South Africa is highly cognisant of the fact that acts of genocide are distinct from other violations of international law sanctioned or perpetrated by the Israeli government and military in Gaza — including intentionally directing attacks against the civilian population, civilian objects and buildings dedicated to religion, education, art, science, historic monuments, hospitals, and places where the sick and wounded are collected; torture; the starvation of civilians as a method of warfare; and other war crimes and crimes against humanity — though there is often a close connection between all such acts. South Africa is also aware that acts of genocide inevitably form part of a continuum — as Raphael Lemkin who coined the term ‘genocide’ himself recognised. For this reason it is important to place the acts of genocide in the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-yearlong belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza, including the serious and ongoing violations of international law associated there,,,with, including grave breaches of the Fourth Geneva Convention, and other war crimes and crimes against humanity. However, when referring in this Application to acts and omissions by Israel which are capable of amounting to other violations of international law, South Africa’s case is that those acts and omissions are genocidal in character, as they are committed with the requisite specific intent (dolus specialis) to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group.
Application Instituting Proceedings (para. 2).
Relying on the Genocide Convention, South Africa in its Application Instituting Proceedings (SA Application) to the International Court of Justice (ICJ) seeks a finding of the existence of genocidal intent, and injunctive relief as provisional measures – an order requiring Israel to cease or limit its military operations in Gaza. I expected a cogent, balanced, and persuasive submission – to perhaps even be convinced since I’ve not seen evidence from which to conclude the existence of the requisite dolus specialis (genocidal intent). Disappointingly, the SA Application ignores or glosses over critical context as it relates to Israel’s right of self-defense – relevant to objectively assessing the SA Application. The legal analysis is also less than impressive. Suffice it to say, the facts as marshalled, and the arguments as crafted in the SA Application have not nudged me one iota towards the more vocal and ostensibly conformist assessment. I remain unmoved that a genocide, strictly in the legal sense, is ongoing in Gaza, just as I remain unpersuaded that the ICJ can order provisional measures which may infringe on Israel’s right of self-defense. Hence this post.
You cannot see a news clip, a commentary, or a reference to the events in the Israel-Gaza war without hearing or seeing definitive claims that Israel has, is, and will continue to commit genocide against the Palestinians in Gaza (elsewhere is also mentioned, but let’s stick to the events in Gaza). The images and narratives of human suffering are as undeniable as they are bone-chilling. The “G” word is used by all – from the most sophisticated politicians to the average Jane and Joe on the street, to NGOs, to academics and students, to international lawyers. The images tell thousands of stories that drive a seemingly crystalized overarching narrative militating acceptance – as an undisputed article of faith –of an ongoing genocide. But is it so? No.
Horrific as the human suffering is, and as appalling as the unnecessary loss of innocent Palestinian life is, and as uncouth as some of the official comments from some Israeli ministers and Israeli Defense Force (IDF) officers and others are – promoting if not inciting ethnic cleansing and the relocation of the Gazan Palestinians – Israel has not and is not committing genocide. Not that the risk that the events could evolve into acts of genocide should not be taken seriously (e.g., see Declaration of William A. Schabas and his interview refenced below in the aside).
Crimes are generally committed during war. Without prejudging, violations of international humanitarian law are seemingly occurring in Gaza at an alarming rate. That should not come as a surprise, given the nature and location and manner of the war. The high volume of innocent civilian casualties suggests indiscriminate and disproportional targeting by the IDF. And then there is also the general (mal)treatment of civilians by denying them basic needs for survival, dispossessing them of their homes, their safety, their wellbeing. Recognizing that all the facts need to be carefully examined before drawing legal conclusions, as things appear, the Israeli Government and IDF seem to be engaged in policy-driven acts in breach of the laws of war. So, yes, crimes appear to have occurred, and will continue to occur until the war comes to an end. Claiming genocide, however, is more than a stretch – at least for now.
Israel’s overreach in prosecuting the war seems obvious if we go by what we see in the media, and without the benefit of knowing what the IDF knows and the challenges it faces. That Israeli Officials and IDF officers have been hubristic from the outset in their ability to achieve the stated goal of permanently eradicating Hamas, Palestinian Islamic Jihad, and other terrorists is rather evident (the hydra paradox discussed below). That dangerously irresponsible remarks are being made calling for the permanent removal of Gazan Palestinians and expanding Israel’s boarders to include Gaza is repugnant. That careless and reckless attacks on legitimate targets with a degree of undignified callousness that transgresses the norms of proportionality and distinction is arguably irrefutable. That inhumane treatment of civilians, collective punishment, appalling loss of innocent life, and incalculable and irrecoverable traumatization are a daily occurrence is beyond dispute. Nonetheless, as disquieting and as incriminating as the sum of all of this may seem or be, it falls short of the very high standard requisite for establishing genocide (or incitement to genocide): the existence of genocidal intent.
