A CRITICAL PERSPECTIVE ON THE ISRAELI GENOCIDE DEBATE
“I just wish there were grownups in power… grownups who were responsible, who were honest, who are decent..” Jeffrey Sachs
“To be clear, when we say that Hamas should be destroyed, it also means those who celebrate, those who support, and those who hand out candy — they’re all terrorists, and they should also be destroyed.” Israel’s Minister of National Security
For those of us who are more careful about the information they gobble up, it is difficult to determine what the truth is in the Israel-Palestinian conflict. The information sources, whether government, corporate media or independent journalism, all seem to have allied themselves with one side or the other. The recent charges of genocide in the case brought by South Africa in the United Nations’ International Court of Justice (ICJ) is a good example of the problem.
The quote from Jeffrey Sachs above is in response to the White House statement about the South African petition to the ICJ charging Israel with genocide in Palestine. The dismissive White House response was that the case was “meritless, counterproductive and completely without any basis in fact whatsoever.” Predictably, Germany sought to intervene in the ICJ proceedings in Israel’s behalf, parroting the White House position that there was “no basis whatsoever” for an accusation of genocide against Israel. Most of the corporate media has either been conspicuously silent on the event or has taken the official U.S. position. As far as I know, none of the major networks aired or even seriously covered the South African presentation of its case on Thursday.
To be fair, most of the Republicans in Congress have also unequivocally, uncritically and unconditionally sided with Israel including the Speaker of the House and our own representative in East Texas, not to mention both our Senators Cruz and Cornyn. Even RFK Jr seems to have thrown all his eggs into the Israeli basket.
On the other side of the issue, we have more independent voices, who have been reliable on many other issues, such as Briahna Joy Gray on The Rising, Blumenthal from the Grayzone, Kim Iverson, Andrew Napolitano, Glenn Greenwald, etc., but who all seem to have allied themselves unequivocally, uncritically and unconditionally with the Palestinian cause. For example, Brihana on The Hill’s Youtube program RISING asserted that the hearing at the ICJ would establish “whether Israel is guilty of genocide.” This is blatantly false. Simply reading the 84-page application will demonstrate that the South African petition simply appeals for the court to recognize “the PLAUSIBILITY” that genocide is taking place. It by no means proves that genocide has actually occurred. Numerous independent platforms dismiss Israel’s defense in the proceedings as “laughable” or “weak” in their headlines.
I have read the 84-page petition and have reviewed Israel’s defense. I have also reviewed what appear to be fairly unbiased reports and analyses of the evidence from both sides. To summarily dismiss South Africa’s case as having “no basis in fact whatsoever” is irresponsible and dishonest. To dismiss Israel’s defense as “laughable” is also irresponsible and dishonest.
Just for the record, I do not place much confidence in the ICJ or its ultimate ruling. I am more interested in the merits of the case as presented in the proceedings. I have some background in trial evidence and standards of proof (wrote a published thesis on it) and I am in the process of sorting out what I think can actually be established, either as near certainty or probability (and what cannot be established). I want to be able to write an informed letter to my Congressional representatives. I also intend to post my findings in my blog in the next day or so. I will provide a link on my Facebook page. For anyone who cares and who hasn’t already allied themselves with one side or the other, stay tuned.
To begin with, I want to preface my observations in response to something I heard on a Youtube discussion of the hearing. The host prefaced his own comments with the disclaimer that he was not a lawyer or legal scholar. I concede that I listened to some lawyers and specialists in international law, and I did get some insights from a couple of them. They especially help when I don’t actually know the law. Having said that, one does not need to be a lawyer to make judgments about the evidence presented and arguments presented by either side and whether they meet the standard of proof required by the court. All one needs is to understand that standard, understand the logic of evidential arguments, and give enough care to what was written and said in light of those two understandings.
This does not mean that my own observations are without error or they couldn’t be better. I might not be that great in my own understanding of the requisite disciplines or skilled in their application. I’ll leave it to my betters to draw their own conclusions. At the very least, I hope to help those who care but who don’t have the time to read the application or who are not confident enough to tackle it get a clearer idea of what is going on so that they won’t be at the mercy of the White House, the corporate media or people like Max Blumenthal.
I have presented the dispute by first summarizing South Africa’s case presented in the 84-page application. This was also that substance of their case when presenting orally before the judges. Then I will present Israel’s defense as it was presented before the judges. Finally, I will present my opinion as to the merits of South Africa’s case and Israel’s Defense.
For readers with some interest in the proceedings but who are not sure they want to read my entire summary, I have provided an abstract that summarizes in several paragraphs my more detailed summary of the cases presented by both sides. My full review and analysis follows after the abstract.
A CRITICAL PERSPECTIVE ON THE ISRAELI GENOCIDE PROCEEDINGS
Abstract
South Africa’s Case
After arguing that the International Court of Justice had jurisdiction over a dispute between South Africa and Israel under the Genocide Convention, of which both nations were signatories, South Africa presented its case alleging that Israel was committing genocidal acts in Gaza. A summery of those acts is presented below.
