Updated to 5 February 2024
South Africa launched proceedings against Israel at the International Court of Justice (ICJ). South Africa has alleged that Israel is committing genocide in Gaza. Preliminary hearings occurred on 11 and 12 January. The ICJ found, ambiguously, that it is ‘plausible’ that Israel could be in breach of the Genocide Convention. Although the ICJ was ambiguous, it appears to be most concerned with the lack of prosecution of the handful of people in Israel that have appeared to have called for genocide, as opposed to the South African allegations that actual genocide is taking place.
We at the ZFA strongly believe that South Africa’s allegations are baseless, and that South Africa is weakening the international rules-based order for cheap political purposes in taking this action.
As we said in this statement, “There is no genocide or attempted genocide occurring in Gaza. Anyone who says otherwise is either lying or ignorant. The act of genocide is one of the most serious crimes against humanity. Using this allegation when no genocide is occurring, solely in order to achieve a diplomatic victory against Israel, has the effect of weakening the Genocide Convention.”
This brief is primarily designed to highlight the key weaknesses of the South African case, and why we believe Australia should submit a third-party intervention to the ICJ, calling on it to dismiss the South African case.
But first, check out this half-hour video of Australian-born Tal Becker opening Israel’s defence at the ICJ.
What is the ICJ?
The ‘world court’ is a UN body, designed to resolve disputes between states. This is different from the International Criminal Court (ICC), which tries individuals responsible for war crimes if their home countries refuse to do so.
The South African case asked for a preliminary hearing. When it made the preliminary findings on 26 January, it did not determine whether South Africa’s allegations were true or false, but only whether the court believed it needed to demand certain actions to prevent the possibility that genocide was occurring. For instance, many commentators thought that the ICJ would call for an immediate ceasefire. We write more about the preliminary decision below (click here to skip straight to it).
The actual ICJ case will take many months or even years to come to a conclusion.
Introduction
Australia is a respected middle power that has long championed upholding the international rules-based order.
In September 2022, the Albanese Government made a formal intervention in the International Court of Justice’s (ICJ) Ukraine vs Russia case. In justifying its intervention, the Government said, “Russia’s attempts to use false allegations of genocide as a pretext to justify its egregious violations of international law in Ukraine undermines the rules-based international order.”
In the same way, South Africa’s attempts to use false allegations of genocide for domestic political purposes and in order to achieve a diplomatic victory against Israel likewise undermines the rules-based international order.
Genocide is arguably the very worst of the crimes against humanity. Spurious allegations of genocide—especially when made by countries—weaken the Genocide Convention. This was a key reason that Australia intervened in the Ukraine vs Russia case.
South Africa’s allegation of genocide against Israel is spurious. Its arguments are weak, and involve cherry-picked statements and facts, with no consideration at all given to the many Israeli statements and facts that would lead a reasonable person to a different conclusion.
Given our interest in upholding the principle of an international rules-based order, the ZFA believes that Australia should make a third-party intervention to the ICJ, calling on it to reject the South African allegations.
Australia’s position
On 15 January, Australian Prime Minister Anthony Albanese would not be drawn on the merits of the South African allegations, and said that Australia would not make a third-party intervention into the South Africa vs Israel ICJ case. However, on 16 January, Foreign Minister Penny Wong told reporters, “Our support for the ICJ and respect for its independence does not mean we accept the premise of South Africa’s case… I would note, Australia is not currently a party to the case, and that at this stage the ICJ has not invited international (submissions).”
This brief is designed to be a useful resource to those attempting to understand the merits or otherwise of the South African allegations against Israel. It will be periodically updated.
Definition of Genocide
The definition of genocide includes a number of acts that can be considered genocide if (and only if) they are accompanied by an intention to destroy (in whole or in part) a national, ethnic, racial or religious group.
The Genocide Convention provides the definition of genocide:
“In the present Convention, 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.”
The key to both South African and Israeli arguments will be about intentions.
First, South Africa is arguing that the harm to civilians caused by Israel since 7 October was intentional. Israel is arguing that the harm to civilians caused by its military actions since 7 October was an unintended and unwanted outcome of its justified objective of removing Hamas from power.