Before delving into some of the specifics of the SA Application, two uncontested facts must be stressed. First, the events of 7 October 2023 were unprovoked. Hamas and Palestinian Islamic Jihad crossed into Israel, slaughtering, raping, and kidnapping innocent civilians. Second, Israel’s right of self-defense is guaranteed under Article 51 of the United Nations Charter. How Israel decides to defend itself is up to Israel – constrained only by the laws of war. The ICJ has jurisdiction to order provisional measures, but not at the expense of Israel’s security and right of self-defense. Thus, the ICJ’s consideration of whether Israel is engaging in genocidal acts as claimed, or its deliberations on injunctive relief (ordering Israel to cease or restrain its self-defense actions) cannot be made in a factual and contextual vacuum. For more on the ICJ’s authority to order provisional measures as argued in the SA Application vis a vis Israel’s inherent right of self-defense, see two excellently presented divergent perspectives: Jesse Lempel here and Marc Weller here.
Depending on how facts are aligned and presented, how direct (but especially circumstantial) evidence is threaded and weaved, and how the law can be stretched or contorted within acceptable margins of credulity and validity, a colorable pro or con argument can be made in just about any instance. And in the instance of the SA Application, while it highlights the urgent need for the alleviation of human suffering resulting from conduct and policies by the Israeli Government and IDF that risk evolving into crimes that could fall within the contours of the 1948 Genocide Convention, it falls short in establishing the existence of genocidal intent.
South Africa cherry-picks through the historical facts, serving the ICJ a selective one-sided version – looking at the events in a vacuum as if actions in Gaza and elsewhere by Israel and the IDF were unprovoked. In arguing the existence of genocidal intent, the SA Application heavily delves into the historical events of Gaza since “acts of genocide inevitably form part of a continuum.” The aim is to show, among other things, that there is a long-standing and sustained Israeli policy of making life unbearable for Gazan Palestinians, placing their survival at risk were they to remain. Put differently, South Africa seems to argue that Israel – through its official policies and sanctioned actions of the IDF – has, for decades, been implementing a slow-burning genocidal policy.
Strikingly, save for two and a half lines in paragraph 1, the events of 7 October are covered in only three of the remaining 147 paragraphs. More noticeably, other than voicing a generic condemnation, the events are glossed over with scant specifics and with no acknowledgement or appreciation of how those events – the terrorization, the killings, the sexual violence, the kidnapping – impacted the psyche of the Israeli population. It is as if these facts may be of no significance in assessing the actions taken by the Israeli Government and IDF.
Unless the events, trauma, fear, pain, and perceived existential threat experienced by the Israelis on 7 October are considered, it is fanciful, indeed deceitful, to claim an appreciation let alone an understanding of Isarel’s (over)reaction – especially when ascribing genocidal intent. It is not about tu quoque; it is about context – viewing the events of 7 October from Israel’s perspective, fully appreciating its history, and the threats and attacks it faces from some of its neighbors and other states funding terrorists as their proxies with an avowed aim to eliminate Israel’s existence. This appreciation is not an excuse for any overreach in prosecuting the war against Hamas and Palestinian Islamic Jihad, or for the collective misery inflicted on all Gazans. It informs and assists in assessing the direct and circumstantial evidence for determining whether mass atrocity crimes, and in particular, genocide, are being committed.
What also informs and assists in assessing how Israel is exercising its right of self-defense is examining how Hamas and Palestinian Islamic Jihad have deliberately and calculatedly turned all Gazan Palestinians and virtually all protected areas (schools, hospitals, mosques, churches) into unlawful shields. Urban warfare is ugly and dangerous. Innocent civilians and protected areas generally are in the way. The IDF cannot be expected to not respond to incoming attacks, just as Israel cannot be expected not to prosecute the war in Gaza simply because Hamas and Palestinian Islamic Jihad (and others) have embedded themselves within the innocent population of Gaza. These facts are conveniently ignored.
Seemingly, in response to the horrific terrorist acts of 7 October and in defending Israel’s territorial integrity and future wellbeing of its citizens, the Israeli Government and IDF are resorting to excessive means and recklessly disregarding the human tragedy their actions are causing. But whether Israel’s actions are conducted based on genocidal intent must be determined on a careful analysis of the operative facts and the law – not by conflating facts, taking them out of context, or presenting them selectively in a one-sided manner to fit a dolus specialis narrative.
