South Africa never really had a chance in its genocide claims against Israel if applying the laws of war, being that the entire “show” before the International Court of Justice is a political stunt designed to blacken Israel’s name using legal-sounding language to launder an anti-Israel agenda.
But many of the arguments that its lawyers made on Thursday were so specious that they removed any veil of seriousness that they might have held on to.
From the start, South Africa really had two arguments to go on which had any remote legal significance – forget about having any chance to actually prove genocide.
They were that top Israeli officials had made horrible statements (many of them should not have been said and were very morally problematic even if legally insignificant) which could allegedly be used to infer genocidal intent and that the IDF had allegedly killed 23,000 Palestinians, likely somewhere between a majority to 60% or 70% civilians.
If South Africa had stuck to these arguments, any serious lawyer or judge still would have tossed them out of court because none of the statements they provided from public officials were official policy or legal statements, many were by officials without real influence over the war, those by key officials could easily be read in context as metaphorical, Israel has publicly produced vast amounts of evidence that it has expended enormous resources to avoid killing Palestinian civilians, and acknowledged and explained errors (which happen in all wars) where errors have occurred.
But South Africa could not help itself. It went down a road of a series of arguments that exposed an anti-Israel worldview that has no connection to the laws of war, let alone the Genocide Convention, and further undermined the foundations of any case it might have tried to make.
It also ignored some critical threshold facts that anyone trying to prove a single war crime, let alone the even higher threshold for the penultimate war crime of systematic genocide would need to confront.
South Africa’s disconnected argument
Here is a list of some of the worst offenders:
South Africa did not mention Hamas’s systematic use of the Palestinian civilian population and civilian locations, including schools, mosques, and UN buildings, as human shields.
The US and other European countries have condemned Hamas for doing this.
Even the International Criminal Court has made statements implicitly acknowledging that Hamas has done this, with its criticism being more narrow sometimes about whether Israel has properly applied the proportionality test – something, even in the worst case, which is far away from genocide.
South Africa clung to prior arguments from the 2004 ICJ case against the legality of Israel’s West Bank security barrier, saying Israel had no self-defense right because it was an occupier acting in Palestinian territory.
But this time, there was an “armed attack” by Hamas on October 17 invading 22 Israeli towns, killing 1,200 Israelis, mostly civilians, and over 3,000 rockets were fired against Israel’s home front.
So putting aside the 2004 ruling which Israel rejected at the time, even according to the logic of the ICJ at the time, in 2023, there is no question that Israel had the right to counter-strike as part of self-defense.
South Africa claimed that Israel is settling Gaza, but provided no evidence. Of course, it provided no evidence, because there is none. True, there are some ministers who are not part of the critical five-member war cabinet who dream about resettling Gaza, but the war cabinet, Prime Minister Benjamin Netanyahu, all official policy and legal positions, and the actual view in the field show that there has not been a single move to settle Jews in Gaza.
Israel has discussed the need for a limited security zone where only soldiers would stand guard, but that is not remotely the same, and even that is not something that has happened yet, and would likely require widespread buy-in by the US and other Western countries.
In practically a twilight zone moment, one South African lawyer said that the IDF’s warning to Palestinians in mid-October to evacuate northern Gaza within 24 hours was itself a war crime.
Warning civilians to evacuate is an obligation under the laws of war if one is planning to attack an area.
There is no provision in the laws of war that says that more than a 24-hour warning is required, and there are an unlimited number of examples where less time is given as a warning.
This is without even getting into the fact that the IDF did not actually invade until a week-and-a-half after its initial warning, such that it later gave additional warnings and extensions which certainly went beyond the minimal obligations laid out by the laws of war.
In fact, the vast majority of northern Gaza’s 1.4 million or more people successfully evacuated using times and zones provided by the IDF.
Were there mistakes here and there when Hamas engaged the IDF in an area where Palestinian civilians were evacuating, likely in order to try to lead the IDF into fighting with civilians’ lives in the middle of a gunfight? Probably. But mistakes are not a war crime, and certainly not genocide – and a warning to evacuate is the opposite of genocide.
There are some interesting questions about whether it was legal for Israel not to provide water to the Palestinians in the early days of the war, after which Jerusalem did ensure the provision of water.
But these are complex questions since typically the laws of war refer to allowing a third party to provide water to civilians, not an obligation of one party in hostilities to directly provide water to the other party in hostilities.
Certainly, no one could argue that Israel committed genocide from a short period of days of not directly providing water to Hamas right after the terror group had invaded Israel and killed 1,200 Israelis, mostly civilians, when for the vast majority of the war Israel has facilitated the provision of water.
Likewise, there were a few specific instances where South Africa said that Israel denied the entry of humanitarian assistance to specific hospitals, such as on January 8.
An IDF source said they were unfamiliar with the claims, but there have been instances where the IDF had to delay aid delivery to hospitals or other areas because of fighting in the area with Hamas.
This is not a violation of the laws of war, but a standard security precaution. The proof is the enormous number of times that Israel has facilitated aid deliveries.
Even if Israel has fouled up in some individual instances with aid deliveries, or its security procedures have sometimes been too time-consuming, these would likely constitute errors in a time of war, not war crimes, and certainly nothing near genocide.
More bizarrely, South Africa claimed that Israel committed genocide because it did not provide fuel.
There is nothing about an obligation to provide fuel in the laws of war, and most serious international lawyers would recognize that it would be unthinkable to do so at a point when Hamas would have used the fuel to continue firing hundreds of rockets per day on Israel’s home front.
Underneath all of this was an opening statement attacking Israel for crimes against the Palestinians not just since 1967 as some more honest if misguided critics, go after Israel for, but dating back to 1948.
In other words, South Africa implicitly questioned Israel’s right to exist as an independent Jewish state.
That position is probably the only way to make sense of South Africa’s strange performance.
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