Second, South Africa is arguing that the harm to civilians caused by Israel is a deliberate attempt to destroy Gazan Palestinian society. Israel is arguing that it has no such intention and that its actions are intended to remove Hamas from power (and return its hostages).
Actions
South Africa claims that Israel has killed over 21,000 Palestinians (South Africa makes no distinction between combatants and civilians), that Israel has ‘laid waste to vast areas of Gaza, including entire neighbourhoods’, and that Israel’s failure to ensure humanitarian aid reach Gazan civilians all amounts to a pattern of behaviour that indicates (along with Israeli stated intentions—see below) genocidal intent.
Israel maintains that its military actions comply with international humanitarian law. The significant damage to housing, hospitals, schools and other civilian infrastructure is explained by Israel as military necessity. Specifically, that Hamas uses these civilian objects for military purposes (thus removing their immunity from attack), and Israel is forced to attack them to defend its soldiers. Israel also claims that Hamas has boobytrapped many hundreds of civilian objects with explosives in an effort to kill Israeli soldiers.
It is significant that nowhere in the South African application are Hamas tactics mentioned. (For example, the only mention of the tunnels in South Africa’s 84-page application is in the context of Israel’s attempts to flood some of them, not as an example of Hamas’s military tactics or embeddedness in civilian areas).
Hamas tactics of purposefully endangering civilians are widely known. There is no conceivable way of engaging in a military campaign designed to remove Hamas from power and/or destroy its military capability to attack Israel without significant harm to Gazan civilians. However, this does not, in and of itself, undermine the justice or necessity of Israel’s objective.
That the South African application chose to record the harm to Gazan civilians caused by Israel’s military campaign without mentioning at all Hamas tactics or the way it has embedded its military infrastructure within civilian areas reveals a weakness of the South African case.
Further to ignoring the Hamas tactics that purposefully endanger Gazan civilians, the South African application also ignored the many Israeli efforts to minimise harm to Gazan civilians (such as advanced warning of impending attacks). Acknowledging these actions would have significantly undermined the South African argument that Israel is seeking to destroy Gazan society.
Irrespective that they were ignored by South Africa, these actions are widely recorded, and should be pointed out in an intervention to the ICJ.
Conclusion: The South African approach of cherry-picking facts, and ignoring widely known facts that undermine its argument, shows the weakness of its case.
Need to prove intent
In order to win its case, South Africa will have to prove that Israel intends or intended to commit genocide. There are two ways that South Africa has tried to do so; by citing the statements of Israeli officials, and by pointing to Israeli actions in Gaza, arguing that their pattern of behaviour infers a genocidal intent.
Statements
The South African application uses, as evidence of Israeli intention to commit genocide, statements by Israeli politicians. However, some things, which completely undermine the South African argument, should be noted.
First, most of these politicians have no decision-making authority over Israeli operations in Gaza.
Second, the South African application has cherry-picked statements; it ignored the many statements made by Israeli politicians that clearly differentiate between Hamas and Gazan civilians, and also ignored statements by politicians that condemned the offensive statements referred to in the previous point.
Third, the three most important examples used by the South African application are those of the Israeli President, Prime Minister and Defence Minister. However, on each occasion (sometimes in the same speech), the individual in question clarified that the intended target of Israel was Hamas, and not Gazan civilians.
Because of the importance of these individuals, they are addressed here.
President Isaac Herzog
President Isaac Herzog was quoted in the South African application as saying, “It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware not involved. It’s absolutely not true… and we will fight until we break their backbone.”
President Herzog did say this. However, in the same press conference, a reporter asked him a clarifying question: “You seem to hold the people of Gaza, the civilians of Gaza responsible for not removing Hamas and therefore, by implication, that makes them legitimate targets.”
Herzog replied: “No, I didn’t say that. I did not say that — I want to make it clear”.
The South African application made no mention of the numerous times that Herzog has made clear the distinction between combatants and civilians (for instance, in this New York Times opinion piece).