In claiming that the current acts are genocidal because they “inevitably form part of a continuum”, South Africa’s rendition of historical events echoes UN Secretary-General Antonio Guterres’ remarks that the events of 7 October “did not happen in a vacuum.” Perhaps so. But the terroristic acts were not the acts of freedom fighters. Also, how does this square with Hamas and Palestinian Islamic Jihad using Palestinians of all ages and protected sites as shields? Are these not facts relevant for context in determining the intent behind the IDF’s choices in responding to attacks or in tracking down and eliminating threats? Are they also not facts relevant in determining to what extent or within what contours provisional measures should be ordered, consistent with Israel’s right of self-defense under Article 51 of the United Nations Charter?
South Africa likewise shies away from the law on genocidal intent. In claiming that the ICJ had determined that “forced mass displacement” (i.e. ethnic cleansing) is capable of being considered a genocidal act for the purposes of provisional measures, the SA Application cites paragraph 190 of the 2007 Bosnia v. Serbia and Montenegro judgment, glossing over the requirement of genocidal intent. In that paragraph, the ICJ held that “[n]either the intent as a matter of policy, to render an area ‘ethnically homogenous’, nor the operations that may be carried out to implement such policy, can as such be designated as genocide.” It considered that the requisite genocidal intent is “to destroy, in whole or part” a particular group, and that “deportation of displacement of the members of the group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of displacement.”
While the SA Application claims that statements by some extreme elements of the Israeli Government or IDF or reservists or former members of the Knesset indicate an intent to destroy Palestinians in Gaza “as such” and incitement to genocide, these stupid and irresponsible and toxic comments are not proof of the existence of genocidal intent. That said, such comments over time can and do play a role in further solidifying an already formed perception that at least some members of the Israeli Government and Knesset and IDF are recklessly courting ethnic cleansing (not a crime identified as such), which, could result in genocide – destroying part of the Palestinian people by permanently extinguishing their physical existence in Gaza (the ICTY Srebrenica cases are instructive on this point).
Yet, despite its faulty factual and legal analysis of the existence of genocidal intent, and despite its overly broad request for an order of provisional measures that does not provide for Israel’s right of lawfully engaging in acts of self-defense, the SA Application has merit; serious merit. I see it as a call for stepping back from the brink, a call for sober reflection and bold thinking. A wake-up call in moving away from a strategy of containment (keeping the Palestinians disenfranchised in tightly controlled concentrated areas) and moving towards solutions for a viable and sustainable peace that can only be realized with a genuine Palestinian homeland. The SA Application has the potential of serving as an off-ramp for deescalating the war in Gaza and as a clarion call for the day after transitional justice that moves beyond notions of returning to the status quo ante bellum and kicking the Palestinian question (a homeland where they are the masters of their destiny) down the road, guaranteeing the perpetuation of the cycle of violence.
There is a certain madness going on in Gaza. It is as if the Israeli Government and IDF are incapable of taking a step back to reflect how it could modify its prosecution of this war with greater respect for and protection of the Gazan Palestinians. The ultimate goals proclaimed at the outset made for good domestic politics, assuaging understandable urges for vengeance. But how realistic were some of those goals? It is one thing to go after the terrorists, but another to proclaim that all will be killed, or that Hamas will cease to exit – as if it all came down to a binary choice of action. Like Hydra, the mythological gigantic water-snake-like monster with nine heads, for every Hamas fighter the IDF kills, ten if not 100 will crop up. Maybe not in the name of Hamas, but just as real and dangerous and determined. This Hydra paradox is an investable fact; the elephant in the room that for some reason seems to go unnoticed or unappreciated.
Palestinians in Gaza and elsewhere perceive they are collectively being punished. Victimized for the sins of others or just because they are considered as the others. Perception not only shapes the truth, but often is believed to be the truth. When innocent civilians of all ages, from babies to the elderly are killed indiscriminately (as perceived by the Palestinians and generally perceived by a large segment of the public the world over), nuance and potentially valid explanations are of no comfort. In their eyes and from their experiences, no matter where the Palestinians in Gaza are located, no matter how faithfully they followed IDF instructions, no matter how innocent they may be and non-threatening their actions are, the truth for them is that the Israeli Government and IDF view them, collectively, as expendable – condemned to bear the brunt of the violence, destruction, mass forcible relocation, humiliation, loss of dignity, mayhem, and death. For them, rightly or wrongly, there is no justice, no law, no protection, no hope, no peace. Their daily, weekly, monthly, yearly reality with no end in sight is being physically and psychologically occupied, monitored, controlled, and destroyed. Even before the hell on earth or as on U.N. official described Gaza as a “scene of death and destruction”, the Palestinians in Gaza were living in somewhat of a dystopia.
