Irwin Cotler

12 ways South Africa weaponized the Genocide Convention against Israel

Saturday January 27th is International Holocaust Remembrance Day, where we mark the 75th anniversary of the death camp Auschwitz, the most brutal extermination camp of the 20th century — of remembrance and reminder of genocidal horrors too terrible to be believed but not too terrible to have happened, and in the aftermath of which the United Nations adopted the Genocide Convention.

As it happens, the International Court of Justice will issue its judgment on Friday, January 26th on South Africa’s request for provisional measures – including ordering Israel to end its military action – the whole anchored in South Africa’s indictment of Israel as intent upon, and engaged in, acts of genocide.

The actions by South Africa — in its Orwellian inversion of fact and law and weaponization of the Genocide Convention — constitute a repudiation of South Africa’s proud legacy. Nelson Mandela endured 27 years in a South African prison and emerged not only to preside over the dismantling of South African apartheid, but to become the Founding Father of a democratic, independent, non-racial South Africa. Moreover, as Mandela put it, his proudest legacy was the establishment of an independent Constitutional Court – with Arthur Chaskelson, with whom I worked closely over the years, as its first president; the enactment of a comprehensive South African bill of rights; and a compelling Constitutional rights-based equality-anchored jurisprudence.

Regrettably, South Africa’s application before the Court is not only “meritless,” but it is fatally flawed – tainted at the core – and entirely unfounded.

What follows are 12 illustrations of South Africa’s weaponization of the Genocide Convention and its accompanying inversion of fact, law, and justice.

1 – South Africa purports to be representing and affirming our common humanity, which would presuppose Israel’s legitimacy as a state with an inherent right to self-defense under the UN Charter. Yet South Africa’s Application impugns Israel’s legitimacy – characterizes its founding as an “apartheid state” – while engaging in delegitimizing and demonizing tropes. South Africa’s Application appears more as a proxy for Hamas than an Applicant on behalf of our common humanity.

2 – The International Court of Justice’s jurisdiction presupposes the existence of a dispute under the Genocide Convention between the Applicant South Africa and  Respondent Israel. For there to be a “dispute,” the Convention requires that the Respondent, Israel, be engaged in the matter of the “dispute” – that it be given a right of reply – before proceedings are instituted. Yet as the record shows, Israel was not engaged as a party to the dispute, not given a right to reply, and was effectively denied “due process” and the “right to a hearing” as mandated by the Genocide Convention itself. Indeed, South Africa not only deprived Israel of a hearing to determine whether a “dispute” existed, but it falsely misrepresented this absence to the Court. In a word, in the absence of a “dispute” which South Africa misrepresented as existing, the International Court of Justice lacks jurisdiction to adjudicate to begin with. This alone warrants the case to be dismissed.

3 – The exercise of jurisdiction in the matter of the Genocide Convention presupposes not only a finding of Israeli “acts of Genocide” but the requisite “intent to commit Genocide”. In the absence of such intent, there is no case to proceed with, and no case to answer. In South Africa’s Application before the Court, it not only ignores the overriding evidence of Hamas’s genocidal intent, not only ignores even Hamas’s genocidal acts, but imputes such genocidal intent – and genocidal acts – to Israel, yet another illustration of many of turning fact and law on its head.

4 – South Africa’s detailed 84-page Application is, simply put, an Orwellian inversion of fact and law, but a weaponization of the Genocide Convention. It makes no reference to the Black Sabbath of October 7th. No reference to Hamas’s criminal aggression and invasion accompanied by war crimes and crimes against humanity. No reference to the indiscriminate firing of rockets targeting a civilian population, itself constituting a crime against humanity; and no reference to the mass murder, rape, torture, pillaging, and abduction of hostages still held in captivity.

5 – Astonishingly, there is no reference at all to Hamas – not only as a terrorist organization, but as a terrorist military government, let alone its ongoing acts of Genocide on October 7th.

6 – In a word, there’s no reference in the entire South African submission to Hamas as an antisemitic, genocidal, terrorist government, not because I say so, but because Hamas says so in their Founding Charter of 1988 and since.

Simply put – Hamas has not only engaged in acts constitutive of Genocide on October 7th, but it has been engaging in an ongoing incitement to Genocide since 1988, which is a stand-alone breach of the Genocide Convention. Yet it is airbrushed away in South Africa’s application before the Court.

7 – None of these genocidal acts by Hamas – let alone its genocidal intent – absolve Israel of its obligations under the Genocide Convention and under international law. But it provides a context – in fact and law – that the Court ignores at its peril. First, that it is Hamas rather than Israel that has been engaged systematically in such acts of genocide; that these genocidal acts have been underpinned by an annihilationist rhetoric and genocidal intent to “cleanse Palestine of the filth of the Jews”; that Hamas has committed itself to commit the genocidal acts of October 7th “again and again and again.”

8 – South Africa’s Application not only denies Israel’s inherent right – and obligation – to self-defense, but its Application for “Provisional Measures” seeks to deny Israel its right and obligation to protect itself from Hamas’s proclaimed genocidal intent and genocidal acts. In a word, it seeks to not only weaponize the Genocide Convention, but the Court’s jurisdiction, in denying Israel its fundamental rights to self-defense in International Law.

9 – If there are to be “Provisional Measures,” they should be directed at South Africa and not Israel. Simply put, South Africa has not only been acting as a proxy for Hamas before the Court. It has sanitized Hamas’s genocidal acts; it has ignored Hamas’s genocidal intent; and it has enjoyed close relations with this genocidal terrorist organization – as expressing solidarity with it – and has hosted members of Hamas and celebrated its relationship with it, even, astonishingly so, after Hamas’s genocidal acts of October 7th.

10 – In yet another Orwellian inversion of fact and law, South Africa described the suffering of Gazans as “unparalleled and unprecedented.” No one can question that Gazans have suffered, and every civilian death, whether Jew or Palestinian, is a tragedy. But what is unparalleled and unprecedented is Hamas’s use of civilians as human shields; of Hamas’s conversion of Gaza’s civilian infrastructure– hospitals, schools, mosques, UN facilities – into a composite civilian human shield.

Accordingly, while Israel has sought to minimize civilian casualties, Hamas has sought to maximize such casualties, thereby inducing and maximizing the very human suffering that it attributes to Israel.

11 – in the face of such ongoing genocidal acts – and Hamas’s ongoing intent to commit Genocide by its own acknowledgement, Israel has not only the inherent right but the responsibility to defend tis people. Yet South Africa throughout its Application converts and inverts Israel’s exercise of its responsibilities to an imputed genocidal intent.

12 – Finally, the conditions for “Provisional Measures” are not only unwarranted in that it is Hamas and not Israel that is committing genocidal acts with the requisite genocidal intent; not only prejudicial in that they deny Israel’s right and obligation to self-defence, but it would leave Hamas free to continue to carry out its genocidal actions anchored in its own stated intention to do so. The Court, by its own action, will be incentivizing further genocidal acts by a genocidal terrorist organization. That is an utter abuse of the Court’s jurisdiction – let alone the absence of any jurisdiction to begin with.

About the Author
Irwin Cotler is Emeritus Professor of Law at McGill University, International Chair of the Raoul Wallenberg Center for Human Rights, former Minister of Justice and Attorney-General of Canada, longtime parliamentarian, and International Legal Counsel to Prisoners of Conscience. He is Canada’s first Special Envoy for Preserving Holocaust Remembrance and Combatting Antisemitism.
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