The International Court of Justice convened on Thursday, January 11, in The Hague, Netherlands. Then followed two days of preliminary discussion of South Africa’s charge that Israel is committing genocide in Gaza. One day for the prosecution – South Africa; and one day for the defense – Israel.
Both as an economist and journalist, I am obliged to be ambidextrous – think and write with two hands. On the one hand, and on the other. Two or more sides to every issue. But not in this case. Not regarding the “Court of Injustice.” On this topic, I have only one hand.
The South African charge is outrageous, meritless, scandalous, without foundation, a blood libel… to cite only a few of the adjectives used, for example, by President Isaac Herzog and by US Secretary of State Antony Blinken. It should have been rejected by the court out of hand. Here is why.
What is the mission of the International Court of Justice (ICJ)?
The ICJ is one of six organs of the United Nations located in The Hague, Netherlands – the only one not sited in New York City. Its function is to settle disputes between nation states. The ICJ heard its first case on May 22, 1947. It has since heard 191 cases, the latest being South Africa’s charge of genocide against Israel.
What is South Africa’s accusation against Israel, submitted on December 29?
Genocide, against the Palestinians.
A Jewish Polish jurist named Raphael Lemkin coined the term “genocide” in 1944. Lemkin fled Poland after the Nazi invasion and became a law professor at Duke University in the US. He combined the words genos (Greek for “clan” or “tribe”) and -cide (Latin for “killing”). He worked on the legal team of Robert Jackson, chief US prosecutor at the Nuremberg Tribunal that tried Nazis, which began on November 25, 1945.
On December 9, 1948, the UN General Assembly adopted a convention unanimously, defining genocide as “intent to destroy, in whole or in part, a national, ethnic, racial or religious group.” Israel signed the convention.
The five acts defining genocide are killing; causing bodily harm; imposing deathly living conditions; preventing births; and forcibly transferring children. South Africa alleges that Israel engaged in mass killing of Palestinians in Gaza as part of the broader Palestinian national, racial, and ethnic group; destroyed their homes; expelled and displaced them; blockaded food, water, and medical aid; and imposed measures to prevent Palestinian births through destruction of essential health services.
Generally, ICJ deliberations take years. South Africa demands an interim decision within weeks, calling on Israel to cease fire immediately. This recommendation, if approved, would go to the UN Security Council and become binding.
Why is South Africa leading the charge against Israel?
Politics, of course. In 1994, in South Africa’s first post-apartheid election, the African National Congress (ANC) under Nelson Mandela was elected. It has ruled ever since, for almost 30 years, today holding 230 seats out of 400 in its parliament – and lately, ruled very badly. In South Africa, there are frequent power outages, shortages of water, over 40% unemployment, rampant crime, and widespread corruption. South Africa ranks 72nd in the world in Transparency International’s “freedom from corruption” index. A parliamentary report stated that President Cyril Ramaphosa “illegally hid a large sum of money in undeclared foreign currency at his farm in 2020” (a sofa stuffed with cash).
South Africa’s 60 million people are poor, with per capita GDP of $7,000, down sharply from $9,000 in 2010, despite its rich natural resources. National elections will be held this year. The ANC is in trouble. Polls show the ANC getting below 50%.
What to do? Divert attention from the mess ANC created, with some ICJ theater.
Why does South Africa trumpet the case for Hamas?
Nelson Mandela supported the Palestinian cause. But he also evenhandedly supported Israel’s right to exist.
South African Blacks have embraced the narrative that Israel imposes apartheid on Palestinians. It goes back over 60 years, when the architect of South African apartheid, prime minister Hendrik Verwoerd, attacked Israel’s vote against apartheid in the UN, claiming “Israel is not consistent in its new anti-apartheid attitude ... they took Israel away from the Arabs after the Arabs lived there for a thousand years. In that, I agree with them. Israel, like South Africa, is an apartheid state.”
South Africa has lined up solidly with the Russia-China-Iran axis, which actively supports Hamas. And Russia has, in turn, invested heavily in South Africa.
Russian Defense Minister Sergei Shoigu said recently that South Africa is a “friendly state” and that its support helped counter NATO pressure on Russia. Russian Foreign Minister Sergey Lavrov visited South Africa last January. South African Foreign Minister Naledi Pandor thanked Lavrov for the “most wonderful meeting” and described Russia as a “valued partner.”
Who are the ICJ judges?
There are 15 judges, nominated by member countries for long terms. For the South African case, there are two more – one from South Africa, and one from Israel (former Supreme Court chief justice Aharon Barak). The 15 judges are: Joan Donoghue (US), elected as president; Abdulqawi Yusuf (Somalia); Xue Hanqin (China); Peter Tomka (Slovakia); Ronny Abraham (France); Mohamed Bennouna (Morocco); Leonardo Nemer Caldeira Brant (Brazil); Julia Sebulinde (Uganda); Dalveer Bhandari (India); Patrick Lipton Robinson (Jamaica); Hilary Charlesworth (Australia); Kirill Gevorgian (Russia); Nawal Salam (Lebanon); Yuji Iwasawa (Japan); and Georg Nolte (Germany). Only four of the judges are women – a blatant injustice in itself.
I named the judges for posterity; those who vote to sustain the false charge will live in infamy.
Is the ICJ political?
Yes. A resounding yes because the ICJ judges are each sent by their country and, as such, are expected to reflect the policies and values of their respective nations.
