Israel, Gaza, and South Africa's genocide complaint to the International Court of Justice
US National Security Adviser Jake Sullivan’s over-optimistic prediction in an article finalized before the October 7 Hamas attack on Israel has already become a symbol of over-optimism and hubris: “[A]lthough the Middle East remains beset with perennial challenges, the region is quieter than it has been for decades.”1
Now the Biden Administration is essentially giving unconditional backing to Israel’s war on the civilian population of Gaza that has Israel in the Hague answering serious charges of committing genocide that the nation of South Africa has brought before the International Court of Justice:
The case, brought by South Africa at the International Court of Justice (ICJ) in the Hague, accuses Israel of violating the 1948 genocide convention, enacted in the wake of the mass murder of Jews in the Holocaust, which mandates all countries to ensure such crimes are never repeated.
"Israel has a genocidal intent against the Palestinians in Gaza," Tembeka Ngcukaitobi, advocate of the High Court of South Africa, told the court in the Hague. "The intent to destroy Gaza has been nurtured at the highest level of state."
South Africa asked the court for a preliminary order to demand Israel stop fighting now, while the court hears the full merits of the case in coming months.
In a strongly worded response, Israeli Prime Minister Benjamin Netanyahu said "the hypocrisy of South Africa screams to the heavens."2 [my emphasis]
However the ICJ rules, this will have serious implications for how the world understands Israel’s use of the Holocaust as a justification for its existence and actions and as a founding myth for the nation of Israel itself.
This is a 3 1/2 hour video of South Africa presenting its case3:
Deutsche Welle English also provides a three-hour video of Israel presenting its defense.4 Israel has to take the case seriously. But it’s also important to remember that the US government is the most immediately critical audience for Israel and for Netanyahu’s government.
As Haaretz notes:
The legal proceedings could go on for several years, but South Africa is asking the court to declare that, in order to halt or prevent genocide, Israel must cease fighting in Gaza immediately.
Israel is seeking to block a court order for a cease-fire, and to convince the court that it is not carrying out a genocide – a determination that could have enormous moral, diplomatic and economic consequences. Prime Minister Benjamin Netanyahu has called on former chief justice Aharon Barak, who was demonized as an 'enemy of the people' by [Netanyahu’s] camp during the long months of the current government's judicial coup, to be Israel's representative on the judges' bench.5 [my emphasis]
The full horror of the Netanyahu regime currently on view
One thing this war has done is to call much attention in the world outside Israel to the outrageous incompetence and anti-democracy authoritarianism of Bibi Netanyahu’s government. As Yossi Verter reports, there is tremendous irony as well as a display of the previous reckless political conduct of Netanyahu in the fact that Aheron Barak is in charge of Israel’s defense at the IJC:
For months on end they demonstrated in front of his home; cursed him, humiliated him, made despicable false accusations against him. Netanyahu's gangs – in the government, the Knesset, the media and the street – declared a holy war, a Jewish jihad, against former Supreme Court President Aharon Barak. The quantities of sleaze and lies that were spread about him in the Bibi-ist TV studios could have clogged the sewage system of California.
Justice Minister Yariv Levin reviled him in every speech, disparaged him and incited against him; really made his life miserable. The "Minister in the Justice Ministry" – woe to that disgrace – Dudi Amsalem, demanded that he be sent to prison for the rest of his life. As did all the other tempestuous good-for-nothings in the Likud faction, who didn't spare the insults and curses.
And Netanyahu remained silent. In his contemptible silence, he signalled to them to keep up the good work. For his sake and for the sake of the agenda of the judicial coup. …
At a time of legal troubles in the international arena, Israel has only one person to rely on. Prof. Aharon Barak is the greatest living Israeli legal scholar. In the most prestigious schools of law in the United States and Great Britain, his name is mentioned with reverence.6 [my emphasis]
I’ve written here before about why I’ve tried to avoid loose usage of the term “genocide” in both the Russia-Ukraine War and now in Israel’s war on Gaza.7
South Africa’s current genocide case against Israel and the Netanyahu government
What I wrote then was that the general usage of the term really seems to be getting to the point where every act of war that harms civilians, or that displaces populations, and maybe even all acts of war by the Other Side (whoever that happens to be in context) are also called acts of genocide. The Genocide Convention was not meant to declare every war crime and every breach of humanitarian law to be “genocide.”
