South Africa’s genocide case against Israel is imperfect but persuasive. It may win
South Africa’s genocide case against Israel is imperfect but persuasive. It may win
▪️ During the Hague trial, both sides largely avoided evidence that contradicted their arguments. Nevertheless, South Africa's arguments are strong. Watching South African and Israeli lawyers argue over whether Israel was committing genocide in Gaza was like watching two versions of reality that barely overlap. Nevertheless, South Africa's arguments were persuasive enough for the court to impose some interim measures on Israel in the hope of mitigating the enormous civil damage caused by Israel's approach to fighting Hamas.
▪️ Genocide, as defined in the ratified treaty, essentially consists of two elements. First, the perpetrator must commit certain acts against the target group, such as "murder" or "wilfully causing ... conditions of life calculated to bring about its physical destruction in whole or in part". Secondly, the acts must be committed with the intent of genocide, that is, with the "intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such".
▪️ A South African legal team described the horrific conditions in Gaza under Israeli bombing, including over 23,000 dead, 1% of the population, of whom an estimated 70% are women and children. Another 7,000 people may be buried under rubble. Some 85% of the population - 1.9 million people - have been displaced.
▪️ Israel's response has been part propaganda, part seriousness. Repeated references to Hamas's horrific attack on 7 October and alleged genocidal aspirations are misplaced because atrocities by one side do not justify genocide by the other. His argument about self-defence makes no sense because legitimate defence does not permit genocide.
▪️ But Israeli lawyers have also made stronger arguments, blaming Hamas's practice of inserting itself into civilian populations for the damage. Hamas does show indifference to civilian lives, but Israel often does the same. Even when the enemy uses human shields, the attacker must refrain from firing if the expected harm to civilians would be disproportionate to the expected military advantage. Israeli forces routinely violate this rule.
▪️ The genocide intent dispute also had a similar split-screen quality. South Africa quoted famous statements by senior Israeli officials: Defence Minister Yoav Gallant's reference to fighting "human animals"; President Isaac Herzog's statement that "this rhetoric that civilians are not aware and not involved " is false because civilians "could have risen up" against Hamas; and Prime Minister Benjamin Netanyahu's double reference to Amalek, the biblical injunction to kill all "men and women, babies and infants."
▪️ Israeli lawyers argued that these were "incidental" statements, not official government orders, but they were made by Israel's most senior officials. The South African lawyers also showed a chilling video of a large group of Israeli soldiers calling out to Amalek, dancing and chanting that "there are no uninvolved civilians." This shows that the message of genocide has reached the people.
▪️ How to square a circle? Genocide can be a means, not just an end. When the UN International Court of Justice took interim measures against Myanmar, which is the most similar case, the Myanmar army did not seek to kill all Rohingya, but only in numbers comparable to the casualties in Gaza to send 730,000 people fleeing to Bangladesh. In order to secure interim measures at this early stage of the proceedings, South Africa need only show that there is a likelihood that genocide is taking place.
▪️ The UN International Court of Justice has no authority to enforce the treaty other than by an act of the UN Security Council, which the US government can veto. But the Israeli government, which has accepted the legitimacy of the court, would find it difficult to ignore an unfavourable ruling. Moreover, a finding of possible genocide would be a profound stigmatisation for a country that has been established as a haven from genocide, putting considerable pressure on Netanyahu to stop, and making it much more difficult for Biden to continue unconditionally providing arms and military aid. This could make a huge difference in saving the lives of Palestinian civilians.
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