Those acts include killing them, causing them serious mental and bodily harm and deliberately inflicting on them conditions of life calculated to bring about their physical destruction as a group. Repeated statements by Israeli State representatives, including at the highest levels, by the Israeli President, Prime Minister, and Minister of Defence express genocidal intent. That intent is also properly to be inferred from the nature and conduct of Israel’s military operation in Gaza, having regard inter alia to Israel’s failure to provide or ensure essential food, water, medicine, fuel, shelter and other humanitarian assistance for the besieged and blockaded Palestinian people, which has pushed them to the brink of famine. It is also clear from the nature, scope and extent of Israel’s military attacks on Gaza, which have involved the sustained bombardment over more than 11 weeks of one of the most densely populated places in the world, forcing the evacuation of 1.9 million people or 85% of the population of Gaza from their homes and herding them into ever smaller areas, without adequate shelter, in which they continue to be attacked, killed and harmed. Israel has now killed in excess of 21,110 named Palestinians, including over 7,729 children — with over 7,780 others missing, presumed dead under the rubble — and has injured over 55,243 other Palestinians, causing them severe bodily and mental harm. Israel has also laid waste to vast areas of Gaza, including entire neighborhoods, and has damaged or destroyed in excess of 355,000 Palestinian homes, alongside extensive tracts of agricultural land, bakeries, schools, universities, businesses, places of worship, cemeteries, cultural and archaeological sites, municipal and court buildings, and critical infrastructure, including water and sanitation facilities and electricity networks, while pursuing a relentless assault on the Palestinian medical and healthcare system. Israel has reduced and is continuing to reduce Gaza to rubble, killing, harming and destroying its people, and creating conditions of life calculated to bring about their physical destruction as a group.
South Africa explained that at this time they were not seeking a conviction but merely petitioning the court to order provisional measures, the most important being a cessation of Israel’s military operations in Gaza. In this case, their burden of proof was not evidence that established proof of genocide, but merely a prima facie case that established a plausibility that genocide was very possibly taking place.
The rest of the application then provided details expanding on the summary above. The largest section of the application included multiple instances of acts that constituted evidence of genocide. Among these were cutting off all water, food and medical supplies as well as intentional mass bombing of large sections of urban, heavily populated terrain. But in order to establish that genocide is being committed, it is necessary to show that there is actual intent to commit genocide. Accordingly, South Africa proceeded to provide evidence of that intent by providing quotations from various high-ranking government officials and other inflectional persons in Israeli society showing that genocide was intended as government policy. Finally, they presented evidence to show that those responsible for carrying out operations in Gaza understood that genocide was part of their mission. The strongest evidence was the connection between statements of government officials, including those of Prime Minister Netanyahu, and evidence that Israeli soldiers had accepted those statements explicitly as government policy.
Israel’s Defense
After arguing on procedural grounds that the court had no jurisdiction, Israel’s defense team presented arguments to establish that South Africa’s charges of Genocide were baseless. Their arguments focused along four lines. (1) that Israel historically appreciates the evil of genocide above all nations and is thus least likely to commit it, but that Hamas was clearly guilty of genocide; (3) that Israel had gone to great lengths to minimize civilian casualties but that Hamas had deliberately taken refuge among the people and institutions in Gaza; (3) that the statements made by Israeli government officials were random statements that did not represent government policy. Evidence of Israel’s policy to minimize civilian causalities proves that genocide was not their intent. (4) Finally, Israel argued that the provisional measure of ceasing military operations was absurd because it denied Israel its right to self-defense against a ruthless enemy intent on destroying Israel.
Conclusions
Apart from the attempt to refute the notion they had genocidal intent, Israel’s defense did not seem to address the case against them as presented by South Africa. Consequently, much of South Africa’s case, especially the numerous instances of what appears to be genocidal acts, was allowed to stand unrefuted. Furthermore, Israel’s defense team did not address the explicit connection between the public statements of high-ranking Israeli officials and the actions of those responsible for carrying out government policy.
Unrefuted, these incidents, along with the genocidal statements of Israeli political and military leaders as well as troops in the field, provide more than enough plausibility to the claim of genocide, which is the standard of proof the court requires for an order of provisional measures.
Although I agree with Israel that the provisional measures ordered by the court should not demand a complete cessation of all military operations, it should include strong measures to stop the reckless genocidal talk and ensure punishment of those on the right who incite genocide and in the military who commit it. In light of the agenda of those on the right, possibly including the Prime Minister, to force all Palestinians out of Gaza, the possibility of genocidal intent, either communicated or understood, has to be taken seriously, whether it is explicit government policy or not. Israel’s failure to take any steps to eliminate this talk in the context of extremely high civilian death tolls is inexcusable. Israel needs to clarify its policy and ensure that it is enforced for the world to see.
Furthermore, to be consistent with this transparent policy, Israel should restore water, food and medical supplies. It should modify its operations so that mass bombings and other actions resulting in mass slaughter of civilians are no longer part of their military operations.
A CRITICAL PERSPECTIVE ON THE ISRAELI GENOCIDE PROCEEDINGS
South Africa’s Case
Jurisdiction of the International Court of Justice (ICJ)
Both South Africa (hereafter SA) and Israel are signers of the Genocide Convention and agrees to the terms of the Convention, which provide that SA can bring to the ICJ a dispute between itself and Israel as to whether Israel has violated the Genocide Convention and that Israel is subject to the court’s rulings.
SA provided evidence of a dispute by documenting instances in which it publicly and formally charged Israel with genocidal actions in Gaza. Although Israel did not respond directly to the charges, its Ministry of Foreign Affairs did issue a statement on December 15, 2023 disputing the charges as follows: “[t]he accusation of genocide against Israel is not only wholly unfounded as a matter of fact and law, it is morally repugnant” and “antisemitic”.” (p. 8). Furthermore, SA pointed out that the Convention did not require that the “dispute” be expressed in words, but that its position could be inferred from its actions. (pp 8-9).
