South Africa's allegations against Israel are wrong on both the law and the facts
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In this week’s theater of the absurd, the state of Israel will appear before the International Court of Justice (ICJ) in the Hague on Thursday and Friday. Israel will be there to defend itself against South Africa’s charge that the country is committing genocide against the people of Gaza by militarily responding to the October 7th terrorist attack committed by Hamas.
The 84-page filing is absurd on its face. Under the Convention on the Prevention and Punishment of the Crime of Genocide, genocide is a crime that requires specific actions and intent- i.e. acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.
By all accounts, including South Africa’s, Israel has the undeniable military capability to completely destroy the entire Gaza Strip in a matter of minutes if it so desired. Noticeably, Israel has not done so, and instead has taken extreme measures to protect Gazan civilians. Compare that complete lack of genocide and/or genocidal intent with the actions and intent of Hamas, a group that does not have the capability to destroy Israel but has repeatedly and officially vowed to, and tried to commit genocide.
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The application is also remarkably wrong on both the facts and the law. In the entire 29 pages South Africa devotes to describing the "genocidal acts committed against the Palestinian people," Hamas is mentioned just twice, in passing, in two sentences about the temporary pause that Hamas later broke.
Both the Geneva and Hague Conventions include instructions on conducting sieges under international law, and Israel has followed those rules to the letter.
The entire context of Israel’s military response is completely, indefensibly, ignored; nowhere does the application even consider the possibility that Israel’s actions are lawful under the doctrines of, say, military necessity, proportionality, force protection, or deterrence in responding to a terrorist organization hellbent on killing their entire population. This omission completely destroys the crux of South Africa’s case: because the acts in question were even arguably lawful, there is no evidence of either genocidal action or intent.
In fact, every one of the acts described in those 29 pages are perfectly compatible with international humanitarian law, except that South Africa declined to properly apply or even mention it. Yes, blockades and sieges could be war crimes – but they aren’t in this case; both the Geneva and Hague Conventions include instructions on conducting sieges under international law, and Israel has followed those rules to the letter.
Yes, Israel has killed doctors and fought in hospitals -- but those doctors are admittedly also terrorist commanders, and those hospitals undeniably command bases, i.e. legitimate military targets under international law.
Yes, Israel has killed a lot of people in Gaza, but South Africa does not make any distinction between terrorists and civilians, and cannot point to a single instance in which Israel purposely targeted a civilian.
It is true that as a result of its campaign against Hamas, innocent Palestinians have suffered collaterally, and that every civilian death is nothing short of tragic. But that doesn’t make the deaths unlawful and certainly not genocidal.
As experts have already noted, per the ICJ’s own jurisprudence on genocidal intent, "for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent" (Bosnia v. Serbia (2007)).
Genocidal intent would have to be "the only inference that could reasonably be drawn from the acts in question" (Croatia v. Serbia (2015)), and the standard of proof required for that inference is "fully conclusive."
To even claim that the only inference is genocide would require one to do exactly what South Africa actually did – just blindly pretend that Hamas is not there, still indiscriminately firing rockets at innocent Israeli civilians, while cruelly using their own people as dispensable human shields. But Hamas is there, holding hostages and committing war crimes daily, despite Israel’s repeated assertions that if they would only surrender the war would stop.
No matter what anyone thinks about Israel’s military response, no reasonable person could conclude that the only possible inference here is that Israel is intent on genocide.
South Africa feebly tries to get around the lack of intent by cobbling together an assortment of cherrypicked, out-of-context, and sometimes flat-out imaginary statements allegedly made by Israeli politicians and pundits that they claim are somehow dispositive despite all evidence to the contrary. This section continues to ignore the existence of Hamas, boldly asserting that quotes about destroying terrorists are actually about innocent civilians.
For example, Prime Minister Netanyahu’s referencing the biblical commandment to eradicate Amalek is cited as a prima facie example of genocidal intent. Except, of course, that they disregard the previous sentences, in which Netanyahu explicitly said he is referring to "destroying Hamas."
South Africa also offers a few instances of people using less than careful language to describe retaliation against a barbaric enemy that attacked them and their families -- some of them remarks that should clearly have never been made. But they fail to mention that even after those non-decision makers apologized and explained that they were only speaking metaphorically, Israeli leadership still criticized them, clarified Israel’s actual mission and position, distanced themselves from such opinions, and in some instances even suspended the officials for making those remarks.
FILE – A view of the exterior view of the International Criminal Court in The Hague, Netherlands, on March 31, 2021. (AP Photo/Peter Dejong, File)
Not once does the South African application even mention Israel’s official stance, repeated ad nauseum by the prime minister, the president, the Defense Minister, and the IDF spokesman -- that this "war is against Hamas – not the people of Gaza."
Again,under UN jurisprudence, incitement to genocide cannot be "a mere vague or indirect suggestion" and to pretend that Israeli officials are calling for a genocide by cribbing sentences, ignoring facts, and selectively including outlying (and widely condemned) comments by people without authority who do not have decision-making authority, that are clearly against official policy and bear no resemblance to what is actually factually happening on the ground, is nothing short of ludicrous.
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Just for comparison’s sake, the United States did not commit genocide when it destroyed ISIS, even though President Trump once suggested we should use a nuclear bomb against their strongholds.
FILE - Israeli Prime Minister Benjamin Netanyahu attends a press conference with Defense Minister Yoav Gallant and Cabinet Minister Benny Gantz in the Kirya military base in Tel Aviv, Israel, Saturday, Oct. 28, 2023. (Abir Sultan/Pool Photo via AP)
Nor did we commit genocide in Iraq, or in Afghanistan, even though General Mattis once reflected that ‘It’s quite fun to shoot them, you know… guys who slap women around for five years because they didn't wear a veil.’ America did not commit genocide in Vietnam just because the Air force Chief of Staff once said he thought American should "bomb them back into the Stone Ages."
Nor did the Allies commit genocide against the Germans when they bombed their cities in WWII – even though Winston Churchill once admitted that "if tonight the people of London were asked to cast their vote whether a convention should be entered into to stop the bombing of all cities, the overwhelming majority would cry ‘No, we will mete out to the Germans the measure, and more than the measure, that they have meted out to us."
Those statements did not turn those wars into genocide because even poorly made comments from people in power made in the heat of the moment do not change the fact that those were clearly not the actual positions of the relevant parties.
Hopefully the ICJ will see this cynical ploy for what it is -- another example of antisemitic victim blaming by aggressors who think it is deeply unfair for Jewish people to defend themselves, facts and laws and Jewish lives be damned.
That, in fact, is the only inference a reasonable person would make.
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Dr. Mark Goldfeder is a former law professor and co-author of the five volume treatise "Religious Organizations and the Law" (Westlaw).
