Garvan Walshe is a former National and International Security Policy Adviser to the Conservative Party
If you accuse anyone of genocide, you had better have good command of the facts. If the state you accuse is the Jewish state, it pays to be doubly sure.
Last week, South Africa and Israel exchanged oral argument in the opening stages of the case at the International Court of Justice (ICJ) that Pretoria has brought under the Genocide Convention. The full trial could take years, but this stage concerns “provisional measures” (an injunction) South Africa is seeking against Israel. We can distinguish three elements of South Africa’s argument: the one it would like to make, the one it is forced by the evidence to make, and the political impetus behind it.
The convention, signed in 1948, with the Holocaust having concluded three years earlier, criminalises genocide and its incitement. It obliges signatories to pass laws to punish individuals responsible, and empowers the ICJ to rule on disputes between states about the convention’s application. Recent ICJ jurisprudence in cases involving Myanmar’s actions against the Rohynga establishes that even a state not directly involved may take another to the ICJ for genocide.
South Africa’s first element is that Israel’s military operations in Gaza constitute, in the words of the Convention, “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” Those last two words, “as such”, pose a grave problem for South Africa – so grave, in fact, that South Africa’s application omits them from the main part of its application to the court (relegating them to its incitement case, below).
This is because the Genocide Convention was not created to regulate the treatment of civilians in war, which is the province of the Geneva Conventions, but to forbid the deliberate elimination of groups. Of such deliberate extermination, as distinct from brutal urban warfare in which civilians are killed or deprived of access to food and shelter in pursuit of a military objective, South Africa could not find evidence. Indeed, its own lawyer was reduced to alleging that “genocide could be inferred” – a serious difficulty when the crime requires proof of intent.
Though incredibly destructive, Israel’s operation is not out of step with battles against a guerrilla force that hides among — and in tunnels beneath — a city’s civilian population. In the international coalition’s operation to recapture Mosul from ISIS, Kurdish intelligence estimated over 40,000 civilians were killed, and civilians were able to escape from Mosul, but cannot from Gaza. The law of war provides a framework for dealing with these situations, but the balance of its principles has not been tested in any court.
South Africa’s inferral of genocide relies heavily on the question of internal displacement. Almost all of Gaza’s two million people have been displaced from their homes as a result of the fighting. South Africa says this is evidence of Israel’s genocidal intent. Israel counters that it is in fact the opposite: it is demanding that civilians leave the areas of fighting so that civilian casualties are reduced, and states (correctly) that issuing such orders is an obligation under the law of war.
Unlike in Mosul, getting Gaza civilians to flee the battle is not possible: Israel has no obligation to accept fleeing Gazans onto its own territory, Gazans worry anyway that they might not be allowed back (something that would itself be a major war crime, but one Palestinians believe Israel would perpetrate), and Egypt has shut its border with Gaza. The lesser evil, Israel argues, is to order them to move away from the areas of heaviest fighting. The consequences are horrific, but the orders have the effect of reducing civilian deaths rather than increasing them.
The second element of South Africa’s case — the one the facts forced it to make — was of incitement. “Direct and public” incitement to genocide is also forbidden by the Convention, and Israel has a duty to prosecute it.
Some of the statements by Israeli leaders South Africa cited were taken out of context: Netanyahu’s reference to the Biblical story of Amalek was not to the one commanding the destruction of all Amalek’s people, but a different verse in a different book of the bible that enjoins people “to remember what Amalek has done to you”. And the Defence Minister Yoav Gallant’s description was of Hamas, not all Gazans, as “human animals”.
Nevertheless, South Africa can rely on a number of statements by Israeli leaders including one by National Security Minister Itamar Ben-Gvir that “those who celebrate, those who support, and those who hand out candy — they’re all terrorists, and they should be destroyed” as well as other inflammatory statements by backbench Knesset members.
Here the South African advocates were hoping to lead the Israeli lawyers into a trap. Israel could argue those statements were just words, and that since they had not led to a campaign of genocide, Israel had upheld its duty to prevent it. But doing so would come at a significant political cost: it would require Israel’s legal team to say that these ministers were figureheads with no influence on military policy.
This is in fact the case — decisions are taken by Israel’s War Cabinet in which those ministers have no influence, but Netanyahu’s political survival depends on his coalition with Itamar Ben-Gvir’s party. Israel’s lawyers duly argued that these ministers were mere ornaments while Israel’s Attorney General also opened an investigation into incitement by some Knesset members. South Africa’s lawyers noted the latter while attributing it to the fact that they had brought the case.
If the incitement element of the case is better constructed, it is deficient from the South African point of view, in that the measures the court could order in response, though embarrassing for Israel, would not have the political effect it seeks.
At this stage of the proceedings, South Africa is asking the court to issue “provisional measures” demanding Israel (but not Hamas, which, not being a state, cannot sign up to the Convention) stop fighting, which requires it to conclude that it is “plausible” genocide is occurring. Though there is a strong incitement case against certain Israeli politicians, this is not enough to justify an urgent injunction. The absence of actual genocide means the incitement was unsuccessful and can be investigated and punished under normal Israeli processes or, if these are found wanting, when the ICJ issues its full judgement in this case.
Instead, the spotlight needs to fall on South Africa’s motivation. It opened its case arguing that the descendants of Palestinians displaced by the 1948 Arab-Israeli war should be able to return to their ancestors’ homes in what is now Israel. As well as being impractical some 76 years later, the Arab Peace Initiative, endorsed by the Palestinian Authority, considers South Africa’s claim excessive, and limits itself to requiring a “just solution” to this issue. South Africa has deliberately outflanked the Arab League and taken up the position of which Iran is the most vocal advocate.
It appears that South Africa is playing its part in what we might term the new BRICS (in which pro-Israel Narendra Modi’s India has been replaced by Hamas-supporting Iran). It is an attempt to divide the West in the guise of post-colonial ideology, but in the interests of actual imperialists in Moscow and Beijing. Like this case, attacks on shipping in the read sea by Yemen’s Iran-backed Houthis, against whom the West has now launched air strikes are part of an effort to distract us from the defence of Ukraine and from securing democracy in Taiwan.
If the Court wants to continue to administer justice, rather than become an instrument of authoritarian attacks on the democratic world, it needs to throw this case out