Appeal for Provisional Measures
It is important to clarify that objective of the SA’s application to the ICJ at this point was not to prove Israel guilty of genocide. Instead, the goal was to have the ICJ issue orders for provisional measures that would, among other things, call for a cessation of Israel’s military operations in Gaza. The primary goal of the Genocide Convention is to prevent genocide, not punish it. Hence SA’s pursuit of provisional measures to stop the killing in order to prevent genocide in Gaza (p. 9). It is also important to note that the standard of proof for such a hearing is at a lower threshold than a trial for proving genocide. SA’s burden of proof is simply to prove the plausibility that Israel is committing genocide. To do so, instead of having to prove their case beyond a reasonable doubt, all they have to present is a prima facie case, or a case that is sufficient “at first glance” to establish the real possibility that genocide is taking place. This is not enough to prove genocide (as more than one journalist claimed), but is sufficient to stop the fighting so that it can be investigated.
Substance of the Genocide Charges
Although acts that are consistent with those intended as genocidal may indeed be war crimes or “crimes against humanity,” they are not genocidal under the Convention unless they are proven to have genocidal intent. In other words, In Israel’s actions that appear to be genocidal in nature, South Africa must prove that Israel intended to achieve genocide as government policy.
South Africa’s evidence for genocidal intent has two elements. First, they argue that the actions taken by Israel, both by commission and omission, imply genocidal intent. More specifically, its failure to prevent genocidal acts in Gaza as well as its failure to prosecute public incitement to genocidal acts in Gaza both combine to imply the government’s genocidal intent. (p. 3). The genocidal acts in Gaza Israel failed to prevent are further spelled out on page 3 of the application. I reproduce it below because it’s too much to type.
Those acts include killing them, causing them serious mental and bodily harm and deliberately inflicting on them conditions of life calculated to bring about their physical destruction as a group. Repeated statements by Israeli State representatives, including at the highest levels, by the Israeli President, Prime Minister, and Minister of Defence express genocidal intent. That intent is also properly to be inferred from the nature and conduct of Israel’s military operation in Gaza, having regard inter alia to Israel’s failure to provide or ensure essential food, water, medicine, fuel, shelter and other humanitarian assistance for the besieged and blockaded Palestinian people, which has pushed them to the brink of famine. It is also clear from the nature, scope and extent of Israel’s military attacks on Gaza, which have involved the sustained bombardment over more than 11 weeks of one of the most densely populated places in the world, forcing the evacuation of 1.9 million people or 85% of the population of Gaza from their homes and herding them into ever smaller areas, without adequate shelter, in which they continue to be attacked, killed and harmed. Israel has now killed in excess of 21,110 named Palestinians, including over 7,729 children — with over 7,780 others missing, presumed dead under the rubble — and has injured over 55,243 other Palestinians, causing them severe bodily and mental harm. Israel has also laid waste to vast areas of Gaza, including entire neighbourhoods, and has damaged or destroyed in excess of 355,000 Palestinian homes, alongside extensive tracts of agricultural land, bakeries, schools, universities, businesses, places of worship, cemeteries, cultural and archaeological sites, municipal and court buildings, and critical infrastructure, including water and sanitation facilities and electricity networks, while pursuing a relentless assault on the Palestinian medical and healthcare system. Israel has reduced and is continuing to reduce Gaza to rubble, killing, harming and destroying its people, and creating conditions of life calculated to bring about their physical destruction as a group.
The specific violations of the Genocide Convention are enumerated on page 71 as follows.
(a) failing to prevent genocide in violation of Article I;
(b) committing genocide in violation of Article III (a);
(c) conspiring to commit genocide in violation of Article III (b);
(d) direct and public incitement to commit genocide in violation of Article III (c);
(e) attempting to commit genocide in violation of Article III (d);
(f) complicity in genocide in violation of Article III (e);
(g) failing to punish genocide, conspiracy to commit genocide, direct and public incitement to genocide, attempted genocide and complicity in genocide, in violation of Articles I, III, IVand VI;
(h) failing to enact the necessary legislation to give effect to the provisions of the Genocide Convention and to provide effective penalties for persons guilty of genocide, conspiracy to commit genocide, incitement to genocide, attempted genocide, and complicity in genocide, in violation of Article V; and
(i) failing to allow and/or directly or indirectly impeding the investigation by competent international bodies or fact-finding missions of genocidal acts committed against Palestinians in Gaza, including those Palestinians removed by Israeli State agents or forces to Israel, as a necessary and corollary obligation pursuant to Articles I, III, IV, V and VI.
SA’s application provides details and specific examples of each of these charges based on statements and reports by United Nations chiefs and bodies and non-governmental organizations (‘NGOs’), as well as eyewitness accounts from Gaza — including from Palestinian journalists on the ground — in circumstances where Israel continues to restrict access to Gaza by international journalists, investigators and factfinding teams.
These details and examples can be found on pages 30-59. There are too many to review here, so the summary above for the most part will have to suffice for my purposes. However, again it is important to distinguish between reckless, brutal and even criminal actions that can be explained by mere indifference to civilian deaths and those same actions taken with the intent to commit genocide, in other words, to deliberately and intentionally cause those civilian deaths. With this distinction in mind, a couple of specific actions caught my attention as perhaps significant.
Big Dumb Bombs
Israel is said to be dropping ‘dumb’ (i.e., unguided) bombs on Gaza, as well as heavy bombs weighing up to 2,000 lbs (900 kgs), which have a predicted lethal radius “of up to 360m”, and are “expected to cause severe injury and damage as far as 800 metres from the point of impact.” This weaponry is being deployed in one of the most densely populated areas in the world.
