Irwin Cotler: South Africa is inverting reality by accusing Israel of genocide
In asserting standing before the ICJ, South Africa has emphasized “its own obligations as a State party to the Genocide Convention to act to prevent genocide.” But by launching a baseless proceeding against Israel for the crimes of genocide and incitement to genocide, it provides protective cover to Hamas and its related Iranian terrorist proxies, who themselves are the ones guilty of those crimes. South Africa thereby inverts reality and subverts the rules-based international order. This subversion is dangerous, and deeply concerning, following the pattern set by Vladimir Putin’s Russia — with President Putin using false accusations of genocide in his “Nazification” libel as the pretext for launching his criminal aggression against Ukraine.Alan Baker: South Africa’s genocide charges against Israel: Cynical abuse of the ICJ
Indeed, South Africa’s cynical weaponization of international law was further demonstrated when, on Jan. 4, less than a week after launching the ICJ proceedings against Israel, South African President Cyril Ramaphosa welcomed the leader of the Rapid Support Forces (RSF) to his home in Pretoria. The RSF, complicit in the Darfur genocide 20 years ago, is once again perpetrating mass crimes against humanity in Sudan, including the massacre of innocent civilians and the systematic use of sexual violence. Recently, over 100 legal experts warned that Sudan sits on the precipice of another genocide.
Genocide, the “crime of crimes,” constitutes the most abhorrent of human acts. The 153 state parties to the Genocide Convention have both a moral and a legal imperative to take action to combat genocide — and incitement to genocide — wherever they may occur. But, rather than upholding this legal obligation, South Africa’s application at the ICJ undermines it, inverting both fact and law, and threatening the international rules-based order by doing so. As was most recently demonstrated by the Russian invasion of Ukraine, this inversion is most dangerous, and it is crucial that the community of democracies, including Canada, is steadfast in opposing it.
South Africa's genocidal claim echoes Palestinian chartersPaywalled: The genocide case against Israel is an abuse of the postwar legal order
IRONY IS not lacking from the specific terms of the South African application to the International Court of Justice, alleging that Israel is violating the Genocide Convention. This is especially in light of the deliberately distorted and misleading interpretation given by South Africa to the terms of the Genocide Convention.
The criminal component of the Genocide Convention is based entirely on one very central tenet requiring a distinct intention to commit genocide. South Africa is alleging that Israel’s acts are “intended to bring about the destruction of a substantial part of the Palestinian national, racial, and ethnic group.”
If such a specific and distinct genocidal intention cannot be proved and does not exist, then the complaint by South Africa has no basis and the convention cannot be invoked.
A thorough perusal of the complaint reveals a curious tendency by South Africa to attribute to Israel a broad and clearly false 75-year genocidal intention to destroy the Palestinians. By so doing, South Africa basically is echoing the messages of the PLO and Hamas charters, and as such is utterly distorting the very nature of the present limited conflict against the terror activity of Hamas.
Clearly, rather than harboring a 75-year-old genocidal intention, Israel has, throughout its short history, consistently sought to achieve peaceful coexistence and bon voisinage with its neighbors, including the Palestinians.
This is borne out by the many agreements reached, including the 1978 Camp David Accords and the 1991-1993 Madrid process that led to the 1995 Oslo Accords.
One may ask why would Israel have committed itself to such a declared and agreed peace negotiation process with the Palestinians, witnessed and endorsed by the leaders of the international community and the United Nations itself, if it harbored any basic intention to commit genocide against the Palestinian people?
South Africa's cynical use of the term genocide
Through quoting in its complaint a lengthy collection of irresponsible statements by minor Israeli politicians, and even through quoting Israeli pop songs, South Africa is in fact cynically ignoring the very central issue of the conflict between Israel and Hamas: Israel’s inherent and legally justified prerogative and international right to defend itself and its population against terror through removing Hamas’s terror capabilities, weaponry, fortifications, and ammunition.
To claim that Israel’s actions to combat terror constitute the crime of genocide is clearly absurd to the point of being a frivolous accusation. No logical and serious analysis of the conflict between Israel and Hamas could indicate any genocidal intention on the part of Israel.
To burden the International Court of Justice with such a false and misleading allegation undermines the very integrity of the Genocide Convention and is both an insult to the Court, to the countries whose judges serve on the Court’s bench, as well as to the United Nations as a whole.
The International Court of Justice is about to hear arguments in a case, brought by South Africa – the country that in 2015 refused to send former Sudanese president Omar al-Bashir of Sudan to the International Criminal Court to stand trial for his contribution to war crimes in Darfur, and instead facilitated his return to Sudan where he continued his crimes – that alleges that Israel has not complied with the Genocide Convention and calls on the Court to order Israel to stop committing acts of “genocide” in Gaza.
To me, this case represents an outrageous and cynical abuse of the principles underlying the international legal order that was set up after the Second World War.
Hamas’s explicit and unapologetic goal is to eliminate Jews. The elimination of Jews is genocide. That is why Hamas murdered, raped, beheaded, kidnapped and tortured Jews on Oct. 7, 2023: to eliminate them, because they were Jews. It is a legal absurdity to suggest that a country that is defending itself from genocide is thereby guilty of genocide.
The end of the Second World War prevented Hitler from fully implementing his genocidal plan to eliminate Jews. And the world signed the Genocide Convention 75 years ago to make sure it never happened to anyone else. Now, we find ourselves in the perverse situation where a genocidal organization such as Hamas is able to escape legal scrutiny or sanction for committing genocidal acts, while the country that is the intended target of its genocidal intentions is being called upon by the International Court of Justice to defend itself from allegations of genocide.
This is an insult to what genocide means, an insult to the perception of the ability of international courts to retain their legitimacy and transcend global politics, and an insult to the memory of all of those on whose behalf the Genocide Convention was created.
Rosalie Silberman Abella is the Samuel and Judith Pisar Visiting Professor of Law at Harvard Law School. She served as a justice of the Supreme Court of Canada from 2004 until her mandatory retirement in 2021.