JUSTICE - No. 71

23 Spring 2024 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.8 The Genocide Convention further stipulates: Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.9 The offense of genocide, as set out in the Convention, requires both genocidal intent and genocidal acts. From the outset, it must have been obvious to South Africa that Israel did not satisfy either the intent or the acts requirement. Therefore, South Africa focused its effort on persuading the Court to issue an interim order, which only requires the Court to find that the danger of genocide “is plausible,” that is, likely. To attempt to prove plausible genocidal intent, the Court, whose members are appointed by the UN General Assembly with the approval of the UN Security Council, relied on a number of bellicose statements by Israeli politicians. The Court ignored the fact that none of the statements came from Israeli leaders who are members of the interim war government, and therefore in charge of directing the war effort. The Court also failed to acknowledge the fact that the Israeli Government is actively working to prevent or minimize civilian casualties. Additionally, the ostensibly impartial UN submitted no statement by Israel; only documents that supported the South African claims. The South African attempt to stigmatize Israel with the stain of attempted genocide was revealed to be a shallow attempt to outlaw Israel as a pariah State. However, South Africa strategically omitted facts that completely neuter the veracity of their intent claims: the immense civilian casualties in Gaza result from Hamas’s well-established tactic of using civilians and civilian infrastructure as human shields. This includes well documented instances of Hamas placing command centers under hospitals, and ammunition supplies in schools and mosques. Moreover, the Court practically ignored the attack by Hamas on October 7, 2023, and in its nearly 30-page decision, made no mention of the fact that Hamas was continuing to indiscriminately fire rockets at Israeli civilian towns and villages. The Court ignored the fact that Hamas is not a “liberation movement,” but an Iranian-backed, wealthy, despotic de facto government. Ignoring Hamas’s conduct is described by Frances Raday as “A new category of asymmetrical law-fare.”10 As to “genocidal acts,” the Court again relied on the large number of civilian casualties, numbers provided by UN bodies, relying in turn on numbers provided by the Gaza Health Ministry, a Hamas government entity. The Court itself wrote that it had no independently verified information. Among the sources the Court relied on were UN human rights bodies. These included the Human Rights Council which, despite its name, is a political body dominated by anti-Israel States. Its membership includes, among others, South Africa and Qatar, which has a long-established relationship with Hamas. Another so-called reliable neutral source, according to the Court, was the United Nations Relief and Works Agency (UNRWA), several of whose employees took part in the murderous October 7 attack. When referring to the number of casualties, the Court quotes Hamas sources and states that they were “Palestinians,” without so much as hinting that the source comes from Hamas. Additionally, the Court, like Hamas, makes no distinction between civilian and terrorist casualties.11 A reading of the Court’s decision leaves the impression that no terrorists were killed, only 8. Convention on the Prevention and Punishment of the Crime of Genocide, Art. II, Dec. 9, 1948, 78 U.N.T.S. 276, available at https://treaties.un.org/doc/Publication/ UNTS/Volume%2078/volume-78-I-1021-English.pdf 9. Ibid., p. 282, Art. IX. 10. Frances Raday, “South Africa vs Israel,” Oxford Human Rights Hub, Oxford University, Feb. 5, 2024, available at https://ohrh.law.ox.ac.uk/south-africa-vs-israel/ 11. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures (Jan. 26, 2024), ¶ 46, available at https://www.icj-cij.org/sites/default/ files/case-related/192/192-20240126-ord-01-00-en.pdf

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