It is also claimed that these bombs are being dropped into overlapping grids mapped out so that every square inch of large areas of urban terrain is destroyed. This could possible be explained by criminal indifference to innocent civilian deaths (depending on how Israel attempts to refute or justify it), but on its face, it looks like pretty good prima facie evidence that killing everyone in the area is the intended objective.
The same would appear to apply to Israel’s depriving the entire region of sufficient food, water and medical supplies. However, Israel’s objective in doing this as reported in SA’s application is to force the Palestinians to release the hostages, These actions may be barbaric and criminal, but they are not necessarily motivated by genocidal intent.
In fact none of this by itself of necessarily implies genocidal intent as the only reasonable conclusion, unless of course one already presumes genocidal intent. It can all be explained simply as ruthless and reckless measures taken against a ruthless and reckless opponent who hides among the civilians, often with their consent and even assistance. It is exacerbated by Israel’s generally low regard for the Palestinian people, who occupation and politics have made to be less than human in Israeli eyes. Ruthless and reckless measures taken with relative indifference to human life may constitute war crimes, but they don’t necessarily constitute conclusive proof of genocide. On the other hand,, they may be sufficient to establish the prima facie case necessary for the court to issue provisional measures, especially if there is direct evidence of genocidal intent.
Direct Evidence of Genocidal Intent
In addition to the evidence SA presents as implying genocidal intent, they also presented a series of public statements made by Israel’s prime minister, president, Defense Minister, various cabinet ministers, and other members of the democratic government that they allege to express genocidal intent (pp. 59-67). Because these statements must constitute evidence that the genocidal intent was also government policy, I will put the statements in two categories: (1) those with the authority to state government policy and (2) those who don’t seem to have the authority to state government policy, but who might have the power to influence it. Although I made this distinction before I heard Israel’s defense, it was obvious to me that the value of the various statements as evidence to prove genocide as government policy varied, depending on both who made the statement and what intent could necessarily be inferred from the statement. I will give more attention to this evidence because it potentially carries so much weight in determining genocidal intent.
Finally, I am going to present the statements as they are presented in SA’s application document, although I have changed the organization a bit. I am in no position to evaluate the evidentiary probity of the statement apart from the context in which it was presented. However, I am entitled to question whether the context provided in the application document accurately represents the original context in which the statement was made. The first statement in the list below is a good example of a contextual problem.
Leaders with the authority to state government policy
Prime Minister Netanyahu
On 15 October 2023, when Israeli airstrikes had already killed over 2,670 Palestinians, including 724 children, the Prime Minister stated that Israeli soldiers “understand the scope of the mission” and stand ready “to defeat the bloodthirsty monsters who have risen against [Israel] to destroy us”
The document provides the context of the Prime Minister’s statement as after high civilian death tolls had been reported. However, there is no evidence that consideration of the high number of civilian casualties was the context in which Netanyahu intended his statements to be understood. It may have been what he meant and it may not have. The reader cannot tell from the information provided. And even if it was what he meant, it does not follow that the high civilian kill count was within “the scope of the mission” assigned to them. Netanyahu could have meant that the soldiers understood that they were to accomplish their mission even if it involved large numbers of civilian deaths. In this case, it may be evidence of war crimes sanctioned by the government, but not necessarily those with genocidal intent. In fact, if genocide had been part of “the mission,” the kill count would seem to have been a little low for the PM to praise his troops for a job well done.
It is important to remember the logic of evidential arguments in the case of such statements. If any other interpretation is likely or even possible, then genocidal intent cannot be inferred.
Apart from the context supplied by the document framers, the PM’s reference to “bloodthirsty monsters who have risen to destroy us” seems to refer to Hamas terrorists and not necessarily the Palestinian population in general. This is true unless further evidence is cited that shows the PM believed that Palestinians in general were either bloodthirsty monsters or had risen up against Israel. I looked for the presentation of such evidence but didn’t see it. I reasonably presume that he was talking about Hamas.
“This is the war between the sons of light and the sons of darkness. We will not let up on our mission until the light overcomes the darkness — the good will defeat the extreme evil that threatens us and the entire world.”
These comments were made by PM Netanyahu in a letter to the troops and later reproduced in a tweet. Notice again that the biblical “sons of darkness” allusion probably refers to the Hamas terrorists as he asserts that the evil they represent threatens the entire world. It is unlikely that he would claim that the Palestinian people threaten the world.
“We’re facing monsters, monsters who murdered children in front of their parents . . . This is a battle not only of Israel against these barbarians, it’s a battle of civilization against barbarism”
Once again, the “monsters” and “barbarians” most likely refers to the Hamas terrorists “ who murdered children in front of their parents.”
Destruction of Amalek
On 28 October 2023, as Israeli forces prepared their land invasion of Gaza, the Prime Minister invoked the Biblical story of the total destruction of Amalek by the Israelites, stating: “you must remember what Amalek has done to you, says our Holy Bible. And we do remember” The Prime Minister referred again to Amalek in the letter sent on 3 November 2023 to Israeli soldiers and officers. The relevant biblical passage reads as follows: “Now go, attack Amalek, and proscribe all that belongs to him. Spare no one, but kill alike men and women, infants and sucklings, oxen and sheep, camels and asses”.
