Today Thursday January 11, the International Court of Justice (ICJ) began hearing a complaint brought by the Republic of South Africa against the State of Israel alleging that Israel is committing genocide in Gaza. On Friday, Israel will present its defense. Malaysia and the Kingdom of Jordan are also supporting the complaint lodged by South Africa.
To those of us who are following the war closely, the complaints of genocide, which we have seen often on protest signs since the beginning of the war, are deeply hurtful and enraging. Accusing Israel of genocide when they are doing no such thing and when the other side did commit an act of genocide on October 7, is a form of Holocaust inversion, in which Israel is falsely accused of doing what the Nazis did to the Jews.
Indeed, the genocide convention was adopted in 1946 in response to the world’s revulsion at what Germany had done to the Jews in the Shoah. It’s measures are meant to criminalize the sort of things that the Nazis did when they murdered six million European Jews.
The crime of genocide is defined in Article 2 of the Convention:
ARTICLE II In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
The language of the itemized list is broad enough that many of the acts done in war might seem to qualify as genocide, but that is not its meaning. The introductory language requires that these acts be done with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such.
Thus by charging Israel with genocide, those bringing the charge are saying that Israel is doing what it is doing in Gaza not in its own defense, not to destroy Hamas and their collaborators, but out of a deliberate desire to destroy the Palestinian people, in whole or in part as such.
Indeed many pro-Hamas spokespeople and haters of Israel have been articulating this very claim since the first days of the war. This is not a war on Hamas, they say. It is a war on the Palestinian people.
What is their evidence? “Palestinian civilians are dying”, they say. This alone is sufficient proof for them. But who do they rely on for this evidence? It is Hamas, the very organization which massacred, raped, tortured and burned to death over 1200 Israelis systematically and ruthlessly, and which abducted over 240 to Gaza.
They should know that many of those being killed in Gaza are the perpetrators of the October 7 atrocities. They should know that likely thousands of Gazans have been killed not by Israel, but by the rockets which Hamas and Palestinian Islamic Jihad launch at Israel which fall short in Gaza.
We know that somewhere between twelve hundred and twenty four hundred rockets have fallen short. In the first week of the war, a crowd of civilians was hit by an errant PIJ rocket in the parking lot of a hospital. Within minutes the very Hamas health ministry which the world relies on for figures on the deaths of people in Gaza had announced that 500 people had been killed at the hospital by an Israeli air strike.
This false announcement fueled the first wave of angry demonstrations around the world and the debunking of the report did nothing to quell the anger. The Canadian and global media reporting on the war largely treat the Hamas numbers as reliable, and the demonstrators march week after week accusing Israel of genocide. I wrote back in October at the feeling of outrage so many of us feel when it is Israel and not Hamas that is the target of accusations of genocide in the article linked just below.
We’ve heard the accusation of genocide so often now, that the initial feeling of outrage has turned into a kind of numbness. And now we have the same outrageous claims put forward in a legal proceeding, as though it’s a reasonable, even a compelling claim.
Reading the language of Article II we can see that even if the number of deaths in Gaza is accurate, the events don’t meet the definition of genocide unless Israel is doing it with intent to destroy part of the Palestinian people as such. How can anyone claim this when the war was triggered by the October 7 atrocities and Israel undertook it with the declared intent of destroying the perpetrators? How can anyone look at the billions of dollars of infrastructure expressly designed to put civilians between Israeli forces and Hamas criminals and claim that Israel is deliberately targeting civilians?
In yesterday’s Globe and Mail, former Canadian Supreme Court Judge Rosalie Abela denounced the South African charges against Israel in an eloquent and angry article. I can’t link it here because it’s behind the Globe and Mail paywall. Here is an excerpt:
This is an insult to what genocide means, an insult to the perception of the ability of international courts to retain their legitimacy and transcend global politics, and an insult to the memory of all of those on whose behalf the Genocide Convention was created.
She goes on to indicate that there will be a reckoning for any acts committed by Israel that break international law. She writes:
Israel’s Supreme Court has been the global judicial leader in defining the requisite legalities; how a state can address, let alone eradicate the threats to its security and survival when it is confronting an adversary like Hamas, which ruthlessly uses innocent civilians as human shields and embeds itself in civilian public spaces such as schools, hospitals and mosques; what measures justify the search for kidnapped civilians; and the consequential harm.
She goes on to point out that the horrors of war were the reason that international conventions were adopted, in an effort to reduce the harm and define what kind of acts are permitted and which ones are forbidden. She concludes by saying:
Seventy-five years after the birth of the Genocide Convention and of the state of Israel, both of which rose from the ashes of Auschwitz, we find genocide and rape and torture in full and flagrant flight in too many parts of the world. Yet the country that finds itself as the designated avatar of genocide is Israel. As a lawyer, I find it shameful; as a Jew, I find it heartbreaking; and as the child of Holocaust survivors, I find it unconscionable.
This week in Israel Anthony Blinken denounced South Africa for bringing the case, saying the claim was “meritless”. In this article from Forbes he is quoted as saying the charges are “personally galling”, given the threats of genocide being directed against Jews by Hamas and Hezbollah and “distracts the world” from the need to find a resolution to the situation that led to the war in Gaza, and to prevent the contract from widening.
I look forward with cautious hope that the International Court of Justice will look at the facts and the law and dismiss the case against Israel, but even the bringing of the charge has done a lot of harm, by seeming to justify the uninformed and hateful rhetoric being unleashed against Israel by its enemies.
Today is the 97th day of the war that was unleashed by the atrocities of October 7. On Tuesday, Israel uncovered a huge rocket factory in Central Gaza and took reporters through it before tragically losing six soldiers killed and 14 wounded in an explosion at the same facility. A total of 9 Israelis died that day, which made it one of the worst days of the war so far.
Let’s all continue to pray for the success and wellbeing of the Israeli soldiers.