The ICJ Should Have Dismissed South Africa’s Absurd Genocide Case Against Israel
Zionist Organization of America (ZOA) President Morton A. Klein and ZOA Director of Research and Special Projects Liz Berney, Esq. released the following statement:
On the eve of Holocaust Remembrance Day, the United Nations’ so-called International Court of Justice (ICJ) perverted the purpose of the Genocide Convention of 1946 by issuing six unwarranted, unjust, unnecessary “provisional measures” against Israel – the victim of Hamas and Gazan “civilians” genocidal October 7th attack. Former Israeli Supreme Court Justice Aharon Barak, who served as an “ad hoc Judge” in this ICJ case, appropriately wrote in his partial dissenting opinion that the ICJ case brought against Israel “wrongly sought to impute the crime of Cain to Abel.”
Ugandan ICJ Judge Julia Sebutinde (in defiance of Uganda’s bigoted anti-Israel position) also correctly wrote in her dissenting opinion that the case against Israel did not belong in court; that there was no demonstration that Israel had genocidal intent, and no demonstration that the genocide claims against Israel were plausible. Accordingly, Judge Sebutide concluded that “the provisional measures [in the ICJ Court] Order are not warranted.” Judge Sebutide’s conclusion should have been the conclusion of the entire court. No provisional measures should have been issued. The ICJ should have dismissed the entire absurd “genocide” case brought against Israel by hypocritical severe human-rights violator South Africa[1] on behalf of Gazan Palestinian Arabs.
The ICJ’s “provisional measures” potentially interfere with Israel’s right to protect her citizens from the evil genocidal terror organizations and accompanying Palestinian “civilians” who perpetrated mass atrocities against innocent Israelis on October 7th and who openly swear to repeat October 7th again and again until Israel is annihilated. Thus, instead of preventing genocide, the ICJ’s provisional measures could help Hamas, Palestinian Islamic Jihad (PIJ) and other Palestinian terrorists and their “civilian” collaborators get away with committing genocide against the Jewish people.
The ICJ’s majority decision is wrong and dangerous for numerous reasons:
- The Genocide Convention Is Inapplicable to Israel’s Military Operations in Gaza. Thus It Was Wrong to Issue “Provisional Measures” in South Africa’s “Genocide Convention” Case Against Israel:
Israel’s legal team, and Judge Barak’s dissent explained that the proper framework for analyzing Israel’s military operations in Gaza is International Humanitarian Law (IHL) concepts – not the Genocide Convention employed by South Africa and the ICJ. Wartime civilian losses are not genocide. Especially when, as here, the purpose of Israel’s military operations is to destroy genocidal terror organizations Hamas and PIJ, prevent further atrocities against Israeli civilians and recover innocent Israeli hostages.
Judge Barak related in his dissent:
“The drafters of the Genocide Convention clarified in their discussions that ‘[t]he infliction of losses, even heavy losses, on the civilian population in the course of operations of war, does not as a rule constitute genocide. In modern war belligerents normally destroy factories, means of communication, public buildings, etc. and the civilian population inevitably suffers more or less severe losses. It would of course be desirable to limit such losses. Various measures might be taken to achieve this end, but this question belongs to the field of the regulation of the conditions of war and not to that of genocide.’”
This is only common sense. It is impossible to fight a terror group that hides among civilians without some civilian casualties. It is likely impossible to rescue hostages held by Gazan Palestinians without causing some casualties to the Palestinians holding them.
Subjecting a human rights-loving country such as Israel to an ICJ genocide case undermines Israel’s right to defend her people from genocidal terrorists.
- Israel Scrupulously Abides by the Applicable International Humanitarian Law
As Judge Barak and Israel’s attorneys explained, under IHL, harm to civilians is lawful so long as the civilian harm is anticipated to be proportionate to the anticipated military advantage. The balancing of anticipated harm versus military advantage is done prospectively. Thus, a military action is still legal under IHL if the actual civilian toll is larger than the anticipated civilian harm. Despite the difficulties that Hamas creates by embedding itself among the Gazan population (which is a war crime), Israel carefully analyzes every proposed operation beforehand, to avoid excessive civilian harm, and often calls off operations if civilian harm would be disproportionate to the military advantage.
Judge Barak moreover wrote in his opinion that Israel is committed to the rule of law and IHL, that “international law guides the actions of all Israeli soldiers wherever they are,” and that when Israel fights terrorism, “it does so with one hand tied behind its back.” Judge Barak further noted that pursuant to the IDF Code of Ethics requires, every Israeli soldier “will do everything in their power to prevent harm to [uninvolved civilians’] lives, bodies, dignity and property” – and that if these norms are violated, “Israel’s Attorney General, the State Attorney and the Military Advocate General take the necessary measures to bring those responsible to justice, and their decisions are subject to judicial review.”
There was clearly no necessity to issue provisional measures against Israel, which so scrupulously abides by International Humanitarian Law – even while fighting vicious terror organizations which violate every norm of humanity.
