Why is Israel Being Accused of Genocide?

South Africa has referred Israel to the International Court of Justice (ICJ), accusing the Middle Eastern country of committing genocide in Gaza. This follows reports that allege that over 22,000 people, mostly civilians, have been killed in the Gaza Strip since the start of the October 7 Hamas-Israel war.

In this article, we'll discuss South Africa's genocide allegations against Israel. We'll also explain the nature of the ICJ and the weight of its rulings.

Background

On October 7, 2023, Hamas, an Iran-funded terror group, carried out a coordinated attack on random Israeli towns, killing 1,200 people and kidnapping some 240 others. The attack, which came at a time of rising Israel-Palestine tensions, was described as one of the worst terrorist attacks in history.

Israel's military, the Israel Defense Forces (IDF), responded to the attack by carrying out air strikes and a ground offensive in Gaza. This led to the deaths of over 22,000 people in Gaza, a figure provided by the Hamas-run health ministry.

South Africa subsequently filed a case at the ICJ, accusing the Israeli government of having an intent to commit genocide against Palestinians.

What is the International Court of Justice (ICJ)?

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN) formed in 1945. This court exists to settle legal disputes between states, promote international cooperation, and contribute to the development of international law.

The ICJ comprises 15 judges elected by the UN General Assembly and Security Council. These judges serve nine-year terms, and no two judges can be nationals of the same country. The court operates year-round, holding regular sessions and emergency sessions when required. Proceedings involve written and oral phases, with parties presenting their arguments, evidence, and witnesses.

Key Principles and Sources of Law

The ICJ relies on various sources of international law, including treaties, customary law, general principles of law, and judicial decisions. It applies principles of equity and justice to ensure a fair and impartial resolution of disputes.

The rulings of the court are binding and final but cannot be forced on any country. As such, some countries choose to ignore or not fully comply with ICJ decisions.

Prominent Cases and Contributions

Throughout its history, the ICJ has heard numerous landmark cases. Notable examples include The Republic of Nicaragua v. The United States of America, where the court addressed issues of state responsibility and intervention, and the Kosovo Advisory Opinion, which examined the legality of Kosovo's declaration of independence.

Key Members and Noteworthy Presidents

Over the years, the ICJ has seen the participation of esteemed judges from diverse legal backgrounds. Notable presidents have included Sir Muhammad Zafrulla Khan, Sir Robert Yewdall Jennings, and current president Joan E. Donoghue.

Why a genocide claim?

For many, it is hard to understand the basis of South Africa’s genocide allegation.

After all:

• Hostage situation: Hamas began this war, not Israel, and to this day, the terror group still holds a number of Israeli hostages, including women and children. Some abductees are under age 3.
• Civilian casualties: While it’s unfortunate that civilian deaths have been recorded, all casualties are within combat zones. Israel is extremely careful with civilians and has teams of lawyers that check military decisions in real-time to ensure fewer civilian casualties.
• Use of human shields: There is evidence to suggest that Hamas uses civilians in Gaza as human shields. Hamas also operates from schools, hospitals, UN shelters, and places of worship in order to hide behind civilians. Other reports suggest that Hamas terrorists sometimes deploy civilians, including children, to fight tanks and plant explosives.
• Israel’s military approach: Israel is a military superpower and could have easily killed more than 1% of Gaza’s population if it truly had a genocidal intent. Instead, The IDF sends ground forces on dangerous missions to Gaza in order to reduce civilian deaths. The easier solution, if Israel had no regard for civilian casualties, would be indiscriminate bombing. If Israel intends genocide, why would they risk their soldiers' lives to reduce civilian casualties?
• Gazan population: The Hamas-run Gazan Ministry of Health (MoH), says some 23,210 Palestinians have been killed in Gaza since the Hamas war — a figure equivalent to about 1% of the Gazan population. Although this figure is tragic, it is hard to describe the deaths of 1% of a people as genocide.
• Comparisons to death rates in other conflicts: Compared to casualty rates in conflicts like the one in Ukraine (which South Africa has refused to condemn), the killings in Gaza (though unfortunate) are relatively low. 
• Hamas's intent: Many argue that if there's any genocidal intent, it should be attributed to Hamas. The terror group has  a call for the genocide of Jews in its charter. “The Day of Judgment will not come about until Muslims fight the Jews (killing the Jews) when the Jew will hide behind stones and trees. The stones and trees will say: O Muslims (…) there is a Jew behind me, come and kill him. “Only the gharkad tree [evidently a certain kind of tree] would not do that because it is one of the trees of the Jews.” - Article 7 of the Charter of Hamas.
• Iran's plot: Hamas's ally, Iran also expresses similar sentiments. In 2005, the country said it would wipe Israel off the face of the map. In President Mahmoud Ahmadinejad's own words,  “Anybody who recognizes Israel will burn in the fire of the Islamic nation's fury, … any [Islamic leader] who recognizes the Zionist regime means he is acknowledging the surrender and defeat of the Islamic world." “... There is no doubt that the new wave [of attacks] in Palestine will wipe off this stigma [Israel] from the face of the Islamic world." “Israel must be wiped off the map.”

Based on these arguments, it's safe to say South Africa’s genocide claim lacks merit.

What is the History of South Africa’s Relationship With Israel?

