South Africa tarnishes legacy of combatting racism with ICJ case

The Supreme Court of Canada, in upholding the constitutionality of legislation prohibiting incitement to genocide, proclaimed that “the Holocaust did not begin in the gas chambers – it began with words.” Likewise, October 7th did not begin with the criminal invasion and mass atrocities of Hamas terrorists, nor even with the indiscriminate launching of rockets – each one constituting a double war crime – that preceded the horrific Hamas assaults. October 7th began with words.

Dating back to its founding charter in 1988, Hamas has consistently and openly incited genocide against Israelis and the Jewish people. So has its patron, the Islamic Republic of Iran, and Iran’s other terrorist proxies, including Hezbollah in Lebanon and Ansar Allah (the Houthis) in Yemen – all of whom call for the destruction of Israel and the murder of Jews. Indeed, the 21st century began with Iranian Ayatollah Khamenei declaring this genocidal intent.

This ongoing incitement to genocide is what laid the groundwork for the heinous crimes that took place on October 7th – horrors too terrible to be believed, but not too terrible to have happened – the brutal murder of over 1,200 people, men, women, children, and elderly alike; the systematic rape and gruesome torture of women, which international tribunals have determined are alone evidence of intent to genocide; the targeting of ambulances and medics; the maiming and mutilation of the vulnerable; the desecration and parading of corpses; and the violent hostage-taking of innocents, an unconscionable crime that continues today, almost 100 days later. These acts constituted war crimes, crimes against humanity, and, in the context of the decades of incitement that preceded them, acts of genocide.

Today, the International Court of Justice (ICJ) is convening to hear an application by South Africa that accuses Israel of breaching the Genocide Convention, due to its conduct in responding to the October 7th Hamas invasion. By placing Israel in the docket of the accused rather than Hamas, this application inverts history and reality, turning fact and law on its head.

Israel’s actions in Gaza are impossible to reconcile with the intention to commit genocide – a necessary element of the crime. Israel consistently seeks to minimize harm to civilians – using measures including leaflets, messages, and phone calls to urge civilians to evacuate targeted areas, creating humanitarian zones and corridors, and facilitating humanitarian aid. Throughout, Israel’s legal gatekeepers monitor and oversee Israeli military policy and conduct.

On the other hand, Hamas embeds itself within civilian structures, places its command and control centres beneath hospitals, and fires rockets from within schools and mosques. Its combatants wear civilian clothes to deliberately camouflage themselves among the civilian population. It builds entrances to massive terror tunnels under children’s beds, and hides within that vast tunnel network – built with the help of millions of dollars of foreign aid – while denying access to civilians. The result of this is that Hamas not only holds 130 innocent Israelis hostage, but over two million Gazans. Indeed, as part of its pattern of domestic repression, Hamas has repeatedly murdered Gazan civilians who have sought to flee combat zones. 

In a word, Hamas uses its own people as human shields – more than in any armed  conflict in human history per capita. Yet astonishingly, South Africa’s long and detailed application makes no reference to this horrific policy and practice, whose effect, let alone its intent, is to maximize Palestinian death and destruction. While Israel seeks to minimize civilian casualties, Hamas, in its macabre cruelty, seeks to maximize them. Hamas orchestrates the victimization of Palestinians, then instrumentalizes that victimization to demonize Israel – leading to the weaponization of the genocide libel, and the corresponding incentivization of antisemitism.

By launching a meritless proceeding against Israel for the crimes of genocide and incitement to genocide, South Africa provides protective cover to Hamas and its related Iranian terrorist proxies, who themselves are the ones guilty of those crimes – a classic case study of the false accusation in the mirror. In doing so, South Africa’s application inverts reality and subverts the rules-based international order. This subversion is dangerous, and deeply concerning, following the pattern set by Vladimir Putin’s Russia – with President Putin using false accusations of genocide in his “Nazification” libel as the pretext for launching his criminal aggression against Ukraine. 

Indeed, South Africa’s cynical weaponization of international law was clearly demonstrated when, on January 4th, less than a week after launching the ICJ proceedings against Israel, South African President Ramaphosa welcomed the leader of the Rapid Support Forces (RSF) to his home in Pretoria. The RSF, complicit in the Darfur genocide 20 years ago, is once again perpetrating mass crimes against humanity in Sudan, including the massacre of innocent civilians and the systematic use of sexual violence. Recently, over 100 legal experts warned that Sudan sits on the precipice of another genocide. 

Genocide, the “crime of crimes,” constitutes the most abhorrent of human acts. The 153 state parties to the Genocide Convention have both a moral and a legal imperative to take action to combat genocide – and incitement to genocide – wherever they may occur. But, rather than upholding this legal obligation, South Africa’s application at the ICJ undermines it, inverting both fact and law, and threatening the international rules-based order by doing so. As was most recently demonstrated by the Russian invasion of Ukraine, this inversion is most dangerous, and it is crucial that the community of democracies is steadfast in opposing it. 

In 1994, Nelson Mandela became the first President of a newly democratic, egalitarian, and non-racial South Africa. Mandela, while a strong advocate for Palestinian rights and statehood, also affirmed the right of Israel to peace and security. It is tragically ironic that 30 years later, in 2024, post-apartheid South Africa is weaponizing the Genocide Convention against the Jewish state as it defends itself against the racist, genocidal, terrorist Hamas regime. In engaging in this Orwellian inversion, South Africa tarnishes its legacy of combatting racism and injustice. In a word, South Africa is on the wrong side of history.

Irwin Cotler is the International Chair of the Raoul Wallenberg Centre for Human Rights, the former Minister of Justice and Attorney General of Canada, and was Canada’s first Special Envoy on Preserving Holocaust Remembrance and Combatting Antisemitism. A leader in the anti-apartheid movement, he was arrested in South Africa in 1981 for giving a speech titled “If Sharansky, Why Not Mandela.”

Noah Lew is Special Advisor to the Honourable Irwin Cotler and a Director of the Raoul Wallenberg Centre for Human Rights.