JUSTICE - No. 71

18 No. 71 JUSTICE set to move forward to the merits stage. The South African application represents a classic and particularly insidious example of lawfare where the postWorld War II Genocide Convention is weaponized against the Jewish state. Article II of the 1948 Convention on the Prevention and Punishment of Genocide defines the crime of genocide as follows: 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.34 It is important to note that this language was adopted by Article 6 of the Rome Statute, which established four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.35 The crucial component of the definition for genocide is the intent requirement. To that end, if the definition of genocide applies to any actions in the region, it is to the repeated calls by Hamas and Iran for the destruction of Israel and their expressed intention to continue harming Israelis and Jews around the world. The deaths of Gazan civilians since October 7, 2023, are a tragedy, yet most of the deaths are due to Hamas’s use of those civilians as human shields. By contrast, Israel’s conduct in its war of self-defense does not come remotely close to an intent to destroy the Palestinian people of Gaza. If anyone is guilty of genocide and other crimes, it is Hamas. No aspect of the above definition applies to Israel’s actions within its own borders, the West Bank, or the Gaza Strip, and demographic data contradict the very idea of a claim of “genocide.” Logic requires that if a group is intent on committing genocide, then they will try to reduce the number of people in the targeted group. However, the Arab population inside Israel’s borders rose from 167,000 in 1950 to 2.1 million in 2023.36 Similarly, when Israel took control of the West Bank and Gaza in June 1967, the West Bank’s Palestinian population stood at 598,637, and Gaza’s population was 356,261.37 By 2023, according to the Palestinian Central Bureau of Statistics, the population of the West Bank had increased to 3,256,906, while the population of the Gaza Strip had grown to 2,226,544.38 The dramatic population growth in the West Bank and the Gaza Strip belies any claim of an alleged Israeli “intent to destroy” the Palestinian people. Moreover, the above figures negate the related Palestinian claim that Israel has engaged in “ethnic cleansing” of the Palestinian population. The only population group in the Middle East that experienced ethnic cleansing during the past century were the more than one million Jewish inhabitants of Arab countries, nearly 850,000 of whom were expelled between 19481950 following Israel’s declaration of independence.39 The “genocide” accusation is especially offensive and insidious given the Nazi genocide of the Jewish people during World War II. However, Palestinian advocates have repeatedly characterized Israelis as “Nazis” in a cynical and deplorable attempt to equate Jews as morally equivalent with the regime that perpetrated the Holocaust against them. The modern-day Palestinian “genocide” claim has its origins in the January 1937 testimony of one of its most famous lawyers, Auni Bey Abdul Hadi, before the Palestine Royal Commission. Auni Bey claimed the “plight” of the Palestinian Arabs as of early 1937 was “worse” than the plight of German Jews on the eve of the Holocaust. 34. UN G.A. Res. 260 (III), at 277, U.N. Doc. A/RES/3/260 (Dec. 9, 1948). 35. Rome Statute of the International Criminal Court, art. 6, July 17, 1998, 2187 U.N.T.S. 90, available at https:// www.icc-cpi.int/sites/default/files/RS-Eng.pdf 36. https://www.jewishvirtuallibrary.org/latest-populationstatistics-for-israel 37. West Bank of the Jordan, Gaza Strip and Northern Sinai, Golan Heights, Data from Full Enumeration, State of Israel, Central Bureau of Statistics (Jerusalem 1967), available at https://www.levyinstitute.org/pubs/1967_ census/vol_1_intro.pdf 38. 2023 Mid-Year Population Report, Palestine Central Bureau of Statistics, available at https://www.pcbs.gov. ps/statisticsIndicatorsTables.aspx?lang=en&table_id=676 39. Carole Basri, “The Jewish Refugees from Arab Countries: An Examination of Legal Rights – A Case Study of the Human Rights Violations of Iraqi Jews,” 26 FORDHAM INT'L L.J. 655, 666-67 (2002).

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