South Africa claims that Israel is committing genocide of the Palestinian people. South Africa and Israel presented the Court with diametrically opposed narratives. South Africa argued that Israel is a racist apartheid entity that is trying to eliminate the Palestinians (and has been doing so ever since 1948), and the only way to deal with this is to order Israel to bring an immediate and complete end to the conflict in Gaza.
Israel presented a completely opposite reading of the situation. It is Hamas, not Israel, that has a genocidal intention. Israel is a legitimate state based on the rule of law, fighting a justified war against Hamas, not the Palestinian people. While the number of deaths and extent of destruction in Gaza is high, this is an unhappy but inevitable consequence of the war that Hamas started, and Israel never wanted.
On 26th January 2024, the International Court of Justice (ICJ) decided that it is “plausible” that Israel is committing genocide of the Palestinian people. Although it acknowledged that on 7th October, “Hamas and other armed groups present in the Gaza Strip carried out an attack in Israel, killing more than 1,200 persons, injuring thousands and abducting some 240 people, many of whom continue to be held hostage”, and at the end of its judgment demanded the release of the hostages, the Court at no point made any reference to Hamas’ ongoing use of force against Israel, and its genocidal campaign to eliminate the Jewish people.
The Israeli-nominated judge ad hoc Aharon Barak issued a powerful Separate Opinion, which was highly critical of the Court’s approach. He basically accused the Court of “imputing the crime of Cain to Abel”.
“Constructive ambiguity”
The Court’s 25-page judgment is prime example of “constructive ambiguity” – a technique (usually ascribed to Henry Kissinger) employed to disguise an inability to resolve a contentious issue on which the parties remain far apart and to do so in a manner that enables each to claim obtaining some concession on it.
The Court expressed strong criticism of Israel’s use of force in Gaza, and of the statements made by a number of Israeli leaders that appeared to promote large-scale destruction and killing of Palestinians in Gaza in response to the attacks of 7th October. But it said it cannot (and should not) at this stage decide that Israel is committing genocide.
Accordingly, the Court did not grant the extreme measure of a cease-fire that South Africa had demanded. Nevertheless, it ordered Israel to “make sure it does not commit genocide”. Israel, of course, considers that it has no intention to destroy the Palestinian people, and thus is not committing genocide.
Dodging the difficult question of whether genocide is being committed, the Court called on Israel to “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip”. This is basically an obligation Israel already has under international humanitarian law.
It is true that the ICJ expressed its “deep concern” about the situation of the hostages, and “calls for their immediate and unconditional release”. But while these are nice words, they are totally ineffective as Hamas is not a party to these proceedings.
Judge Aharon Barak
In his powerful dissenting opinion, Israeli Judge ad hoc Aharon Barak stated that this is, in effect, “to impute the crime of Cain to Abel”. This is a reference to Genesis 4, where Cain murders his brother Abel in jealousy.
Barak was one of only two of the seventeen judges who opposed the majority’s decision. (The other was Ugandan judge Julia Sebutinde, who opined that South Africa’s claims are groundless, and the case should be dismissed).
It is important to read Judge Barak’s Separate Opinion, and to understand why he so opposed the majority approach.
Barak emphasized that the Genocide Convention was established on the ashes of the Holocaust. It created a new international crime – the “crime of crimes”, the most horrendous crime in existence. The Jewish people know better than any other people what genocide is, and the State of Israel was established to ensure that genocide never happens again.
Genocide is the killing members of a group with the intention of destroying that group. At the heart of the concept tent to destroy (eliminate) the group as such. Absent such intention there may be widespread destruction constituting a violation of international humanitarian law or criminal law, but there can be no genocide.
Barak himself experienced the full force of Nazi attempt at genocide. He was born in Kaunas, Lithuania, and miraculously survived the Nazi onslaught. Only 5% of the Jews of Lithuania survived.
Evidence of genocide?
