January 5, 2024 | Policy Brief

South Africa Wages Lawfare Against Israel at the ICJ

January 5, 2024 | Policy Brief

South Africa Wages Lawfare Against Israel at the ICJ

South Africa initiated proceedings against Israel at the International Court of Justice (ICJ) on December 29, alleging that Israel’s response to the largest murder of Jews since the Holocaust has included genocidal acts. White House National Security Council spokesman John Kirby rightly condemned South Africa’s submission as “meritless, counterproductive and completely without any basis in fact whatsoever.”

South Africa alleges that Israel has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). Both Israel and South Africa are parties to the ICJ and to the Genocide Convention. The South African submission urges the ICJ to take various steps, including, on an emergency basis, ordering Israel to “immediately suspend its military operations in and against Gaza.”

The Genocide Convention defines genocide as perpetrating one or more of several specified acts, including killing members of a group, when such act or acts are “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” Israel is assembling a defense team and has called the accusation a “blood libel,” a reference to false accusations leveled against Jews to justify their persecution and murder.

South Africa’s submission fails to offer substantive evidence, let alone proof, of Israel’s intent to commit genocide. As Israel Defense Forces (IDF) Chief Spokesperson Daniel Hagari has said, and other Israeli officials have echoed, Israel’s “war is against Hamas — not the people of Gaza,” and the IDF is “taking extensive measures to mitigate harm to the civilians that Hamas uses as human shields.”

Israel’s measures to mitigate harm to Gaza civilians include providing advance warnings to civilians prior to attacks on particular locations; urging civilians to evacuate temporarily through designated safe routes; establishing humanitarian corridors and zones; and aborting operations that were anticipated to result in excessive civilian harm. These measures make clear that Israel’s goal is not to commit genocide but, far from it, to minimize Palestinian civilian casualties while lawfully exercising Israel’s rights to free the hostages, apprehend the perpetrators of the October 7 atrocities, and ensure that Israel’s population is secure from further attacks.

South Africa bases its claim principally on false allegations by United Nations (UN) officials, including the special rapporteur for the Palestinian territories and the commission of inquiry on the Israeli-Palestinian conflict, both of which have been thoroughly discredited for their extreme anti-Israel bias both prior to and during their UN service. The South African submission also relies on cherry-picked, decontextualized quotes from Israeli officials and troubling remarks from Israelis with no responsibility for war-related decision-making. At the same time, Pretoria’s submission disregards the actual motivation for the IDF’s military actions in Gaza — Israel’s lawful exercise of its rights, which are clear under international law, to rescue its hostages, bring to justice those responsible for the October 7 atrocities, and ensure that those atrocities cannot be repeated.

Pretoria’s lawfare assault on Israel at the ICJ is the latest in its extreme anti-Israel hostility following Hamas’s October 7 attack. South Africa’s foreign ministry immediately blamed Israel for provoking the massacre, and the foreign ministry later argued that Israel has no right to defend itself militarily against Hamas. Additionally, the South African government recalled its ambassador and all diplomatic staff from Israel, and South Africa’s parliament voted to close Israel’s embassy in South Africa and sever diplomatic ties.

At the ICJ, South Africa hopes to cast Israel’s defense against a genocidal terrorist group as a form of genocide. The United States should robustly oppose the South African government’s effort to unfairly malign Israel. The Biden administration should submit a strong brief to the ICJ, encourage and assist its allies to do likewise, and firmly discourage South Africa (and any other countries) from proceeding with this initiative, which turns reality on its head and undermines the credibility of the international legal system.

Orde F. Kittrie is a senior fellow at the Foundation for Defense of Democracies (FDD) and a law professor at Arizona State University. He previously served for over a decade in legal and policy positions at the U.S. State Department. Follow Orde on X @ordefkDavid May serves as research manager and a senior research analyst at FDD. They both contribute to FDD’s Israel Program. For more analysis from the authors and FDD, please subscribe HERE. Follow Orde and David on X @ordefk and @DavidSamuelMay. Follow FDD on X @FDD. FDD is a Washington, DC-based, nonpartisan research institute focused on national security and foreign policy.


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