Based on politics, expect Somalia, China, Morocco, Russia, and Lebanon to vote for South Africa. Four of these five are blatant genocide perpetrators.
Russia forcibly transferred Ukrainian children to Russia, hundreds of them. Lebanon hosts Hezbollah, declaredly out to destroy Israel. China is systematically persecuting the Muslim Uighurs. And Somalia hosts the murderous Al-Shabab, an affiliate of al-Qaeda, perpetrators of 9/11.
Russia wins the gold medal for chutzpah. In September, Russia alleged at the ICJ, where its representative is deputy president, that Ukraine “engaged in genocide in Eastern Ukraine” to justify its murderous attack. This baldfaced lie demeans and invalidates the ICJ as an impartial body.
What did Israel claim in its defense?
Israel sent a very strong team, which included British jurist Malcolm Shaw; Foreign Ministry legal adviser Tal Becker; Deputy Attorney-General Gilad Noam; Galit Raguan, Ministry of Justice; attorney Omri Sender; and British barrister Christopher Staker.
Shaw described Hamas’s “wholesale massacre, mutilation, rape and abduction” on October 7, noting that if there were acts of genocide, they have been perpetrated against Israel.” (Hamas, designated a terrorist organization by the United States and the European Union, is not a nation state and hence cannot be hauled before the ICJ.)
South Africa’s 84-page indictment included quotes from far-Right Israeli Knesset members. Shaw asserted that “choosing random quotes not in conformity with government policy is misleading” and does not reflect the war cabinet’s decisions and actions.
Shaw and Noam both stressed that Israel has a robust legal system, able to investigate on its own whether individual crimes were committed and the laws of war violated. In this claim, the recent Supreme Court decisions restoring its primacy, against the judicial coup, proved critical.
Becker said Israel’s military actions in Gaza are “acts of self-defense” against Hamas, accusing South Africa of trying to thwart Israel’s inherent right to defend itself.
Raguan cited the extensive measures taken by the IDF to mitigate harm to the civilian population, in contrast to Hamas’s use of civilians as human shields and its use of civilian structures for its attacks on Israel.
Sender said the IDF is now moving to a new, less intense phase of fighting and reducing the number of troops in Gaza. He said Israel is acting to map the needs of a future return of Palestinians to northern Gaza, proving that Israel is bound by its legal obligations as a co-signer of the Genocide Convention.
Staker asked what would have happened had the Allies been accused of genocide committed in World War II? (On February 13-15 of 1945, hundreds of US and British bombers fire-bombed the city of Dresden, 100 miles south of Berlin, killing 25,000. The US military estimated that in Japan, 70,000 people were killed in Hiroshima, and 40,000 in Nagasaki after atom bombs were dropped on them on August 6 and 9, 1945; those numbers are underestimates.)
Every day, Israel provides and facilitates food, water, fuel, electricity, and other necessities to the Gaza population. I wonder, in which war in history did the nation that was attacked and massacred face demands to feed the people that assaulted it while it defended itself? Name one.
Is the United Nations, the parent of the ICJ, structurally biased against Israel?
You’d better believe it. Consider this. Of the 193 members of the UN General Assembly, only 84 are ranked as “free” democratic societies. Of the 47 members of the UN Human Rights Council (UNHRC), only 13 are fully economically and politically free; the council includes such paragons of sterling human rights as Russia, China, Afghanistan, Bahrain, Pakistan, Qatar and, yes, Saudi Arabia. In 17 years, the UNHRC has condemned Israel 103 times – and zero for China, Saudi Arabia or Venezuela.
In 2022, the UN General Assembly passed 15 resolutions condemning Israel, but not a single one on human rights violations in Venezuela, China, Saudi Arabia, Cuba, Turkey, Egypt, Zimbabwe, Pakistan, Qatar, Vietnam or Algeria. Iran? Once.
How has Germany supported Israel?
In an unusual move, Germany requested third-party status in the ICJ case brought by South Africa. A German spokesman said: “We stand firmly against a political instrumentalization of the Genocide Convention.” As a third party, Germany will “help to improve communication, offer impartial support, provide resources or information, and provide outside judgment/arbitration” – all this in support of Israel.
This is especially important because Nazi Germany committed massive genocide, murdering 59% of the pre-war Jewish population of 10,431,569 (according to Yad Vashem).
Why is this a blatant case of blaming the victim?
US Secretary of State Antony Blinken said that the South African charge that Israeli committed genocide “is particularly galling, given that those attacking Israel – Hamas, Hezbollah, the Houthis – as well as their supporter Iran, continue to openly call for the annihilation of Israel and the mass murder of Jews.”
Psychologist William Ryan coined the phrase “blaming the victim” in his 1971 book [Blaming the Victim]. Victim blaming is holding victims of a crime entirely or partially at fault for the harm that befell them.
Oppressing the Palestinians? “You Israelis had it coming to you,” the antisemites claim. Jews? Israelis? Hamas makes no distinction. “Itbach al Yahud” (Slaughter the Jews). Hamas terrorists screamed on October 7 as they attacked. We Israelis have heard that for decades.
The International Court of Injustice is engaged in blaming the victim. But this travesty will not stand. However the 17 judges rule, Israel will stand. And in the end – “justice, justice, shalt thou pursue” (Deuteronomy 16:20) – justice will prevail. ■
The writer heads the Zvi Griliches Research Data Center at S. Neaman Institute, Technion and blogs at www.timnovate.wordpress.com.