- There was No “Plausible Evidence” that Palestinians Need to Be Protected from Genocide. Israel has No Genocidal Intent
Under the Genocide Convention, an individual or entity or nation cannot be guilty of genocide unless he/it has “genocidal intent” – very high bar. There was no plausible evidence that Israel has any genocidal intent: Israel seeks to end Hamas and PIJ terrorism – not uninvolved civilians.
Falsely and misleadingly, South Africa and the ICJ opinion asserted that Israeli statements about Hamas terrorists referred to Palestinian civilians. As Judge Sebutinde correctly wrote in her dissenting opinion:
“Preconditions for the indication of provisional measures have not been met – South Africa has not demonstrated, even on a prima facie basis, that the acts allegedly committed by Israel and of which [South Africa] complains, were committed with the necessary genocidal intent, and that as a result, they are capable of falling within the scope of the Genocide Convention. Similarly, since the acts allegedly committed by Israel were not accompanied by a genocidal intent, the Applicant has not demonstrated that the rights it asserts and for which it seeks protection through the indication of provisional measures are plausible under the Genocide Convention. The provisional measures indicated by the Court in this Order are not warranted.”
Judge Barak’s opinion similarly noted that the ICJ may indicate provisional measures “only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible.”
Judge Barak compared South Africa’s bald unverified claims to the detailed evidence presented in other ICJ provisional measures cases. He demonstrated that the evidence was lacking here.
For instance, in The Gambia v. Myanmar provisional measures case in 2020, there were reports by two independent international fact-finding missions, based on “meticulous collection of evidence over two years, which included 400 interviews with victims and eyewitnesses, analysis of satellite imagery, photographs and videos, the cross-checking of information against credible secondary information, expert interviews and raw data,” plus an additional six field missions, before provisional measures could be issued. Judge Barak further noted that:
“The [ICJ]’s approach to plausibility in the present case is not akin to the one it took in the Gambia case, where the Court had compelling evidence of “clearance operations” committed against the Rohingya. These “clearance operations” included sexual violence, torture, the methodical planning of mass killing, denial of legal status, and instigation of hatred based on ethnic, racial, or religious grounds.”
By contrast, here, the ICJ opinion (paragraph 46) admitted that “figures relating to the Gaza Strip cannot be independently verified.” Despicably, the ICJ opinion then relied on inflated Hamas propaganda to issue its provisional measures. Further, the ICJ tried to hide the fact that it was doing so by citing anti-Israel UN bodies that were regurgitating the Hamas propaganda – including the United Nations Office for the Coordination of Humanitarian Affairs (OCHA); the World Health Organization (WHO) and the UN Relief and Works Agency (UNRWA) – whose employees participated in the October 7th atrocities. Judge Barak explained:
“Regarding the figures for death, injuries and damage to infrastructure, the Court omits to mention that such figures come from the Ministry of Health of Gaza, which is controlled by Hamas. They are not the United Nations’ figures. Furthermore, these figures do not distinguish between civilians and combatants, or between military objectives and civilian objects. It is difficult to draw any conclusions from them.”
The world also saw how Hamas inflates figures and falsely blames Israel when Hamas knowingly, falsely accused Israel of causing 500 Palestinian deaths by bombing Al-Ahli Hospital – when in fact a misfired Palestinian Islamic Jihad missile struck the hospital parking lot, causing few casualties.
U.S. National Security Council Coordinator for Strategic Communications John Kirby correctly stated that Hamas’ claims about an Israeli hospital strike were false, and explained:
“We all know that the Gazan Ministry of Health is just a front for Hamas. It’s . . . run by Hamas, a terrorist organization. . . . We can’t take anything coming out of Hamas, including the so-called Ministry of Health, at face value.”
Further, Judge Barak explained that Israel demonstrated that it has the opposite of genocidal intent, as follows:
“The evidence presented by Israel shows that it is the opposite intent that is plausible and guides the military operation in Gaza. Israel pointed out that it has adopted several measures to minimize the impact of hostilities on civilians. For example, Israel continues to supply its own water to Gaza by two pipelines; it has increased access to medical supplies, facilitated the establishment of field hospitals and distributed fuel and winter equipment . . . Furthermore, the Prime Minister of Israel stated on 17 October 2023 “[a]ny civilian death is a tragedy . . . we’re doing everything we can to get the civilians out of harm’s way,” and on October 28, 2023 that “the IDF is doing everything possible to avoid harming those not involved.”
It is surprising that the Court took note of Israel’s statements explaining the steps it has taken to alleviate the conditions faced by the population in Gaza, together with the Attorney General’s statement announcing the investigation of any calls for the intentional harm to civilians . . . , but then it completely failed to draw conclusions from these statements when examining the existence of intent. It is even more surprising that the Court did not view any of these measures and statements as sufficient to rule out the existence of a plausible intent to commit genocide.”
Simply put, Israel has no genocidal intent, and there was no basis for the ICJ’s provisional measures.