Although the other statements by Netanyahu seem pretty tame as evidence of genocidal intent, this cryptic allusion to what seems to be God’s genocidal instructions to King Saul in 1 Samuel 15 is more troubling. There are several references to the Amalekites in the story of the Pentateuch. There is also record of an earlier battle against them in which Israel prevailed (Exodus 17). Later, Israel is instructed to remember the terrorism, or at least guerilla warfare, Amalek waged against them (Deuteronomy 25:17-18). It seems that Amalek is an ongoing threat to Israel within the Pentateuch story. This seems to set the context for the genocide directed in 1 Samuel 15.
It is hard to know for certain what the Israeli Prime Minister intended to communicate by invoking the memory of Amalek. Expectations of genocidal conduct seems to be at lest a plausible inference, albeit not a necessary one.
President of Israel
“It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware not involved. It’s absolutely not true. … and we will fight until we break their backbone.”
This statement seems to be at least prima facie evidence of genocidal intent within government policy. The statement was made in a press conference with foreign journalists in an attempt to explain the large number of civilian causalities. I do not know how much authority the president of Israel has in setting government policy, but his statements at least plausibly indicate what that policy might be. It seems plausible that he is in a position to know, and the fact that he is allowed to make statements to the foreign press suggests that his statements are sanctioned by the government. Again, the ultimate value of these remarks as evidence of genocidal intent depends on the response of the Israeli defense.
However, the strategem of SA in the application of including the following commentary immediately following the quotation above amounts to little more than sophistry. It suggests that I am right in my speculation of why SA included Prime Minister Netanyahu’s statements as direct evidence of genocidal intent: they hoped that more radical statements of others would be conflated with and taint the interpretation of the PM’s statements.
On 15 October 2023, echoing the words of Prime Minister Netanyahu, the President told foreign media that “we will uproot evil so that there will be good for the entire region and the world.”
Although the first statement quoted can fairly be interpreted as an attempt to justify the killing of civilians, this one cannot. Yes, it seems to echo the PM’s statements, but the PM’s statements were not clearly referring to civilians. And neither is this one from the president. However, including this comment as evidence in the same context as the statement that actually did justify the killing of civilians, the writers of the application apparently hope to make Netanyahu appear guilty by association. They hope that the reader will illegitimately associate Netanyahu’s statements together with the obviously more genocidal statements.
Minister of Defense
On 9 October 2023, Defence Minister Yoav Gallant in an Israeli Army ‘situation update’ advised that Israel was “imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals and we are acting accordingly.” He also informed troops on the Gaza border that he had “released all the restraints”, stating in terms that: “Gaza won’t return to what it was before. We will eliminate everything. If it doesn’t take one day, it will take a week. It will take weeks or even months, we will reach all places.” He further announced that Israel was moving to “a fullscale response” and that he had “removed every restriction” on Israeli forces.
Interpreting these statements and assessing their value as evidence of genocidal intent is a bit more complicated. It is difficult to draw a clear line between criminal indifference to human life as the result of prejudice and contempt on one hand and the deliberate attempt to destroy them on the other. There also seems to be a distinction that needs to be drawn between mass punishment of the civilian population as a strategic weapon against the Hamas target on one hand, and the intent to destroy that population on the other. As a critical reader, I could interpret these statements either way. Accordingly, they seem to constitute that plausibility of genocidal intent, but there is no necessary inference to be drawn.
Minister of National Security
On 10 November 2023, Itamar Ben-Gvir clarified the government’s position in a televised address, stating: “[t]o be clear, when we say that Hamas should be destroyed, it also means those who celebrate, those who support, and those who hand out candy — they’re all terrorists, and they should also be destroyed.”
Although SA’s application explains that the minister’s statement was a statement of government policy, I would not conclude that the televised address necessarily carried that function. Perhaps I am wrong. And again, there seems to be a blurred line between a callous attempt to justify ruthless recklessness and indifference to massive amounts of “collateral damage” on one hand, and a calculated program to kill them on the other. The latter would clearly constitute genocidal intent. Although the former almost certainly constitutes war crime, I’m not sure it qualifies as genocide. Granted, it tends to have the same effect, but if intent is a required element in proving genocide, then there seems to be at least a blurred line between the two.
As to the substance of the minister’s words, “those who celebrate, those who support, and those who hand out candy” fails to distinguish between active supporters of Hamas and innocent civilians, especially children. It is clearly impossible for Israel to know whether the civilians they are killing have celebrated and handed out candy. If his statements indicate government policy, then they constitute at least prima facie evidence of genocidal intent.
Israeli Army Coordinator of Government Activities in the Territories (‘COGAT’):
On 9 October 2023, in a video statement addressed to Hamas and Gaza residents, published by COGAT’s official channel, Major General Ghassan Alian warned: “Hamas became ISIS and the citizens of Gaza are celebrating instead of being horrified. Human animals are dealt with accordingly. Israel has imposed a total blockade on Gaza, no electricity, no water, just damage. You wanted hell, you will get hell.”
This statement seems to reflect government policy, since it is made by the person responsible for carrying out the policy. It is clearly targeting the Palestinian people as a whole for collective punishment and identifying them as “human animals.” The question is whether these measures are intended “to destroy, in whole or in part” the Palestinian population or simply punish them for an indefinite period. Granted that either may constitute war crimes, but only the former constitutes genocide. Nevertheless, it seems to serve as evidence that genocide is the plausible intent. And one thing is almost certain, the longer it goes on, the more the intent to destroy the population seems evident. This is one reason SA has submitted the application to the ICJ.
Conclusions
Apart from Prime Minister Netanyahu’s Amalek reference, there isn’t much in these statements from government policy spokesmen that provide clear evidence of genocidal intent. Even Netanyahu’s statement was too cryptic to draw any definite conclusions On the other hand, there seems to be at least prima facie evidence of plausible genocidal intent indicated when all their statements are considered as a whole. Unless the Israeli defense successfully refutes SA’s prima facie case, they seem to have met their burden of proof required for a provisional measures ruling.