Hyemin Han includes a link to the 84-page complaint filed by South Africa to the ICJ which summarizes the arguments in it that Israel is violating the Genocide Convention this way:
In its application, South Africa alleges that Israel has killed a large number of Palestinians; inflicted “conditions of life intended to bring about [Palestinians’] destruction as a group”; caused mass displacement and destruction of homes; deprived Palestinians of access to adequate food, water, shelter, medical care, and sanitation; and imposed measures that obstruct Palestinians from being able to give birth. The application places these allegations within the context of Israel’s telecommunications blackouts, restriction of fact-finding bodies, and killing of journalists in Gaza since the conflict began.
The application also collates widespread international agreement about Israel’s conduct in Gaza, including numerous references to Secretary General António Guterres’s Dec. 6 Article 99 letter to the United Nations Security Council calling for a humanitarian ceasefire.8 [my emphasis]
The Israeli-American historian Omer Bartov, a leading Holocaust scholar, discusses the South African filing in this report9:
Bartov here focuses on the key question of intent by Israeli leaders.
Alon Pinkas makes a point to attack South Africa's ICJ filing, calling it false, frivolous, and hypocritical. (Wouldn't South Africa have to be carrying out an operation on the scale of Israel's in Gaza for the filing to be "hypocritical"?) But he makes this point about the loose-lips statements by Israeli officials that provide evidence for arguing genocidal intent:
[The filing] was the direct result of an Israeli political trait: reckless and incendiary verbosity. A collection of misfits masquerading as the government casually spewed out moronic one-liners: nuke Gaza, burn Gaza, flatten Gaza, erase Gaza, cleanse Gaza, eliminate Gaza, displace Gazans – all of which found their way into the South African application that the world court heard on Thursday.
Most these idiocies could have been muzzled had Prime Minister Benjamin Netanyahu demanded that they stop. Instead, he condoned them and even contributed some biblical gems of his own about remembering Amalek.
The application – an indictment of sorts – could have been avoided or at least mitigated had Israel come forth with plans and ideas in areas such as humanitarian aid and safeguarding noncombatant Gazans. Instead, incendiary remarks reigned, with ministers expertly explaining that there are no "uninvolved" or "innocent" Gazans.10 [my emphasis]
Netanyahu’s statement about “Amalek” in itself sounded very much like demanding the killing of every single person on the Other Side, in this case Gazan Palestinians.11
Eric Frey is a very capable political political reporter for the Austrian Der Standard. I was surprised to see him opening a commentary on the case against Israel by seemingly recycling stock talking points of the Netanyahu government. “The aggressive quotes of Israeli officials to prove such a motive were directed against Hamas, not the Palestinians,” he writes.12 Which might tempt one to ask: so Netanyahu thinks “Amalek” is another name for “active Hamas fighters”?
His opening paragraph seems to brush lightly over the substantial evidence behind South Africa’s formal complaint. But he also disusses a concern similar to the one I’ve expressed about the inflationary use of the term “genocide.”
The proceeding before the ICJ is an example of how the concept of genocide, which was enshrined in 1948 as the worst international crime under the impact of the Holocaust, is increasingly degenerating into a run-of-the-mill accusation. Wherever violence is employed against a particular ethnic group, the accusation of genocide is voiced – and the word is instrumentalized for political purposes.
In the past, the ICJ has also contributed to this, for example by assessing the Srebrenica massacre of 1995 with more than 8,000 deaths as genocide and thus defining the offence very broadly – perhaps too broadly. [my emphasis]
But this is how law works. The law is written, and individual cases have to be adjudicated. The framers of the Genocide Convention may not have intended it to cover situations like Srebrenica with a number of deaths that is orders of magnitude less than what occurred in the Holocaust or the Armenian Genocide. But that’s where the world officially is on what constitutes genocide. This issue doesn’t involve just some evolution in how the word is generally used. It’s based on actual law.
