Baseless South African Genocide Case against Israel at International Court of Justice
By Dr. Mark Meirowitz, Professor, State University of NY Maritime College
Dr. Mark Meirowitz
South Africa brought a legal proceeding against Israel in the International Court of Justice (ICJ) claiming that Israel committed “genocide” in Gaza (under the Genocide Convention to which both South Africa and Israel are parties) and asking that the ICJ Court issue provisional measures ordering Israel to cease its military operations in Gaza. A New York Times opinion writer says that “[t]he case is meticulously footnoted, and many experts say the legal argument is unusually strong” (Megan Stack, “The Case Against Israel is Strong,” NY Times, 1/14/24). So what are we to make of this case?
The purpose of the ICJ hearing was for the Court to determine whether the ICJ Court should issue provisional measures ordering Israel to cease military operations in Gaza. The actual determination of whether “genocide” has taken place would be part of a later phase of the case, only if the case proceeded.
To have the Court issue such provisional measures, South Africa would have to at least show that it would be able to make out a credible case that Israel committed “genocide” in Gaza. However, South Africa’s case fails completely from both procedural and substantive legal grounds. South Africa failed to follow the proper procedures to bring its proceeding in the ICJ Court under the Genocide Convention. Further, South Africa failed to show that it could even make out a case against Israel that Israel had intent to commit “genocide” in Gaza. It is not surprising that Secretary of State Blinken called South Africa’s case “meritless” and that Germany has taken the position that the accusation “lacks any basis” and will “intervene” in the case in support of Israel.
Therefore, the only conclusion must be that South Africa never thought its case against Israel accusing Israel of “genocide” would succeed on the merits – all South Africa wanted was to obtain a Court Order from the ICJ for provisional measures that Israel must be ordered by the ICJ Court to cease its military operations in Gaza. That was clearly South Africa’s only purpose here. What an outrage!
According to Andre Thomashausen, Professor Emeritus of International and Comparative Law at the University of South Africa (in a South African radio interview, “702 Breakfast With Bongani Bingwa, “SA has Failed to Prove Genocidal Intent by Israel in Gaza says International Law Expert”), South Africa made crucial errors in connection with its ICJ case. He argues that in order to bring a proceeding at the ICJ Court under the Genocide Convention, there must be a “dispute” and an exchange between the parties prior to commencing the suit. Instead, South Africa informed Israel on December 26, 2023 that it intended to bring the ICJ proceeding, Israel reacted quickly by trying to deliver a reply note to South Africa on December 27th (offering to have the foreign affairs representatives of both countries meet to discuss the matter), South Africa refused to accept Israel’s reply (offices closed for a national holiday), and then, on December 29th, South Africa filed its application with the ICJ Court. Indeed, at the ICJ hearing, Israel’s counsel, Professor Malcolm Shaw, called this a “unispute” “a one-sided clapping of hands” which fails procedurally since there must be a real “dispute” that also involves an exchange between the parties. In addition, Prof. Thomashausen argued that South Africa failed to prove that the State of Israel gave official instructions for its troops to commit Genocide and overstated its claim by showing a video at the ICJ hearing of soldiers appearing to combatively sing about the war and treatment of civilians (I note that the audio is unclear and the accuracy of the English subtitles is highly questionable). In Prof. Thomashausen’s view, what soldiers say in an operation is irrelevant and can’t be used to infer intention of the State, and that what counts are only the official pronouncements of the State.
He noted that the IDF officially made clear in its directives that Israel would attack only military targets and would take action to reduce collateral damage and injury to civilians. He also argued that South Africa ignored precedents of the ICJ Court that to prove intent to commit genocide, it must be proved that the only possible inference that can be drawn from the way the State has been acting - is that the State intended to commit genocide - and that is clearly not the case regarding Israel’s actions in Gaza. Professor Thomashausen believes that South Africa’s actions related to the case “won’t go down well with the Court”.
Israel’s lawyers showed persuasively at the ICJ hearing that Israel acted to mitigate civilian deaths and certainly has not taken actions “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” (the definition of “Genocide” under the Genocide Convention. There is no way that South Africa can prove with fully conclusive evidence that Israel has committed genocide in Gaza - since the intent element is clearly not present.
In the ICJ’s judgment in Bosnia v. Serbia (2007), the ICJ held that, in connection with inferring 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”.
That is to say that for the ICJ Court to infer genocidal intent from a pattern of conduct “it must be the only inference that could reasonably be drawn from the acts in question” (Croatia v. Serbia (2015)). (See also Amichai Cohen and Yuval Shany, “Selective Use of Fact and the Gaza Genocide Debate, 1/2/24, Justsecurity.org).
In the case of Israel which dropped leaflets and made telephone calls warning civilians, delivered incubators to hospitals, delivered humanitarian aid, and did so much more to mitigate civilian casualties, there is no credible basis for a claim of genocide.
South Africa’s application to the ICJ has many footnotes - citing accusations against Israel for committing genocide in Gaza hurled by charming human rights champions such as the leaders of Iran, Venezuela, Cuba and the Palestinian Authority - as well as sources from the United Nations and UN agencies such as UNRWA, which has been accused of facilitating Hamas’ activities in Gaza.
Accordingly, what South Africa has presented here is a veritable house of cards - an empty and ludicrous shell. Incredibly (as pointed out by a lawyer representing Israel at the ICJ hearing), the South African presentation at the ICJ Court mentioned Hamas only once and only in passing.
The New York Times is wrong again when it comes to Israel - the South African case is weak and not persuasive at all.
What a calumny and outrage for South Africa to use the Genocide Convention against Israel, the one Jewish State born out of the Nazi genocide (the real genocide!). The Genocide Convention itself was created to prevent a recurrence of the Holocaust.
Israel appeared at the Court and presented a powerhouse defense - against this scurrilous accusation. In a world of Hamas brutality, Israel once again stands tall as a nation that respects the rule of law, but at the same time will defend itself forcefully against false accusations. Israel also has the absolute right to defend itself against the inhuman brutality of Hamas.
Said the Simon Wiesenthal Center, “[i]t is not Israel that should be on the docket, but Hamas leaders…” and that “[i]t is not surprising that Hamas supporter, South Africa has turned to the International Court of Justice to demonize and delegitimize Israel.
This court has a panel of judges from countries like Russia, China, Lebanon, and Somalia that themselves should be on the docket for their violation of fundamental human rights and in some cases are guilty of crimes against humanity”.
If the ICJ Court is to have any legitimacy at all, the Court MUST dismiss the case outright
