELEASE], 4 January 2024, https://www.thepresidency.gov.za/president-ramaphosa-meets-rsf-leader-developments-towards-peace-sudan.

[8] Kaamil Ahmed and Zeinab Mohammed Salih, “Sudan’s cycle of violence: ‘There is a genocide going on in West Darfur,’” The Guardian, 21 November 2023, https://www.theguardian.com/global-development/2023/nov/21/sudans-cycle-of-violence-there-is-a-genocide-going-on-in-west-darfur.

[9] Mike Corder, “South Africa tells the UN top court Israel is committing genocide in Gaza as a landmark case begins,” Associated Press, 11 January 2024, https://apnews.com/article/world-court-israel-genocide-gaza-south-africa-774ab3c3d57fd7bcc627602eaf47fd98.

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