War Day #97. Israel on Trial at the Hague, Part l
Thursday, January 11
So today, the International Court of Justice (ICJ) aka the Hague, Netherlands, heard South Africa's complaint (supported by countries including Jordan, Malaysia, our always-loyal friend Turkey; and unofficially on X, Belgium) that Israel is guilty of genocide in Gaza. The South African delegation included British Labor leader and professional Israel critic Jeremy Corbyn (apparently their first choice, Roger Waters, wasn’t available :)
This piece is long, so here are the highlights:
* South Africa is pretty hypocritical. Not only are they doing this to alleviate their own domestic political mess as the NYT discusses, they themselves have ignored The Hague rulings when it suits them (sordid details below).
* If the court doesn’t chuck this case out, it is less a court and more a political lynch mob.
Israel — founded in the ashes of the Holocaust as a homeland for Jews, hundreds of thousands of whom were expelled from Arab countries, and who underwent genocide on a massive scale — is now on trial for their response to Hamas attempting actual genocide on October 7 - Hamas, whose very charter explicitly calls for the obliteration of Jews worldwide.
It doesn’t get more ironic or twisted than that.
More than 150 countries worldwide have ratified the Genocide Convention, which lets countries file complaints even if, as in this case, South Africa has no skin in the game. The NYT suggests that though South African maintains it is pursuing its case to stop a genocide, analysts say officials are more likely motivated by domestic pressures: Support for Palestinians is popular in South Africa, and the governing African National Congress is exploiting that support in the prelude to an important national election this year. In other words, they’re here for the local votes.
Israel is sending retired Supreme Court president Aharon Barak to serve as the Israeli rep. Barak, 87, is a Holocaust survivor, and not a fan of the current coalition government (and vice versa), which makes him an interesting choice.
At The Hague, South Africa and Israel each get three hours to present their cases. South Africa spoke today; Israel has their turn on Friday.
Israel is being accused of genocide — even though it is the Hamas charter that calls for the death of Jews worldwide, and Hamas that has said it would like to repeat October 7 again and again.
The White House is supporting Israel in the hearing. Secretary of State Antony Blinken said accusing Israel of genocide is “particularly galling, given that those who are 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.” John Kirby, US National Security Council spokesman, said the case is “meritless, counter-productive, completely without any basis in fact whatsoever.”
The current 15 Hague judges, appointed for nine-year terms are from: Russia, China, Lebanon, Somalia, Morocco, Uganda, Jamaica, Japan, Brazil, France, India, Australia, Germany, Slovakia, and the United States. (The UN has never invited an Israeli judge to sit on the court.)
It is complicated to speculate about how countries may vote, but an indication may be gleaned from the recent U.N. vote on whether Israel should have a ceasefire in Gaza. Of the 15 Hague judges, only the United States voted in support of Israel’s position; only two, Germany and Slovakia, abstained.
So of the 15 judges, Israel can count on only three: the U.S., Germany and Slovakia.
France, Australia and probably India are also likely. Jamaica and Japan might be on Israel’s side. Lebanon will vote against. Russia and China would be likely to vote against, except that both have pending genocide charges against their own countries, which might cause them to demur. The others are wild cards. Decisions are by majority, and in the event of a tie, the president’s vote (ie, the U.S.) decides.
The Genocide Convention was the first human rights treaty adopted by the General Assembly of the United Nations on December 9, 1948. According to the UN website, it “signified the international community’s commitment to ‘never again’ after the atrocities committed during the Second World War.”
To see it wielded antisemitically now against Israel is unconscionable.
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.
—
Quoting from the website:
“The intent is the most difficult element to determine. To constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnical, racial or religious group. Cultural destruction does not suffice, nor does an intention to simply disperse a group.
“Importantly, the victims of genocide are deliberately targeted - not randomly – because of their real or perceived membership of one of the four groups protected under the Convention (which excludes political groups, for example). This means that the target of destruction must be the group, as such, and not its members as individuals. Genocide can also be committed against only a part of the group, as long as that part is identifiable (including within a geographically limited area) and “substantial.”
The US was accused of genocide of Black Americans in 1951; the case was rejected. Serbia and Montenegro were questioned in 2007; Myanmar against the Rohingya in 2016; Bosnia; and Russia/Ukraine against each other in the recent war (still pending).