Prime Minister Benjamin Netanyahu
The South African application cites numerous examples of Israeli Prime Minister Benjamin Netanyahu invoking Biblical enemies. He is twice quoted as describing the situation as ‘a struggle between the children of light and the children of darkness’. He is also quoted as referring to Amalek; ‘You must remember what Amalek has done to you, says our Holy Bible. And we do remember’.
The South African application reminds us that the Israelites were commanded in the Bible to render what in today’s terms would be considered genocide upon the people of Amalek.
Netanyahu did say these things. However, he has also repeatedly stated that Israel seeks to avoid harming civilians. For instance, he stated on X, “Israel and the IDF are operating in accordance with the highest standards of international law to avoid harming innocents. We will continue to do so until our victory.”
The South African application made no mention of the numerous times that Netanyahu made clear the distinction between combatants and civilians.
Defence Minister Yoav Gallant
Likely the most damning statement was that of Defence Minister Yoav Gallant. He was quoted in the South African application as saying that Israel was “imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals and we are acting accordingly.”
The South African application also said, “He also informed troops on the Gaza border that he had “released all the restraints”, stating in terms that: “Gaza won’t return to what it was before. We will eliminate everything. If it doesn’t take one day, it will take a week. It will take weeks or even months, we will reach all places.” He further announced that Israel was moving to “a fullscale [sic] response” and that he had “removed every restriction” on Israeli forces.
He did say those things. However:
The South African application made no mention of the many times that Gallant has distinguished between combatants and civilians.
If the South African application had mentioned the many times that Israeli politicians (including those who are decision makers in this war) distinguished between combatants and civilians, it would have fatally undermined the South African case, which is why they were excluded.
However, it remains that Israeli leaders have consistently done so, and this should be highlighted in the ICJ.
Conclusion: Given the numerous statements that Israeli decision makers have made that clearly refer to the distinction between combatants and civilians, and Israeli efforts to actively avoid harming the latter, it is impossible to infer from Israeli statements an intention to commit genocide.
Pattern of behaviour
The ICJ’s 2007 Bosnia v Serbia judgement accepted that genocidal intent could be inferred from a pattern of behaviour, but only if that pattern “could only point to the existence of such intent” [and nothing else].
However, it is clear that objectives other than genocide can be inferred from Israeli actions.
Israel has the means to perpetrate a genocide on Gazans. To be blunt, it has the capacity to kill every Gazan within days. It has not done so.
Israel has taken measures to minimise civilian casualties. These include early warnings of intended operations and efforts to facilitate evacuations. Further, more than just allowing humanitarian aid to enter Gaza from Egypt, Israel has actively facilitated humanitarian aid to enter across the Gaza-Israel border. All this is designed to minimise civilian casualties and the suffering of civilians that the war has incurred.
It is entirely possible to infer from Israel’s pattern of behaviour in Gaza that the level of destruction caused by Israel is due to military necessity; Gaza is a highly complex urban environment, due to Hamas combatants using civilian objects as shelter, weapons storage and launch places for attacks, with houses booby-trapped, and with complex tunnel networks under (and opening up into) civilian areas.
It is telling that nowhere in the South African application are Hamas’s tactics of using civilian objects for military purposes mentioned. Doing so would undermine the South African case that the only possible conclusion to be drawn from Israel’s pattern of behaviour was genocidal intent.
Conclusion: It can be clearly shown that an intention to commit genocide cannot be drawn from Israel’s pattern of behaviour, and certainly not to the standards required by the ICJ.
The ICJ’s preliminary ruling
Rather than try to decipher the Court’s ruling, we are cutting and pasting the summary of this analysis. We find it really useful, and urge you to read the whole analysis, if you’ve got the time.
“To obtain provisional measures South Africa had to show a plausible case that Israel might have breached the Genocide Convention. The Court’s reasons for its decision are vague and difficult to follow, and the Court does not expressly identify what it has or has not found to be plausible. However, reading the Court’s reasons together with the separate declarations of members of the majority, the measures the Court granted, and the measures sought by South Africa which were not granted, it appears that:
Accordingly, the Court did not order Israel to cease its military operation or to cease actions that cause people to be displaced. For the most part the measures the Court pronounced do no more than restate obligations to which Israel was already subject under international law. The only new obligation of any real substance is to provide a report to the Court within a month.”