Barak emphasized that the Court’s decision that it is “plausible” that Israel intends to destroy not just Hamas, but the Palestinians as such, is most problematic. The Court based this conclusion on the combination of massive number of casualties and extent of destruction, the fact that Israel was aware that its campaign would cause a humanitarian crisis, and a number of select statements by Israeli leaders shortly after 7th October.
But as judge Barak notes in his separate opinion, that distorts reality. It takes the statements of Israeli leaders out of context, places huge reliance on dubious information provided by Hamas, and flies in the face of all the evidence provided by Israel that Israel is trying in every possible way to minimize civilian casualties. It ignores the fact that this is highly complex and difficult urban war, in which Hamas has a deliberate strategy of embedding its combattants in civilian places like schools, mosques and hospitals.
Inexplicably, the Court virtually ignored that huge amount of evidence that israel had provided to the Court of its efforsts to minimize civilian casualties, and of Hamas’ strategy of maximizing civilian casualties.
By stating that it is “plausible” that Israel is committing genocide, the Court is allowing international law to be politicized. South Africa clearly used the Genocide Convention to advance the Palestinians’ political cause, and to support the campaign of Hamas.
It is no secret that the ANC has close ties with Hamas and the Palestinian Authority. Evidence has even emerged that Iran was involved and maybe even financed this case in The Hague.
The Court also relied heavily on evidence provided by UNRWA, the Palestinian refugee organization. However, UNRWA is far from neutral in this matter. In recent days, a lot of evidence is emerging that UNRWA is heavily infriltrated by Hamas. According to the Wall Street Journal, 10% of UNRWA’s 12,000 employees are affiliated with Hamas.
Perhaps more importantly, South Africa’s selective and politicized weaponization of the Genocide Convention against Israel is diverting the attention of the world from the fact the genocidal campaign launched by Iran, and implemented through its proxies including Hamas (Gaza and West Bank) and Hezbollah (in Lebanon), to eliminate the Jewish people in Palestine.
There is no doubt Hamas is a proxy of Iran, and that it shares Iran’s intent to eliminate the Jewish people in Palestine. As its 1988 Charter shows, it is an Islamist movement committed to the use of violence in order to “obliterate Israel” and “raise the banner of Allah over every inch of Palestine”.
For Hamas, Palestinian Islamic Jihad and other similar Islamist groups, the mere existence of the State of Israel is seen as an obstacle to the reign and rule of Allah.
Although Hamas’ immediate goal is the rule of Islam and Sharia law in all of Palestine, the movement is a global one. For example, Article 2 of the Hamas Covenant reads:
“The Islamic Resistance Movement is one of the wings of Moslem Brotherhood in Palestine. Moslem Brotherhood Movement is a universal organization which constitutes the largest Islamic movement in modern times. It is characterised by its deep understanding, accurate comprehension and its complete embrace of all Islamic concepts of all aspects of life, culture, creed, politics, economics, education, society, justice and judgement, the spreading of Islam, education, art, information, science of the occult and conversion to Islam.”
Consequences of the decision
The “constructive ambiguity” approach reflected in this decision (deliberately?) ignores the context of the case, and avoids making a clear decision based on the merits of the case. Ad hoc Judge Barak shows that the evidence presented to the Court simply did not provide a basis for concluding that it is plausible that Israel is committing genocide. The Court should have recognized this and dismissed South Africa’s claims.
By giving credibility to South Africa’s politically-driven claims, the Court is allowing law to be politicized.
All of this undermines the authority of the Court, and the integrity of the legal system. And it undermines the rights of states to defend themselves against terror. As Judge Barak concludes:
“It is concerning that applying the Genocide Convention in these circumstances would undermine the integrity of the Convention and dilute the concept of genocide. The Genocide Convention seeks to prevent and punish the physical destruction of a group as such. It is not meant to ban armed conflict altogether. The Court’s approach opens the door for States to misuse the Genocide Convention in order to curtail the right of self-defence, in particular in the context of attacks committed by terrorist groups.”