Leaders without the authority to state government policy
In addition to the statements made by those who seem to be more indicative of government policy, SA’s application also documented statements by lesser “high-ranking officials.” By “lesser,” I am not referring to rank, but rather their direct involvement in national defense and security. These include cabinet ministers, such as the Minister of Agriculture and Minister of Finance.
Although SA’s application attempts to identify those who make the following statements as “decision makers,” (p. 65), I do not see that as a reasonable inference, let alone a necessary one. The statements of these officials do not necessarily reflect government policy. They very well may reflect the views of the party in power and the position that party recklessly advocates the government adopt as policy, but not necessarily the actual policy that has been adopted. Furthermore, their statements may also be interpreted as apologetic in nature. In other words, they are made with the goal of defending Israel’s reckless and criminal slaughter of civilians after the fact, so to speak. In either case, they are not necessary evidence of genocidal intent as government policy. Either way, these are almost certainly instances of “incitement to commit genocide” under the Genocide Convention. I will provide a sample of the most damning statements below.
“There is no such thing as uninvolved civilians in Gaza”. He also posited a nuclear attack on the Gaza Strip.
“We need to deal a blow that hasn’t been seen in 50 years and take down Gaza.”
“The north of the Gaza Strip, more beautiful than ever. Everything is blown up and flattened, simply a pleasure for the eyes”
The application also documents even more ruthless and radical statements made by leading members of Israel’s parliament and national security advisors. Like “the lesser’ cabinet members, these statements, although fairly clearly advocating genocide, do not necessarily reflect government policy.
“Now we all have one common goal —erasing the Gaza Strip from the face of the earth.
“The people should be told that they have two choices; to stay and to starve, or to leave. If Egypt and other countries prefer that these people will perish in Gaza, this is their choice.”
“Create such a huge pressure on Gaza, that Gaza will become an area where people cannot live. People cannot live, until Hamas is destroyed, which means that Israel not only stops to supply energy, diesel, water, food … as we did in the last twenty years … but we should prevent any possible assistance by others, and to create in Gaza such a terrible, unbearable situation, that can last weeks and months”.
“Gaza will become a place where no human being can exist.”
“Who are the ‘poor’ women of Gaza? They are all the mothers, sisters or wives of Hamas murderers. On the one hand, they are part of the infrastructure that supports the organization, and on the other hand, if they experience a humanitarian disaster, then it can be assumed that some of the Hamas fighters and the more junior commanders will begin to understand that the war is futile . . . The international community warns us of a humanitarian disaster in Gaza and of severe epidemics. We must not shy away from this, as difficult as that may be. After all, severe epidemics in the south of the Gaza Strip will bring victory closer . . . It is precisely its civil collapse that will bring the end of the war closer. When senior Israeli figures say in the media ‘It’s either us or them’ we should clarify the question of who is ‘them’. ‘They’ are not only Hamas fighters with weapons, but also all the ‘civilian’ officials, including hospital administrators and school administrators, and also the entire Gaza population who enthusiastically supported Hamas and cheered on its atrocities on October 7th.
Parliamentarians have publicly deplored anyone “feel[ing] sorry” for the “uninvolved” Gazans, asserting repeatedly that “there are no uninvolved”, that “[t]here are no innocents in Gaza”, that “the killers of the women and children should not be separated from the citizens of Gaza”, that “the children of Gaza have brought this upon themselves”, and that “there should be one sentence for everyone there — death”. Parliamentarians have stated “[w]e must not forget that even the ‘innocent citizens’ — the cruel and monstrous people from Gaza took an active part . . . there is no place for any humanitarian gesture — the memory of Amalek must be protested”, and that “[w]ithout hunger and thirst among the Gazan population, we will not be able to recruit collaborators”. Parliamentarians have also called for “mercilessly” bombing “from the air”, calling for the use of nuclear (“doomsday”) weapons, and a “Nakba that will overshadow the Nakba of 48”.
Conclusions
Once again, although many of these statements clearly reflect genocidal intent on the part of those making them, they do not require the inference that they reflect government policy. Just because Lindsey Graham, John Bolton and other inflectional persons publicly advocate the bombing of Iran, does not mean that “bombs away” is U.S. Government policy.
Having made this clarification, as SA’s application points out,
Those statements by prominent members of Israeli society — including former parliamentarians and news anchors — constitute clear direct and public incitement to genocide, which has gone unchecked and unpunished by the Israeli authorities.
It should be noted that the Genocidal Convention requires punishment of those inciting genocide. The fact that Israel is not punishing them suggests either approval or simply political weakness.
Evidence that genocidal intent was understood by those carrying out government policy
One strong element in SA’s case is the continuity and consistency among the various incitements to commit genocide and the behavior of those responsible for carrying out operations in Gaza.
Aged Reservist Cheerleader
SA’s application arranges the following quotation as that of a policy maker. However, I have arranged it as evidence that the genocidal mission was understood by this old reservist and thought he was fulfilling his part in the mission. He was a 95-year-old veteran called up to “boost morale.” His exhortation below was published on social media.
“Be triumphant and finish them off and don’t leave anyone behind. Erase the memory of them. Erase them, their families, mothers and children. These animals can no longer live . . . Every Jew with a weapon should go out and kill them. If you have an Arab neighbour, don’t wait, go to his home and shoot him . . . We want to invade, not like before, we want to enter and destroy what’s in front of us, and destroy houses, then destroy the one after it. With all of our forces, complete destruction, enter and destroy. As you can see, we will witness things we’ve never dreamed of. Let them drop bombs on them and erase them.