The UN website is very murky on the status of these issues, but from what I could discern, the Uyghur genocide, Iraqi Turkmen genocide, genocide of Yazidis by the Islamic State, Darfur genocide, Congo genocide, Hutu massacre, Rwandan genocide, Somalia genocide, Kurdistan genocide, Zimbabwe genocide, Cambodia genocide, East Timor genocide, Uganda genocide, Burundi genocide, Bangladesh genocide, Zanzibar genocide, Guatemalan genocide, Chechen deportations, and Crimean Tartar deportations, all of which happened after the Genocide Convention was introduced, seem never to have been adjudicated.
Singling out Israel, anyone?
South Africa’s 84-page (not-so) brief refers to Israel’s “75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza.” It is particularly hypocritical that South Africa, the country that invented apartheid, seems incapable of distinguishing South African apartheid from the situation in Israel, where Israeli Arabs are full members of Israeli society, with all the benefits that incurs, including the right to vote and the right to be in the Knesset.
(Also ironic that South Africa, accusing Israel of apartheid, was represented by a succession of white people, till the three-minute summary statement.)
Nor does South Africa seem particularly vigilant in enforcing genocide claims except against Israel. Today’s Wall Street Journal points out that:
“South Africa hasn’t always strictly enforced international laws against genocide, allowing then-Sudanese President Omar al-Bashir to attend a 2015 African Union summit in Johannesburg and depart without incident, despite arrest warrants issued by the ICC accusing Bashir of genocide and war crimes. In 2017, a panel of ICC judges found that South Africa, which is a member of the court, violated its duty to arrest Bashir and surrender him to The Hague for trial.”
South Africa has also had very recent dealings with the Rapid Support Forces, which are implicated in both the Darfur genocide, and the current massacre in Sudan. Apparently, it is only Israel that concerns South Africa.
*
To be proven guilty, Israel would need to be proven to be not only acting in its defense, and not only targeting Hamas, but also with the intention of destroying the entire Palestinian people.
There are a few things that should be part of the Israeli argument:
* First of all, the recognition that the only numbers available are those of the Gazan Health Ministry, which operates in conjunction with Hamas.
* Second, we have just last week seen in Iran, that assessing the death toll after just two bombs exploded was not simple: the death toll went from the first reported 103, to the current 84.
Iran revises deathtoll downward
So Iran had overestimated the deaths by 23%. Even assuming the Gazan Health Ministry is off by the same percentage (and it seems as though, working with larger numbers, they might be off by a whole lot more), the actual dead, of the 23,000 inflated reported, are with this 23% margin of error, closer to 18,699.
* Third, the ministry does not distinguish between non-combatants and Hamas, as I wrote in a longer analysis here.
According to UN estimates (and the UN is not, how to put this delicately, known for its friendly Israel stance) in conflicts and wars worldwide, including Afghanistan, there is an average three-to-one ratio of civilian to combatant deaths expected.
That means, three civilians are expected to be killed for each combatant eliminated. (In Iraq and Kosovo, it was worse, at four-to-one; in Chechnya and Serbia, much, much worse.) Wikipedia claims that it is well beyond that, that starting in the 1980s, 90% of war deaths worldwide were civilians. But 3 to 1 is the acceptable, target number.
As of today, Hamas claims 23,000 dead. The IDF reports 9,500 terrorists killed. Using the corrected margin of error 18,699 number, minus the 9,500 terrorists, leaves 9,199 civilians killed. Fewer than the number of verified terrorists killed, and almost one to one civilians to combatants.
Any dead are a tragedy. But this is well under the UN-approved ratio for war.
—
Furthermore: South Africa’s 84-page complaint doesn’t mention Hamas’ habit of draping its rocket launchers in civilian infrastructure, including preschools, hospitals, and UNRWA facilities, or their tunnel network, despite the fact that this entrenchment in the civilian population goes a long way towards explaining the civilian death toll.
So one point Israel should be stressing is that because Hamas has been committing the war crime of embedding itself in civilian areas, ordinarily-civilian protected places including schools, hospitals and mosques are legitimate targets, because Hamas is using them for military purposes.
South Africa’s testimony today attempts to tie Israel’s hands: “No matter how great the threat to Israeli citizens, attacks on the Palestinians can never be justified… No matter how monstrous an attack or provocation, genocide is never an acceptable response.”
But Gaza is not genocide under any sensible definition. It is war. And there are rules for war, which Israel is following.
In other words, South Africa is not just accusing Israel of genocide. They are also accusing Israel of incompetence.
If Israel wanted to commit genocide we would….
(Is anyone still reading? Stay tuned for tomorrow’s exciting conclusion.)
Israel presents its case Friday at 3 am eastern time. You can watch it live on youtube if you’re not sleeping.
