Why South Africa’s legal genocide case against Israel is weak
by Garvan Walshe, Conservative Home:
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.
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