A solution exists. It is called the two-state solution: back to the 1967 borders with some modest modifications that benefit both sides. But is it a realistic solution? Only if there is good-will on both sides. The current Israeli Government is obviously not interested; if anything, there are hard-right extremists, who, left to their own devices, would enthusiastically embrace ethnic cleansing. At some point, Israel will have to face the inevitable truth that only through a meaningful two-state solution will it ever be able to get off the endless merry-go-round of violence.
The occupied are entitled to resist, and in resisting, they are entitled to resort to force. Israel’s asymmetrical military advantage, along with the sustained sense of injustices perceived by the Palestinians (the blockade of Gaza is a good example), effectively has fostered an environment for terrorism to take root – where those resisting the occupation and inhumane treatment, as they perceive it, are driven into the arms of extremists, and where resorting to unlawful targeting of civilians and non-military installations and committing acts of terror are illogically justified as legitimate acts of resistance. This is an inescapable reality. History is replete with examples.
It is not about condoning violence but about understating its roots, its causes. I’ve been unequivocal in previous posts (here and here) that the events of 7 October were acts of terror against innocent civilians. Those actions had nothing to do with liberation, nothing to do with legitimate resistance. The aim was to terrorize and traumatize innocent civilians, indeed the entire Israeli population. Perversely, Hamas and Palestinian Islamic Jihad coveted an overreaction by the Israeli Government and IDF, knowing full well of the risks to the hundreds of thousands of innocent Palestinians. The larger the destruction, the higher the collateral damage body count, the greater the humanitarian crisis created by cutting water, electricity, food, fuel, etc., the better. Israeli Prime Minister Benjamin Netanyahu, members of his cabinet, and the IDF, abided.
Regrettably, no peace is in sight. There is a lack of leadership, a lack of an interlocutor on the both sides. But even if such leadership and such interlocutors existed, it is absurd to think that the Palestinians would sit at the negotiating table while settlements are being built on Palestinian land, and while cabinet ministers and members of the Knesset are not just dead set against any compromise, but openly promoting ethnic cleansing and (in)voluntary transfer of the Gazan Palestinians en masse.
The Israeli polity needs to seriously reflect, reevaluate, and realize that: (a) ethnic cleansing of Gaza is not feasible; (b) creating a tinderbox though severe policies that make life miserable, even unbearable for the Gazan Palestinians, is not a long-term, sustainable solution but a recipe for breading contempt and driving disaffected and disenfranchised Palestinians into the arms of terrorists; and (c) there cannot be viable peace without hope, without freedom, without self-determination.
In looking at the SA Application, it also merits looking at the submissions filed in the in the US District Court for the Northern District of California in Defense for Children International – Palestine et al. v. Joseph R Biden Jr., President of the United States of America, Anthony J, Blinken, Secretary of State, and Lloyed James Austin III, Secretary of Defense. A hearing is scheduled, serendipitously, on 11 January 2024, the same day the ICJ will hear the SA Application. In a Motion for Preliminary Injunction, the plaintiffs are seeking an order to essentially enjoin the US Government from providing “any further military or financial support, aid, or any form of assistance to Israel’s attacks and maintenance of a total siege on Palestinians in Gaza, in accordance with their duty under federal and customary international law to prevent, and not further, genocide.”
The factual predicate – as in the SA Application – discusses among other things the long-imposed blockade of Gaza by Israel, and the attendant result. To bolster their motion, the plaintiffs secured sworn declarations from experts. Rather than describe what is claimed and opining on their strength and weakness, I highly recommend that they be read as filed. Two in particular declarations merit careful analysis: Declaration of Dr. John Cox, Dr. Victoria Sanford, and Dr. Barry Trachtenberg and Declaration of William A. Schabas.
Of the two, Schabas’s declaration is exceptionally relevant in that his is a nuanced declaration where he essentially puts the US / Biden Administration on notice that not only there is a “serious risk of genocide committed against the Palestinian population of Gaza” and that the US is “in breach of its obligations under both the 1948 Genocide Convention … as well as customary international law, to use its position of influence with the Government of Israel” to prevent genocidal crimes from taking place. But also – reading between the lines – it puts the US on notice that it risks being entangled as an aider and abettor (think Stanišić and Simatović, and the debunking of the specific direction element). For more on Schabas’s declaration by none other than Schabas, I highly recommend you watch his exchange during his interview with Frank Barat.