- South Africa Brought the ICJ Case in Bad Faith
South Africa brought the case in bad faith, without engaging in consultations with Israel, and without mentioning or asking the ICJ to address Hamas’ atrocities. South Africa’s ruling African National Congress party is virulently anti-Zionist and antisemitic. Following Hamas’ October 7th massacre, South Africa’s Department of International Relations and Cooperation said that “Israel does not have the ‘right to defend itself’ using military means”; South Africa’s international relations minister had a friendly phone conversation with Hamas leader Ismail Haniyeh; and South Africa lashed out at South African supporters of Israel and threatened to expel Israel’s ambassador. South Africa did not even call for Hamas to release a kidnapped South African, or kidnapped Israelis born in South Africa.
- The ICJ Decision Fails to Account for the Context of Hamas’ Atrocities
Judge Barak properly noted, the ICJ failed to give a complete account of the indisputable horrors perpetrated against Israelis on October 7th, and Hamas’ vow to repeat October 7th. These horrors and everything that has transpired since October 7th, including Hamas’ continued grave war crimes towards the hostages, should have provided “the inescapable backdrop for the legal analysis of Israel’s actions.”
Barak’s description is well worth reading. We are concluding by quoting some of it here:
“On 7, October 2023, on the day of the Sabbath and the Jewish holiday of “Simchat Torah”, over 3,000 Hamas terrorists, aided by members of the Palestinian Islamic Jihad, invaded Israeli territory by land, air and sea. The assault began in the early morning hours, with a barrage of rockets over the entire country and the infiltration of Hamas into Israeli territory. Alerts sounded all over Israel, civilians and soldiers took shelter, and many were later massacred inside those shelters. In other places, houses were burned down with civilians still in their safe rooms, burning alive or suffocating to death. At the Reim Nova Music Festival, young Israelis were murdered in their sleep or while running for their lives across open fields. Women’s bodies were mutilated, raped, cut up and shot in the worst possible places. Overall, more than 1,200 innocent civilians, including infants and the elderly, were murdered on that day. Two hundred and forty Israelis were kidnapped and taken to the Gaza Strip, and over 12,000 rockets have been fired at Israel since 7 October. These facts have been largely reported and are indisputable.
Israel, faced with an ongoing assault on its people and territory, launched a military operation. The Israeli authorities declared that the purpose of the operation is to dismantle Hamas and destroy its military and governmental capabilities, return the hostages, and secure the protection of Israel’s borders.
Hamas has vowed to “repeat October 7 again and again.” Hamas is thus an existential threat to the State of Israel, and one that Israel must repel. This terrorist organization rules over the Gaza Strip, exercising military and governmental functions. Hamas seeks to immunize its military apparatus by placing it within and, below civilian infrastructure, which is itself a war crime, and intentionally places its own population at risk by digging tunnels under their homes and hospitals. Hamas fires missiles indiscriminately at Israel, including from schools and other civilian installations in Gaza in the full knowledge that many of them will fall inside Gaza causing death and injuries to innocent Palestinians. This is Hamas’s well-known modus operandi.
A few examples illustrate this well. When humanitarian aid enters Gaza, Hamas hoards it for its own purposes. Hamas has made clear that its tunnel network is designed for its fighters, rather than for civilians seeking shelter from the hostilities. Hamas has compromised the inherently civilian nature of schools and hospitals in Gaza, using them for military purposes by storing or launching rockets from and under these sites.
The fate of the hostages is especially disturbing. The act of hostage taking committed by Hamas on 7 October constitutes a grave breach of the Geneva Conventions of 12 August 1949 and is criminalized under the Rome Statute. Hamas has not provided the names of the hostages, or any information regarding who is dead and who is still alive. Nor have they allowed the International Committee of the Red Cross (ICRC) to visit the hostages, as the law requires. The ICRC has not been able to provide medical supplies to the hostages, does not know their whereabouts, and has not succeeded in securing their release. As I write, this agony has now been ongoing for over 100 days. . . .
The State of Israel was brought before this Court as its leadership, soldiers, and children processed the shock and trauma of the attack of 7 October. An entire nation trembled and, in the blink of an eye, lost its most basic sense of security. Fears of additional attacks were palpable as infiltrations continued in the days following the attack. The immediate context in which South Africa’s request was brought to the Court should have played a more central role in the Court’s reasoning. While it in no way relieves Israel of its obligations, this immediate context forms the inescapable backdrop for the legal analysis of Israel’s actions even at this stage of the proceedings.”
In sum, the ICJ should never have issued provisional measures against Israel. Hamas and its allies are the parties who have genocidal intent. The case against Israel should be dismissed as soon as possible.
[1] The U.S. State Department reports that South Africa’s horrendous human rights abuses include “credible reports of: unlawful or arbitrary killings; torture or cruel, inhuman, or degrading treatment or punishment by the government; harsh and life-threatening prison conditions; arbitrary arrest or detention; serious government corruption; trafficking in persons; and crimes involving violence or threats of violence targeting [LGBTQI] persons,” and conflict-related abuses including sexual exploitation and raping children.