South Africa’s case against Israel: Both weak and dangerous - opinion

South Africa accused Israel of “genocide” at the International Court of Justice (ICJ) at the Hague earlier this month, and Israel responded with its legal defense the following day.

United States Secretary of State Antony Blinken called the claim of genocide “meritless” while other nations, such as Germany and the United Kingdom, described the claim as “unjustified” and “wrong.” 

The IDF is extraordinarily careful to protect civilians, whereas Hamas (which is not subject to the ICJ) committed actual acts of genocide against Israelis as part of the October 7 massacre, a cruel irony that Blinken called “particularly galling.”

However, the weakness of South Africa’s legal case is of little comfort because their key objective is not to actually win the lawsuit: It is something far more dangerous.

The dangerous implications of South Africa's legal case

The Convention on the Prevention and Punishment of the Crime of Genocide defines “genocide ” as the intent to destroy a group coupled with specific acts in furtherance of that intent. Accordingly, Hamas’s acts on October 7 legally constitute a “genocide” against Israel and the Jewish people. 

By contrast, Israel’s self-defense does not remotely resemble genocide, given the IDF’s herculean efforts to protect civilians in Gaza, and the incredibly small casualty numbers compared to other conflicts in the region, such as in Syria and Yemen. The Hamas-authored casualty figures that South Africa presented in court include combatants, Hamas’s use of human shields, and other inaccuracies, further weakening its already flimsy case.

Accordingly, South Africa, which has close alliances with Russia, Iran, and Hamas, has focused its initial efforts not on winning the case but instead on attempting to secure an emergency order for a ceasefire, which could come as soon as this week or next. 

Yet the meaning of “ceasefire” in this case is deceptive. The ICJ does not have jurisdiction over Hamas as it does over Israel, because the internationally designated terror group is not a signatory to the convention. Therefore, the only kind of “ceasefire” the court can order would be one-sided: Israel ceases... while Hamas fires.

During such a “ceasefire,” 136 Israeli hostages would remain in Hamas captivity, enduring (according to international intelligence) ongoing torture and rape; Hamas, which has pledged to repeat the October 7 massacre, would be free to re-arm, regroup, and carry out further attacks; and Israel would be legally prohibited from responding, even in self-defense. In effect, Israel would become “army-less.”  

To make its case, South Africa’s lawyers quoted a small niche of extreme outlier Israeli politicians and soldiers who made statements that, when viewed out of context, may be interpreted as “intent” to commit genocide. Israel responded that none of these statements constitute government policy, and those who made them are not in decision-making positions.

Indeed, a democracy with free speech will (and in fact should) produce a wide range of opinions, including ones counter to government policy and mainstream opinion. However, in order to secure a ceasefire order, South Africa need not show that these statements prove genocide, but only that they demonstrate the possibility of genocide. 

The ICJ’s panel of 15 judges include representatives from Russia, China, Lebanon, and other countries likely to be unfriendly to Israel, which further increases the likelihood that the court may indeed order a one-sided and deadly “ceasefire.”

If carried out to its draconian conclusion, South Africa’s cunning ceasefire strategy, coupled with Hamas’s declared commitment to carry out further massacres, have the potential to produce an entire series of October 7-style massacres, with Israel prohibited from acting in self-defense – all with the cruel and ironic support of the very international laws that are supposedly intended to prevent such atrocities.

THIS BEGS the question: What if Israel simply disregards such an ICJ order in favor of defending its very survival? 

In this case, the court could recommend that the UN Security Council enforce crippling sanctions – not BDS (Boycott, Divest and Sanction) style sanctions which are primarily PR stunts, but the kind of nation-eviscerating sanctions imposed in places like North Korea, Yugoslavia, and (ironically) apartheid-era South Africa. 

Such measures could include cutting Israel off from energy markets, food supply, global trade, global financial systems, international travel, and more. Parallel procedures in other international bodies could produce international arrest warrants: not just for Israeli leadership but even for current and former IDF soldiers. (Norway, for example, has already begun steps in this direction.)

This apocalyptic-sounding consequence begs yet another question: Wouldn’t the United States veto any such resolution at the Security Council? The answer is not as certain as it seems. Based on Secretary Blinken’s statements, America would almost certainly veto a resolution that condemns Israel for genocide. 

However, if Israel were to violate a direct court order for a ceasefire, coupled with domestic and international public pressure and an upcoming US election, the answer would become less clear. At the very least, ICJ enforcement measures constitute a risk that Israel must take seriously, even with likely US support.

These events are a carefully calculated attempt by Hamas, via its allies, to defeat Israel militarily by shutting down the IDF’s freedom of action. In doing so, Hamas and South Africa threaten the very institutions of international law. 

Israel is subject to the ICJ because it signed the convention, which did nothing to protect Israel on October 7, whereas Hamas is able to act with impunity precisely because it has not signed the convention.

Long term, this perversion of international law incentivizes all nations to withdraw from global institutions for their own protection, thus threatening the continued existence of international law itself.

Without international law and institutions, it would be more difficult to act against dangers such as Russia’s invasion of Ukraine, Iran’s pursuit of nuclear weapons, Myanmar’s Rohingya genocide, and more.

In short: Israel is fighting for its survival on two fronts: one is military, the other is legal. An Israeli victory on both fronts is absolutely critical, not only for the safety of Israel, but also for the continued existence of international law and the long-term security of the entire free world.

The writer is an expert in international law, and a lecturer at Reichman and Bar-Ilan universities, as well as CEO of RealityCheck, a nonprofit NGO dedicated to clarifying global conversations with verifiable data. You can follow him on Instagram: @danielspeaksup. Check out the  website: RealityCheckResearch.org.