'The country it loathes most': South Africa's struggle to find evidence against Israel - opinion

Ten months ago, South Africa sued Israel at the International Criminal of Justice (ICJ) for the alleged crime of genocide in Gaza in what is shaping up to be one of the most extraordinary and unusual legal cases in recent history.

Extraordinary, as Israel was born in the ashes of the Nazi Holocaust – the mass-murdering event for which the word “genocide” was coined, and unusual as South Africa is now demanding an extension on the October 28 deadline to submit its final cache of evidence. Plaintiffs nearly always work to expedite courtroom proceedings, not to slow them down.

The request for an extension signals that South Africa has failed to unearth enough legally compelling evidence to secure a courtroom victory. It also accentuates the need to reexamine the evidence thus far presented and to understand why South Africa, a country on a different continent with a tiny Muslim population, is so determined to see Israel charged with “the crime of all crimes.”

South Africa claims Israel has repeatedly breached the United Nations-approved Convention on the Prevention and Punishment of the Crime of Genocide (November 9, 1948) in its counter-invasion of Gaza sparked by Hamas’ October 7 orgy of blood, rape, and fire that resulted in the greatest loss of Jewish life since the Holocaust.

Adopted verbatim by the ICJ, the convention defines “genocide” as the carrying out one or more of five specific war crimes with the “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.”

The first is killing people simply because they are members of a group. The second is “causing serious bodily or mental harm to members of the group,” a war crime anti-Israel academics and legal experts are now using to describe Israel’s retaliatory pager attacks against terror group Hezbollah, alleging Israel is expanding its genocide to Lebanon.

The remaining three war crimes listed in the convention include inflicting “conditions of life calculated to bring about its physical destruction,” preventing births, and abducting children.

Specifically, South Africa alleged Israel deliberately killed 23,570 Gazans that it sourced from a daily death toll released by Hamas’s  Health Ministry. The figure has since been revised by Hamas to 41,000.

Hamas's fraudulent numbers

Every civilian killed in wartime is a tragedy. However, Abraham Wyner, a statistics professor at the University of Pennsylvania, is one of many experts certain the figure is fake. Hamas releases “fake daily numbers that vary too little because they do not have a clear understanding of the behavior of naturally occurring numbers,” Wynder wrote in Tablet, an online Jewish magazine.

The figure, he alleges, blames every death in Gaza since October 7 on the Israel Defense Forces, including natural deaths, which the CIA World Factbook puts at 2.9% annually, about 6,200 people; the well-documented assassination by Hamas of alleged looters, homosexuals, political rivals, and peaceniks such as Islam Hejazy, head of the NGO HEAL Palestine, whose car was sprayed with 90 bullets in September for refusing to handover to Hamas money it raised to help Gazans.

Hamas’ figure also includes deaths caused by friendly fire. According to the IDF, one in five of the 9,100 rockets fired at Israel since October 7 landed inside Gaza, as occurred on October 17 when a rocket launched by rival Palestinian terror group Islamic Jihad hit a car park at the Al-Ahli Hospital, and Hamas instantly claimed 500 people had been killed.

Poignantly, Hamas’ death count makes no distinction between non-combatants and combatants, the latter of whom cannot be included in a tally for alleged genocide. The IDF puts the number of Hamas soldiers killed during its campaign at 17,000,

If accepted as fact by the court, this evidence reduces the ratio of non-combatant to combatant deaths in Gaza to close to 1:2. This is far lower than the average of 1:9 deaths in modern warfare.

South Africa also alleges Israel has imposed measures preventing Palestinian births through the destruction of “essential health services.” Yet, according to the NGO Save the Children, 5,522 babies have been born in Gaza every month since October 7. This is even higher than the pre-war annual birth rate in Gaza of 4,783 babies per month. And while the IDF has bombed and raided several Gazan hospitals, in every instance it has released evidence showing Hamas had built tunnels and command centers under hospitals, rendering them legitimate military targets.

Finally, South Africa alleges Israel “intended” to commit genocide in Gaza, citing quotes from high-ranking Israeli officials like Defense Minister Yoav Gallant (“We are fighting human animals and we are acting accordingly,” retired Maj. Gen. Giora Eiland (“The Israeli state has no choice but to turn Gaza into a place that is temporarily or permanently impossible to live in,”) and President Isaac Herzog (“There are no innocent civilians in Gaza”).

 Israeli Holocaust historian Omer Bartov has warned that such statements “could easily be construed as indicating a genocidal intent.” However, they do not prove genocide has happened, meaning that a guilty ruling based on evidence South Africa has presented, which also includes Israeli flags adorning wrecked buildings in Gaza, would represent a significant departure in legal precedent.

From Myanmar to East Timor, Syria, and Iraq, dozens of genocidal events that ticked all five boxes have occurred in the 76 years that have passed since the genocide convention was introduced. But the United Nations and its courts have only officially recognized three as genocide: the slaughter and starvation of three million Cambodians by the Khmer Rouge; the killing of an estimated 800,000 Tutsi by the Hutus in Rwanda; and the extermination of 8,000 Bosnian Muslim boys and men by Bosnian Serb forces in Srebrenica.

The lackluster record is the result of a lack of political will. But when it comes to Israel, South Africa has will in spades. It has long drawn parallels between its historic fight against apartheid and the Palestinian cause  – and is seeking payback over ties the Israeli military shared with South Africa’s apartheid-era regime.  

Is South Africa enabling genocide?

Rather than a harbinger of global justice, the ANC, since assuming office in 1994, has become an enabler of genocide. According to the US Embassy in South Africa, it has covertly provided arms to Russia for its invasion of Ukraine, which has been classified as genocide by Washington DC-based watchdog group Genocide Watch.

In 2015, the ANC ignored an ICJ arrest warrant against then-Sudanese president Omar al-Bashir, who oversaw the genocide of 200,000-400,00 people in Darfur in the early 2000s during a state visit to South Africa.

Today, Sudan is the site of the world’s greatest humanitarian disaster. More than 10 million people have been displaced, 5.2 million women and children are starving, and sexual violence against women and girls has reached epidemic levels, according to Médecins Sans Frontières.

Yet the ANC still refuses to lift an eyebrow. 

In the same month that ANC prosecutors took Israel to the world court, a beaming South African President Cyril Ramaphosa posed for photos at his official residence in Pretoria with Mohamed Hamdan Dagalo, a Sudanese general whose militia last year killed 15,000 people belonging to the Masalit ethnic minority and who has also been implicated in the Darfur genocide.

The only way to interpret it, says Johannesburg-based think-tank the Brenthurst Foundation, is that South Africa “has countries and leaders that it likes and those that it loathes.” And Israel, the world’s only Jewish majority, is the country it loathes most.

The writer is a freelance journalist who has reported from conflict zones in Israel, Ukraine, PNG, and East Timor.