South Africa’s genocide charges against Israel: Cynical abuse of the ICJ - opinion

The cynical use of the term genocide

While nothing is surprising in the international realities in which we live, it is nevertheless ironic that the International Court of Justice in the Hague, the world’s principal judicial organ, is being petitioned by South Africa, at the evident behest and initiative of the Palestinian leadership, to adjudge the State of Israel for the alleged crime of genocide against the Palestinian people of Gaza.

The irony emanates first and foremost from the nature and history of the very term “genocide” – a term coined in 1944 by a Jewish lawyer, Raphael Lemkin, to describe the Nazi atrocities against the Jews during the Holocaust in Europe. 

This term was ultimately coopted into international law by the international community when it adopted in 1948 the UN Convention on the Prevention and Punishment of the Crime of Genocide, which criminalized acts “committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.”

The irony is all the more intense when one considers that the present armed conflict between Israel and Hamas broke out as a result of a repeated and declared intention, as well as a distinct series of actions by Hamas, to annihilate not only Israel and its population, but to direct its murderous designs against Jews wherever they are. 

Since Israel constitutes in and of itself a distinct national, ethnic, racial, and religious entity, one may ask why no country or international organization has sought to apply the criteria inherent in the genocide allegation, to the designs and actions of the Palestinian leadership, including Hamas, both of whom are formally committed to “armed resistance against Israel and to the creation of an Islamic Palestinian state in Israel’s place.”

PLO and Hamas charters show intent of committing genocide against Israel

In fact, the still valid 1968 PLO National Charter declares that “armed struggle is the only way to liberate Palestine” and asserts the “absolute determination and firm resolution to continue the armed struggle and to work for an armed popular revolution for the liberation of the country.” 

It calls for “commando action and armed revolution as the nucleus of the Palestinian popular liberation war,” and expressly rejects all solutions that are substitutes for the total liberation of Palestine. 

The terms of Hamas’s own national covenant of 1988 amplify this intention by gleefully calling “to raise the banner of Allah over every inch of Palestine” and “to liberate Palestine and confront the Zionist project.” 

If this is not an intention to commit genocide, then one may ask what it is?

This platform of genocidal advocacy has clearly inspired the blind and inane calls “from the river to the sea Palestine will be free” and the like, voiced by the concerted and well-financed Palestinian international brainwashing campaign, and parroted at mass demonstrations on US and Canadian campuses, at major cultural and sport events, and on the streets throughout Europe.

Such calls for genocide against Israel and the Jews unabashedly and gleefully echo the aims of the Palestinian and Hamas charters. 

South Africa's genocidal claim echoes Palestinian charters

IRONY IS not lacking from the specific terms of the South African application to the International Court of Justice, alleging that Israel is violating the Genocide Convention. This is especially in light of the deliberately distorted and misleading interpretation given by South Africa to the terms of the Genocide Convention. 

The criminal component of the Genocide Convention is based entirely on one very central tenet requiring a distinct intention to commit genocide. South Africa is alleging that Israel’s acts are “intended to bring about the destruction of a substantial part of the Palestinian national, racial, and ethnic group.” 

If such a specific and distinct genocidal intention cannot be proved and does not exist, then the complaint by South Africa has no basis and the convention cannot be invoked.

A thorough perusal of the complaint reveals a curious tendency by South Africa to attribute to Israel a broad and clearly false 75-year genocidal intention to destroy the Palestinians. By so doing, South Africa basically is echoing the messages of the PLO and Hamas charters, and as such is utterly distorting the very nature of the present limited conflict against the terror activity of Hamas. 

Clearly, rather than harboring a 75-year-old genocidal intention, Israel has, throughout its short history, consistently sought to achieve peaceful coexistence and bon voisinage with its neighbors, including the Palestinians.

This is borne out by the many agreements reached, including the 1978 Camp David Accords and the 1991-1993 Madrid process that led to the 1995 Oslo Accords. 

One may ask why would Israel have committed itself to such a declared and agreed peace negotiation process with the Palestinians, witnessed and endorsed by the leaders of the international community and the United Nations itself, if it harbored any basic intention to commit genocide against the Palestinian people?

South Africa's cynical use of the term genocide

Through quoting in its complaint a lengthy collection of irresponsible statements by minor Israeli politicians, and even through quoting Israeli pop songs, South Africa is in fact cynically ignoring the very central issue of the conflict between Israel and Hamas: Israel’s inherent and legally justified prerogative and international right to defend itself and its population against terror through removing Hamas’s terror capabilities, weaponry, fortifications, and ammunition. 

To claim that Israel’s actions to combat terror constitute the crime of genocide is clearly absurd to the point of being a frivolous accusation. No logical and serious analysis of the conflict between Israel and Hamas could indicate any genocidal intention on the part of Israel. 

To burden the International Court of Justice with such a false and misleading allegation undermines the very integrity of the Genocide Convention and is both an insult to the Court, to the countries whose judges serve on the Court’s bench, as well as to the United Nations as a whole. 

The writer served as the legal adviser to Israel’s Foreign Ministry and as ambassador to Canada. He presently heads the international law program at the Jerusalem Center for Public Affairs. He has been involved in negotiations with the Palestinians on the peace process agreements with Israel, as well as in various issues involving the International Court of Justice and the International Criminal Court.