The Srebrenica case was the first in which an international judicial body applied the Genocide Convention, which formally went into effect in 1951:
The genocide convention was first invoked before an international tribunal in 1993, when the government of Bosnia and Herzegovina argued before the International Court of Justice that the Federal Republic of Yugoslavia was in breach of its obligations under the convention.13
The legal definition of genocide also does not mean that the term itself can’t evolve. The originator of the term, Raphael Lemkin, favored an even broader definition than the one finally incorporated into the Genocide Convention.
Eric Frey suggests that cases like the one brought to the ICJ by South Africa should be treated as “crimes against humanity” rather than genocide. But I’m not sure that solves the problems of inflationary use of terms. The same can of course happen with “crimes against humanity.”
Israel’s defenders in this case will no doubt argue that an inflationary definition of genocide is what is being applied here.
And it will surely have a broader effect on how the world understands genocide and the legacy of the Holocaust.
One of the great ironies in this case is that Germany is taking Israel’s side to defend it against the genocide charges.14 I doubt this will be remembered in the longer run as a sensible decision on the part of Chancellor Olaf Scholz’ government.
Genocide and war
Martin Shaw takes the Gaza situation to recall how intimately genocide is connected to war. Hitler was obsessed with destroying Jews and began the process with measures like the Nuremberg Race Laws, the mass persecution of Jews in the immediate aftermath of annexing Austria, and the Kristallnacht pogrom in 1938. (The military invasion of Austria didn’t involve actual military conflict, because the “Austro-fascist” government under Chancellor Kurt Schuschnigg chose not to fight. But the systematic mass killing of Jews began only after the invasion of the Soviet Union in 1941.
Shaw writes:
Genocide is mostly not a standalone, but a hybrid phenomenon, to be approached largely in a war-and-genocide perspective. The analytical roadblock was the absence of a framework for understanding genocidal war that could grasp how Israel could perpetrate a genocidal attack on Gazan society through its military campaign against Hamas. The paradox of “targeted” strikes resulting in massive destruction could be partly explained by Israel’s Dahiyah doctrine of using “disproportionate” violence, developed in its 2006 assault on Lebanon and manifested in previous bombardments of Gaza. However, in the new war it deliberately expanded the legitimate parameters, so that it became acceptable when aiming to kill individual Hamas leaders or groups of fighters to simultaneously kill dozens, scores or even hundreds of civilians – and to destroy the neighbourhoods and infrastructure of thousands. No wonder that even Joe Biden came to see this as “indiscriminate bombing.”15 [my emphasis]
The “even Joe Biden” phrase there is a reflection of how uncritically Biden has supported Bibi Netanyahu’s war on Gaza civilians. In other words, if even Joe Biden could see it, it must be painfully obvious.
Shaw goes into an important set of legal and conceptual nuances in the genocide concept:
As Dirk Moses had long highlighted, Raphael Lemkin’s concept combined the notions of the “extermination” (mass murder) and “crippling” (non-murderous weakening) of subjugated peoples, creating a tension which, he recently argued, rendered the genocide concept intrinsically unstable. However, it can be argued that Gaza shows us, instead, the strengths of this combination. Deliberate mass killing has once again been one element of a larger destructive thrust, the overall aim of which seems to be to cripple rather than exterminate, providing scope for a sociological concept of genocide that is broader than the prevailing legal definition.
He puts that thought into the specific context of Israel’s response after the October 7 terrorist attack by Hamas with its mass killing and hostage-taking:
[E]gged on by a popular demand for revenge stoked by much of the media, the damaged regime, supported by most of the political class, appeared to be converging on a more radical and permanent solution, the expulsion of all or part of the Gazan population.
It was therefore essential to recognize that in genocidal war, policies radicalize. Israel’s initial genocidal thrust contained the potential for a greater genocide, which might turn the right’s most ambitious ideas into reality. However, the dynamic and contingent character of genocidal war could also work against this. The dislocation of Gazan society depended not only on Israel’s goals and Hamas’ response, but also on the tolerance of the USA and the wider West for its violence, of Egypt for its ambitions to expel Gazans, and of the Israeli public for the sacrifice of its hostages. Israel was operating under global political, legal, and media surveillance, obliged to placate its patrons and manage public opinion, internationally as well as at home. At the end of 2023, it was far from certain that the war would actually produce the final solution of Israel’s Palestinian problem about which many fantasized, even in the sense of general expulsion, even from Gaza.