SA’s application does not provide any information about the social media site or to what extent Israeli soldiers had access to it. Was it an official government or army site? Was it required viewing? We are not told. SA characterizes the social media post as a “broadcast,” but I am not sure what that means. So to what extent his sermon incited the troops to genocide (as the application claims) is not at all clear. But at least one soldier thought the mission was genocide.
Israeli Army Colonel, Deputy Head of COGAT:
Speaking in a video filmed in Beit Lahia ,,, and broadcast on Israeli television on 4 November 2023, Colonel Yogev Bar-Sheshet stated: “Whoever returns here, if they return here after, will find scorched earth. No houses, no agriculture, no nothing. They have no future;” another Army Colonel recorded in the same video, Colonel Erez Eshel (Reserve), also commented that: “Vengeance is a great value. There is vengeance over what they did to us … This place will be a fallow land. They will not be able to live here”.
Israeli Soldiers
Israeli soldiers in uniform have been filmed on 5 December 2023 dancing, chanting and singing “May their village burn, May Gaza be erased”; and, two days later, on a separate occasion inside Gaza on 7 December 2023, dancing, singing and chanting, “we know our motto: there are no uninvolved civilians” and “to wipe off the seed of Amalek”
Conclusions
I actually saw a video of this celebration played on Judge Andrew Napolitano’s podcast even before I read SA’s application. It seems to be the most damning in that it connects the words of several government spokesmen with the soldiers understanding of their mission. The statement that the soldiers have adopted as their motto is one that has reportedly been repeated among numerous members of their parliament, urging Israelis not to feel sorry for the civilians in Gaza: “There are no uninvolved civilians in Gaza.”
But even more telling is the second element in the motto: “to wipe out the seed of Amalek,” apparently invoking the exhortation of Prime Minister Netanyahu. Although more investigation will be necessary to see how extensive this understanding was among Israeli soldiers, this video, especially combined with all the other evidence presented by South Africa, seems to be more than enough to establish a prima facie case that genocide was understood to be government policy, and hence, the plausibility that Israel is carrying out a genocidal campaign in Gaza.
Israel’s Defense
Although I would not characterize Israel’s defense as “laughable,” it did seem to be incredibly perfunctory and didn’t take the charges or the case against them seriously.
South Africa in league with Hamas
Although there was no evidence of this, even if it could be established, it is irrelevant. The only thing relevant is the substance of South Africa’s case. That Israel would include this in their defense does not speak highly for the merits of their defense.
ICJ does not have jurisdiction
Israel argued that the ICJ does not have jurisdiction because the controversy being heard by the court doesn’t qualify as a dispute between South Africa and Israel. It doesn’t count as a dispute because Israel did not formally communicate with Israel’s government alleging their violations of the the Genocide Convention and Israel did not formally deny those allegations.
This is a procedural challenge and seems weak given the tact that it was specifically addressed on pp 7-8 of the application (see Jurisdiction of the International Court of Justice on p. 2 of this analysis above)
No genocide under convention
Israel argued that its actions in Gaza does not constitute genocide under the convention. The convention was adopted only to “address a malevolent crime of the most exceptional circumstances,” and was “not designed to address the brutal impact of intensive hostilities” on civilians during warfare. Israel dismissed South Africa’s case as an “attempt to weaponize the term ‘genocide’ against Israel.”
Israel repeated its argument that regrettable civilian losses are not comparable to genocide. Those losses were a result of Israel’s dealing with a ruthless enemy that uses even children as human shields, embedding fighters in schools and hospitals.
This argument does not address SA’s charges. Genocide is defined under the Convention, and SA has charged Israel with specific violations of that convention. Although it is true that the Convention was “not designed to address the brutal impact of intensive hostilities” on civilians during warfare, SA has argued that the “brutal impact of intensive hostilities” on civilians goes beyond those that might be justified by warfare against a ruthless enemy using civilians as human shields. SA detailed instances of Israel’s military actions that seem to show utter disregard for civilian casualties. They also presented evidence of genocidal intent.
Hamas committed genocide
Israel shared multimedia evidence of the “carnage and sadism” committed by Hamas terrorists. They also presented clear evidence of the “genocidal intent” the Hamas leadership, including that fact that Hamas’ founding charter mandates the killing of Jews and the destruction of Israel.
Although is accurate to charge Hamas with genocidal intent and acts, it is not relevant. Hamas is not on trial. Again, the only relevant defense is to address the facts at issue in South Africa’s case.
Right to self defense
Israel claimed their right to self-defense. It is unclear whether this was offered in defense of their genocidal acts against the Palestinian people or whether it was addressing the unreasonableness of the provisional measures sought by SA, which included cessation of military activities. If the former, it is irrelevant. Israel’s enemy combatant is Hamas, not the Palestinian people, and especially not women and children. If Israel was arguing against the requested provisional measures, then they seem to have a point. It seems likely that the court should adjust the provisional measures so that Israel can defend itself against Hamas.
Dismissive of death toll estimates
Israel also challenged the credibility of the death toll claims since they came from the Palestinian government, which is led by Hamas. This seems to be valid as far as it goes, but it didn’t go very far. I don’t believe Israel offered alternative numbers. Furthermore, Israel’s own numbers in the past have not been that far off from those oof Hamas. Finally, SA offered evidence from multiple UN groups and NGOs in Palestine. Although they did cite the Palestinian government’s numbers, they did not rely exclusively on them.
