Late last week, the state of Israel appeared before the International Court of Justice in The Hague to face accusations that it is committing genocide in its war against Hamas in Gaza. The claim was brought by South Africa, which alleges that Israel is violating international law by perpetrating and failing to prevent genocidal acts “to destroy Palestinians in Gaza.”
South Africa has requested two-tiered relief: the imposition of emergency measures ordering Israel to immediately stop its Gaza offensive and a separate finding of genocide. The court is expected to rule on possible emergency measures later this month but will likely take longer to rule on the genocide claim. Although ICJ decisions are final, the court has no mechanism to enforce its rulings. Nonetheless, ignoring an ICJ ruling could have international ramifications.
The Genocide Convention was adopted in 1948. It was the first human rights treaty adopted by the U.N. General Assembly to reflect the international commitment to “never again” allow similar atrocities to those committed during World War II. According to the Convention, genocide is a crime committed with the intent to destroy a national, ethnic, racial or religious group, in whole or in part. Genocide does not include political or military groups.
There are two elements to the crime of genocide: The physical element, or the acts committed, and the mental element, known as intent. Genocidal intent is difficult to prove. At the very least, one must prove an intent on the part of the perpetrators to physically destroy a national, ethnic, racial or religious group. Neither cultural destruction nor intention to disperse a group meets the special intent requirement of genocide, although both may have other consequences.
The South African presentation was, by most accounts, professional and forceful — particularly in showing the tragic loss of civilian lives in Gaza — but strained in proving the claim of genocidal intent. The genocidal intent allegation was based largely on TikTok videos of dancing and singing soldiers promoting and celebrating destruction in Gaza and the assertion that inflammatory statements by Israeli cabinet ministers demonstrate an intent to kill civilians.
In response, Israel’s advocates argued that inflammatory statements by fringe members of the Israeli cabinet are contrary to established government policy and that soldier celebrations do not create government policy. More importantly, they made clear that the prosecution of the Hamas war is directed by Israel’s war cabinet and security cabinet, not the quoted ministers or the dancing soldiers. They also presented evidence of the defensive nature of the Gaza effort and cited IDF policy to attack only military targets while taking precautions to reduce collateral damage.
Israel has the better arguments both factually and legally. While the civilian deaths and destruction in Gaza are tragic, those losses are the unfortunate consequence of a defensive war rather than the objective of an offensive, genocidal effort. Israel did not initiate the Gaza war to destroy the Palestinian people. Israel responded to an Oct. 7 attack by Hamas to protect against a genocidal effort to destroy the state and people of Israel.
Finally, we can’t ignore the disturbing imbalance of the ICJ proceedings.
South Africa says it is there on behalf of the Palestinian people and to save lives. Israel appeared to defend itself. But where was Hamas? And why did South Africa gloss over the brutal Hamas attack on Israel in presenting its genocide claim? Could it be that South Africa was there on behalf of the Hamas terror group? If so, perhaps the South Africans’ time would be better spent seeking the release of the 132 hostages held by their client.