Despite Moses’ proposal to replace “genocide,” the new Israel-Hamas war confirmed the concept’s discursive inescapability.
As annoying as academic jargon may sometimes be, Shaw is carefully explaining there how relevant the genocide framework is to the Israel-Gaza situation, both in legal and conceptual terms.
Sullivan, Jake (2023): The Sources of American Power. Foreign Affairs Nov-Dec 2023, 23.
Salem, Mohammed, et al. (2024): Netanyahu condemns ICJ genocide case; Gazans return to wasteland in north. Reuters 01/11/2024. <https://www.reuters.com/world/middle-east/israel-face-gaza-genocide-charges-world-court-2024-01-11/> (Accessed: 12-01-2024).
South Africa presents its case against Israel at the ICJ. SABC News YouTube channel 11.01.2024. <https://www.youtube.com/live/4f_yoal4gx8?si=HDOJJDDJDtqWyOFz> (Accessed: 12-01-2024).
Israel defends itself against genocide case brought to ICJ by South Africa. DW News YouTube channel 12.01.2024. <https://www.youtube.com/live/H6CEKVSjg7o?si=ur-c3nxs8OjshF0W> (Accessed: 12-01-2024).
Israel Charged With Genocide in Gaza: Everything You Need to Know About the Historic ICJ Hearings. Haaretz 01/10/2024. <https://www.haaretz.com/israel-news/2024-01-10/ty-article/israel-gaza-and-the-international-court-of-justice-everything-you-need-to-know/0000018c-f2e8-d2f9-a3ef-f6ffb5720000> (Accessed: 2024-12-01).
Verter, Yossi (2024): Netanyahu's Supporters Cursed and Lied About Him. Now They Need Him to Save Israel. Haaretz 01/08/2024. <https://www.haaretz.com/israel-news/2024-01-08/ty-article/.premium/for-months-bibi-ists-cursed-and-lied-about-barak-now-they-need-him-to-save-israel/0000018c-e59e-d249-a1ce-efdff7d40000> (Accessed: 12-01-2024).
South Africa Institutes ICJ Proceedings Against Israel for Genocide Convention Violations. Lawfare 01/03/2024. <https://www.lawfaremedia.org/article/south-africa-institutes-icj-proceedings-against-israel-for-genocide-convention-violations> (Accessed: 2024-12-01).
'We will know if this is an operational ethnic cleansing depending on what happens next'. DW News YouTube channel 01/12/2024. (Accessed: 2024-12-01).
Pinkas, Alon (2024): At Int'l Court of Justice Hearing, Israel Presents Robust Defense Despite Half-wit Politicians. Haaretz 01/12/2024. <https://www.haaretz.com/israel-news/2024-01-12/ty-article/.premium/at-intl-court-of-justice-israel-presents-robust-defense-despite-half-wit-politicians/0000018c-fdaa-d517-af9d-fdbe8aee0000> (Accessed: 2024-12-01).
Lanard, Hoah (2023): The Dangerous History Behind Netanyahu’s Amalek Rhetoric. Mother Jones 11/03/2023. <https://www.motherjones.com/politics/2023/11/benjamin-netanyahu-amalek-israel-palestine-gaza-saul-samuel-old-testament/> (Accessed: 2024-12-01).
Frey, Eric (2024): Der Vorwurf des Genozids gegen Israel geht ins Leere. Der Standard 11.01.2024. <https://www.derstandard.at/story/3000000202790/der-vorwurf-des-genozids-gegen-israel-geht-ins-leere> (Accessed: 2024-12-01). My translation from German.
Andreopoulos, George J. (2024): Genocide. Britannica Online 01/11/2024. <https://www.britannica.com/topic/genocide> (Accessed: 2024-12-01).
AFP et. at. (2024): Germany says will intervene at The Hague on Israel’s behalf, blasts genocide charge. Times of Israel 01/12/2024. <https://www.timesofisrael.com/germany-says-will-intervene-at-the-hague-on-israels-behalf-blasts-genocide-charge/> (Accessed: 2024-13-01).
Shaw, Martin (2024): Inescapably Genocidal. Journal of Genocide Research Online. <DOI: 10.1080/14623528.2023.2300555> (Accessed: 2024-12-01).