South Africa's genocide claim against Israel has undoubtedly further strained the already shaky relationship between the two countries. Here is an overview of key phases in their historical ties:

• In the 1940s, South Africa and Israel had a friendly relationship. The African country became one of the first states to give official recognition to Israel.
• Israel, in turn, opened a consulate-general in Pretoria.
• In the 1950s, the relationship between Israel and South Africa deepened, with increased economic cooperation.
• During the 1950s-1960s, apartheid issues, and related UN debates complicated the relationship between Israel and South Africa.
• The end of apartheid in the early 1990s marked a turning point in the relationship. South Africa's new government, led by Nelson Mandela, criticized Israel's policies toward the Palestinians. The two countries also adopted different positions on various other international issues.
• During parts of the 21st century, Israel and South Africa maintained diplomatic relations, but these are often strained due to differences in their approaches to the Israeli-Palestinian conflict. South Africa has been critical of Israel's policies, leading to occasional diplomatic tensions.
• As of 2023, South Africa's ruling African National Congress (ANC) maintained a strong pro-Palestinian stance.
• The ANC accused Israel of apartheid against Palestinians, a claim strongly resonating with South Africa.
• In November 2023, South Africa recalled its ambassador to Israel and closed its embassy in the Middle Eastern country.
• South African lawmakers also voted to close down Israel's embassy in Pretoria.
• Weeks after the October 7 attacks, a group of Hamas officials visited South Africa. 

More on the South Africa-Israel Genocide Case at the ICJ

South Africa's legal team, led by justice minister Roland Lamola, argues that Israel’s military campaign in Gaza violates the Genocide Convention. “The level of Israel's killing is so extensive that nowhere is safe in Gaza," Adila Hassim, one of South Africa's lawyers, told the court.

"As I stand before you today, 23,210 Palestinians have been killed by Israeli forces during the sustained attacks over the last three months, at least 70% of whom are believed to be women and children," Hassim added.

Meanwhile, Israel has strongly rejected the accusation of genocide, saying that it is only acting in self-defence. Prime Minister Benjamin Netanyahu, in a video statement, reacted to South Africa’s opening arguments. 

 "The hypocrisy of South Africa knows no bounds…The state of Israel is accused of genocide at a time when it is fighting genocide.”

Israel's foreign ministry also reacted.

"Today, we witnessed one of the greatest shows of hypocrisy in history and a series of baseless and false claims. South Africa is ignoring the fact that Hamas terrorists infiltrated Israel, murdered, executed, massacred, raped, and kidnapped Israeli citizens, just because they were Israelis, in an attempt to carry out genocide.”

Dr. Gilad Noam, one of Israel's lawyers, presented the following closing arguments in his client’s defense:

“Entertaining the applicant’s request would weaken efforts to punish genocide and instead of [the court] being an instrument to prevent terrorist horrors would turn it into a weapon in hands of terrorist groups who have no regard for humanity and rule of law,” said Noam.

South Africa’s stance, if universally accepted, “Would signal to terrorist groups that they can commit war crimes and crimes against humanity and then seek the protection of this court,” he added. .

What Other Countries and Organizations Have Said About the Case

Parts of a Palestinian foreign ministry statement read: “International Court of Justice... is a historic event in the process of the joint Palestinian and South African struggle in the face of the injustice and genocide.”

"Holding Israel, the illegal occupying power, accountable, using all legal tools, and through international justice institutions and international law enforcement, is the main focus of the legal strategy of the State of Palestine, and the core of the diplomatic and international movement.

"...What encouraged Israel and its various tools, including government officials, military personnel, and colonialists, to commit crimes, leading to the commission of, and incitement to commit, the crime of genocide, is due to international failure, the failure to take practical steps to hold it accountable..., and supplying Israel with various types of lethal weapons and political support…”

Meanwhile, Hamas spokesman Sami Abu Zuhr said, "The Palestinian people are following the court session in The Hague with great concern and interest ... We urge the court to reject all pressure and take a decision to criminalize the Israeli occupation and stop the aggression on Gaza.”

German foreign minister Annalena Baerbock:

"It is a fact that genocide preconditions the intention to destroy or partly destroy a group because of their nationality, ethnicity, race or religion. I cannot detect any of this intention by Israel in its self-defence against an armed terror group, Hamas. We will observe the hearing closely."

The President of Namibia, Hage Geingob, reacted to the Hague case in a statement on X:

“Germany has chosen to defend in the ICJ the genocidal and gruesome acts of the Israeli government against innocent civilians in Gaza and the occupied Palestinian Territories.” 

U.S. Secretary of State Antony Blinken:

"The U.S. believes South Africa's genocide submission against Israel distracts the world from important efforts for peace and security.”

Does the court have any power to enforce a ruling?

The ICJ’s rulings are binding and cannot be appealed. However, the court doesn’t have the authority to enforce any of its decisions and only depends on the will of the parties involved to act accordingly. In fact, previous ICJ rulings have been ignored with little or no consequence.

Simply put, Israel cannot be compelled by the ICJ or South Africa to cease its military operations in Gaza.  

What Happens Next? 

Israel strives to uphold lawful and ethical policies despite facing severe security threats. The evidence shows that amidst an incredibly complex security environment, Israel takes significant steps to adhere to rules of engagement and minimize civilian casualties. The restraint and care shown, despite constant provocations, reveal the nation of Israel's moral principles in action.

The ICJ lacks any enforcement capacity. As such, a verdict against Israel would carry no legal penalties beyond reputational harm. Without concrete impacts beyond stigma, the case becomes more of a prosecution in the court of public opinion rather than a genuine legal adjudication.

However, the prominence of the ICJ guarantees international attention regardless of legal outcomes. The unfounded allegations against Israel will have an impact on the global narrative.