By CARLO ALDROVANDI*
Within Israel's collective psyche, the recent proceedings of the International Court of Justice represent an unsettling reversal of history.
In recent days, South Africa has presented its case at the International Court of Justice in The Hague, accusing the Israeli government of committing genocide with its 100-day attack on Gaza. With the death toll approaching 24.000 in the Palestinian territory, South African lawyers have presented the grounds on which they accuse Israel of violating the 1948 Genocide Convention, while Israel's legal team has presented its counterarguments.
South Africa's argument is essentially that Israel's attack “aims to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group, which is the part of the Palestinian group in the Gaza Strip”. Israel, in turn, denied it, arguing that it has exercised its fundamental right to self-defense under international law.
The United Nations convention was adopted by the General Assembly on December 9, 1948. It was the first human rights treaty to respond to the systematic atrocities committed by the Nazi regime during World War II.
It was a Polish Jew, Raphael Lemkin, who first coined the term “genocide”. Lemkin was a lawyer who fled to the United States in 1939 after Germany invaded his country. He combined two words: the Greek genos (race or tribe) and Latin cide (of caedera, which means to kill).
According to article 2 of the convention, the main feature of the ultimate crime against humanity is twofold. First, victims of genocide are always “passive targets”. They were singled out because of their membership in a national, ethnic, racial or religious group and not because of anything they did. In addition, this crime also establishes a “specific intent” to destroy, in whole or in part, that group.
The link between the two provisions is the backbone of the convention. It marks legal limits that differentiate genocide from other crimes against humanity. While high death tolls often rightly bring international condemnation, as a legal category, genocide does not depend on the number of civilian casualties that may result from a state's disproportionate use of military force.
Incendiary statements
South African lawyers went to great lengths to prove genocidal intent. They supported this claim by citing some of the most incendiary statements from far-right members of the Israeli government. On November 5, Israel's Heritage Minister Amichai Eliyahu stated that “there are no uninvolved civilians in Gaza” and that dropping a nuclear weapon there was an “option.”
Eliyahu is not a member of Israel's three-person war cabinet. But South Africa's order also reported other controversial statements by these senior leaders.
Shortly after the October 7 attacks, Defense Minister Yoav Gallant argued that a complete blockade of Gaza City – preventing water, food, gas or medical supplies from reaching civilians – was a legitimate war tactic. Israeli President Isaac Herzog said everyone in Gaza was complicit in the Hamas terrorist attack: “It is an entire nation out there that is responsible.” Prime Minister Benjamin Netanyahu, in turn, dropped strong insinuations with repeated references to biblical history, invoking God's exhortation to Israel to deal harshly with one of its enemies to “blot out the memory of Amalek from under heaven.”
Robust rebuttal
The Israeli legal team presented a robust rebuttal. They maintained that the Israel Defense Forces' campaign in Gaza was justified by the inalienable right to self-defense. Therefore, it was within the strict parameters of International Humanitarian Law. It was Hamas, they suggested, that maliciously endangered Palestinian lives by protecting its military wing inside residential areas while launching attacks on schools, mosques, hospitals and UN facilities.
In opening to Israel, Tal Becker, legal advisor to the Ministry of Foreign Affairs, argued that South Africa was “asking the UN court to replace the lens of an armed conflict between a State and a lawless terrorist organization with the lens of a called “genocide” by a State against a civilian population”. In doing so, South Africa was not providing the ICJ with a lens, but a “blindfold”.
Tal Becker read descriptive excerpts from a video compiled by the Israeli government describing some of the alleged atrocities committed during the October 7 Hamas attack. He also showed an interview with senior Hamas leader Ghazi Hamad, speaking on Lebanese television on October 24, in which he appeared to claim that Hamas aimed at the complete annihilation of Israel.
Ghazi Hamad said: “We must teach Israel a lesson, and we will do this two and three times. The Al-Aqsa Flood [the name Hamas gave to its attack] is just the first time, and there will be a second, a third, a fourth.” This was offered as proof that, contrary to what happens in South Africa, it was Hamas that harbored genocidal intent towards the Israelis.
Historic watershed
Whatever the court's final determinations, the accusation made against Israel constitutes a historic watershed with profound symbolic ramifications. Palestinians have traditionally sought legitimacy and recognition by trying to incorporate their national aspirations and rights into the lexicon of international law. Now, they can feel some catharsis as they see Israeli representatives being forced, for the first time, to defend their country's conduct of the war before a panel of UN judges.
Within Israel's collective psyche, the recent proceedings of the International Court of Justice represent an unsettling reversal of history. The crime of genocide has now been invoked against Israel – a State established in the same year as the UN convention and with the same logic: to protect the Jewish people from future persecution and destruction.
Without proven intent, the South African claim could be, as US Secretary of State Antony Blinken insisted, “without merit” from a legal point of view. But this reversal alone could retain enough symbolic influence to deal a decisive blow to Israel's international status.
*Carlo Aldrovandi is professor at the School of Religion at Trinity College Dublin.
Translation: Eleutério FS Prado
Originally published on the portal SocialEurope.
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