No Genocidal Intent
Israel’s defense team dismissed the various statements by Israeli officials as evidence of genocidal intent. They argued South Africa’s attempt to prove Israels intent to “destroy” the Palestinian people is based on “random assertions” within and without Israel’s government. They further argued the government’s actions taken to reduce impact on civilians prove that there was no genocidal intent in official policy
Statements by Israeli government official inciting genocide
Israel’s defense team argued that the language from the officials was merely “rhetorical” and pointed to other statements by Netanyahu urging care not to harm civilians, which, they argued, “demonstrates the precise opposite of genocidal intent.” The statements by various Israeli officials were made by those on the far right who do not represent government policy.
Measures taken by Israel to minimize civilian casualties
Israel’s Defense argued that Israel may have actually gone beyond what is required in humanitarian precautions, such as by giving warnings to civilians before bombings. According to the Defense, Israel has issued orders and has taken serious measures to avoid civilian casualties, but Hamas has tried to take refuge among the civilian population and institutions.
It seems to me that there are three key issues in evaluating the validity of this defense:
(1) Random rhetorical statements by the far right which do not express government policy
This defense is plausible. Its greatest weakness is in the statement by Israel’s Prime Miniister. Netanyahu, who seems to be identified with the far right, is on record as having appealed to an instance of genocide in the Hebrew Bible and seemingly exhorted Israeli forces to imitate that example.
(2) Evidence that Israeli forces understood genocide to be government policy
There seems to be evidence that Netanhayu’s statements and those of others have been understood by members of the Israeli military to be government policy. See pages 9-10 above.
(3) General acceptance in Israel of genocidal rhetoric
Although Israel has taken measures which seem to be intended to minimize civilian casualties, they seem not to have taken any steps to prosecute and punish statements by those on the far right, both in and outside of government. Neither has it prosecuted instances of genocidal acts in the field. In fact, there seems to be an attitude of acceptance of this genocidal talk within the government.
At the very least, there remains evidence unrefuted by the Defense that Israel has violated the Genocide Convention by failing to punish genocidal acts and by failing to punish public incitement to genocide, and by failing to punish complicity in committing genocide (see page 3above). And again, Netanyahu’s “Amalek” statements and the video of soldiers dancing and singing about their Amalek motto seems to be compelling prima facie evidence of genocidal intent requiring further investigation.
‘Absurd’ provisional measures
One of Israel’s lawyers argued the South Africa’s demand that Israel cease military activities in Gaza ignores the imminent and ongoing threat by Hamas, which Israel has a legitimate interest in continuing to counter with military means. Another defense team lawyer argued that provisional measures ought to be a “temporary shield” to preserve rights, but those requested by South Africa were being used as “a sword to give an advantage to one party in a conflict over another.” He went on to argue, “It’s absurd to suggest that the only way to ensure observance of the genocide convention in a military operation is to prevent the operation from being conducted at all.
I tend to agree with this element in Israel’s defense. Although South Africa requests provisional measures which order Israel to cease its “genocidal acts” in Gaza, it has not proven with certainty that such acts have occurred. The burden of proof for genocide is greater than that for proving war crimes or crimes against humanity. But this is a hearing on the charges of genocide.
Conclusions
Having said that, the burden of proof for issuing provisional measures does not require providing satisfactory and sufficient evidence that genocide is actually occurring. It only requires a prima facie case sufficient to establish the plausibility that genocide is taking place. Most of South Africa’s case still stands unrefuted. I offer a summary by the LA Times with which I tend to agree.
Notably absent, though, was any direct refutation of the specific events identified by South Africa in its pleadings, such as summary executions of entire families including children, and sniping on fleeing civilians. Unrefuted, these incidents, along with the genocidal statements of Israeli political and military leaders as well as troops in the field, provide more than enough plausibility to the claim of genocide, which is the standard of proof the court requires for an order of provisional measures.
Although I agree with Israel that the provisional measures ordered by the court should not demand a complete cessation of all military operations, it should include strong measures to stop the reckless genocidal talk and ensure punishment of those on the right who incite genocide and in the military who commit it. In light of the agenda of those on the right, possibly including the Prime Minister, to force all Palestinians out of Gaza, the possibility of genocidal intent, either communicated or understood, has to be taken seriously, whether it is explicit government policy or not. Israel’s failure to take any steps to eliminate this talk in the context of extremely high civilian death tolls is inexcusable. Israel needs to clarify its policy and ensure that it is enforced for the world to see.
Israel should also be ordered to allow water, food, medical supplies and other humanitarian aide into the country. Systematic bombing of large grides of urban terrain should cease. Israel should also be ordered to allow foreign journalists and UN investigators into Gaza. The UN should be allowed too monitor Israel’s activities in Gaza.
Although these provisional measures may be viewed by some as weak, it must be remembered that mass murder and criminal disregard for civilian Palestinian life is not what Israel is on trial for. It seems well established that Israel is guilty of slaughtering tens of thousands of civilians, but this could be from criminal recklessness and apathy. Genocidal intent has not been proven. I cannot see how cessation of all military activities can be justified by the court.
And I’m not sure that it matters. The ICJ’s authority extends only as far as its rulings can be enforced. Israel could ignore orders it felt unrealistic. That is partially why I think more moderate and reasonable provisional measures be ordered by the court. Both the court and its provisional measures stand a better chance of being taken seriously by Israel and its patrons.
Fightin' Words 