Fresh Air

The current case being brought by South Africa against Israel at the International Court of Justice (ICJ) on charges of genocide is a meritless, Kafkaesque travesty meant solely to indelibly associate Israel with the word “genocide”, regardless of the legal inanity of the case. Even if Israel were conducting as indiscriminate a military operation as South Africa alleges – and it is not – it would still not constitute genocide, a word that has a specific meaning under international law.

The case is an even more appalling farce given South Africa has defended or turned a blind eye to unambiguous and ongoing genocidal campaigns in both Sudan and Ukraine – committed by the Rapid Support Forces (RSF) and Russia, respectively – as well as the Chinese Communist Party’s arguable genocide against Uyghurs in Xinjiang.

South Africa also failed to arrest Sudan’s former genocidal dictator Omar al-Bashir and turn him over to the International Criminal Court when he visited the country in 2015.

Moreover, South Africa’s ruling African National Congress (ANC) has an extremely close political relationship with the terrorist group Hamas, including signing a Memorandum of Understanding with the organisation in 2018. A mere ten days after the October 7 pogrom, South Africa’s Foreign Minister phoned Hamas leader Ismail Haniyeh. In December, a Hamas delegation visited the country to mark the tenth anniversary of former South African President Nelson Mandela’s death. In November, South Africa’s Parliament passed a motion calling for Israel’s embassy to be closed and to break off diplomatic relations with Israel.

What makes South Africa’s ICJ case an especially egregious inversion of reality, however, is that while it also ignores Hamas’ other countless war crimes, there is prima facie evidence that the October 7 pogrom was itself an act of genocide or attempted genocide, and thus Israel’s defensive war in response to Hamas’ genocidal attack is outrageously being condemned as genocide. In fact, it is upholding Israel’s duty under the Genocide Convention to prevent genocide.

While no case will be brought against Hamas, it is useful to think through just how shamelessly South Africa is perverting reality and abusing international legal instruments and concepts and to consider whether a legal response is possible.

The Genocide Convention

The “Convention on the Prevention and Punishment of the Crime of Genocide” outlines both the crime of genocide and the acts that can be punished in relation to the crime.

Article II of the Convention states:

Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Special intent, or dolus specialis, while performing any of these actions “to destroy, in whole or in part, a national, ethnical, racial or religious group”, is the bedrock of the crime of genocide. Even completely indiscriminate military force during a war that results in extremely high civilian casualties has no relation to genocide without this “special intent”, though it is of course covered by other areas of International Humanitarian Law.

Article III of the Convention enumerates the punishable crimes, including:

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.

Hamas, October 7 and the crime of genocide

There is no need to prove Hamas’ special intent “to destroy, in whole or in part, a national, ethnical, racial or religious group.” Hamas’ Founding Charter states it explicitly, and it is constantly reiterated by leading Hamas figures that the organisation’s goal is to bring about the physical destruction of the Jews of Israel – which constitute all four categories mentioned in the convention – through the use of violence.

Hamas would likely be found guilty under sections (b) through (d) of Article III of the Convention, including for October 7 and its aftermath. However, to be charged under section (a) with the concrete crime of genocide, special intent is only part of the picture; there is also a substantiality requirement. The courts have noted that genocide requires “an intention to destroy a substantial number relative to the total population of the group.”

At first glance, this might seem to rule out a charge of genocide related to October 7, for as heinous and horrifying as the massacre was, it might be argued that given the total population of Jews in Israel, the number of dead would not meet the substantiality requirement.

That assumption, however, can be challenged by way of an important precedent; namely, the International Criminal Tribunal for the former Yugoslavia’s (ICTY) 2004 judgement against Bosnian Serb commander Radislav Krstic for the crime of genocide in Srebrenica in July 1995. The court ruled that Srebrenica was a genocide because the part of the population they were considering was the “Bosnian Muslims of Srebrenica”, not the Bosnian Muslim population as a whole, and thus the 7000-8000 males murdered, coupled with other factors, would fulfil the substantiality requirement.

The court further explained:

The area of the perpetrators’ activity and control, as well as the possible extent of their reach, should be considered… The intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him. While this factor alone will not indicate whether the targeted group is substantial, it can – in combination with other factors – inform the analysis.

Based on this precedent, a theoretical case for October 7 being a crime of genocide suddenly becomes much stronger. The number of those killed need not be measured against the entire Jewish population of Israel, but only those kibbutzim and towns of Israel that Hamas controlled in the so-called “Gaza envelope”. The substantiality requirement would thus arguably be fulfilled.

This is likely why both US Assistant Secretary of State for Near Eastern Affairs Barbara A. Leaf and the US Deputy Assistant Secretary of Defence for the Middle East Dana Stroul testified in November before the House Foreign Affairs Committee that Hamas was guilty of genocide.

In addition to those killed, sexual violence and rape such as occurred on October 7 are also considered “serious bodily and mental harm” under section (b) of Article II of the Convention, and thus part of the concrete crime of genocide arguably committed by Hamas that day.

A demonstration case against the “State of Palestine”?

In one of the most absurd events in United Nations history, the non-existent “State of Palestine”, which includes Gaza, was allowed to accede to the Rome Statute and accept the jurisdiction of the International Criminal Court (ICC) in 2015. This might potentially have a salutary effect, as international law expert David J. Scheffer says:

As a de facto governing authority in Palestine (namely, over Gaza) with control over its own militant forces… Hamas leaders and personnel can be held accountable for committing genocide, crimes against humanity, or war crimes on, for example, Israeli territory or in Gaza.

The most appropriate retaliation to South Africa’s ICJ farce might be to bring a case against the “State of Palestine” for genocide. While Israel is not a party to the Rome Statute, it has allies that are, one of whom should drag the “State of Palestine” before the ICC for the unequivocal and innumerable war crimes committed by Hamas in both Gaza and Israel and thus force this non-existent state’s representatives to defend Hamas from substantive charges of genocide related to the October 7 attack.