The flaws in the genocide case against Israel The evidence omitted key words and context

Shortly after the ruling, South Africa’s Foreign Minister said: “We think [the ICJ finding] makes it clear that it is plausible that genocide is taking place against the Palestinian people in Gaza. This necessarily imposes an obligation on all states to cease funding and facilitating Israel’s military actions.” Similarly, the BBC’s Jeremy Bowen claimed that the ICJ ruled that Israel faces “plausible” allegations that it is committing the crime of genocide against Palestinians in Gaza.

The court made it expressly clear that all it is required to do at this stage is ascertain whether South Africa’s allegations, if true, fit the definition of genocide in the Convention. The issue of “plausibility” arises because the court has in recent times expanded its power to issue provisional orders preserving the respective claimed “rights” of the parties pending the outcome of the actual trial “if the rights asserted by the party requesting such measures are at least plausible”.

What that means in English is that the Court can intervene if something seems plausible to it. Since lawyers are trained to sound plausible when asserting whatever nonsense their clients would like to put forward, the standard on which this court purports to act is, to put it neutrally, rather low. It is, as this case demonstrates, an invitation to lawfare by litigious busybodies for whom a cheap propaganda victory is achieved by meeting the low bar of “plausibility”. Say “plausible” often enough and it sounds a bit like “credible”.

In its consideration of plausibility, the court in this case began by reminding itself that the crime of genocide under the Genocide Convention (which was the only basis of the court’s authority) requires that the actions in question be committed with the intention “to destroy, in whole or in part, a national, ethnic, racial or religious group as such”. War carried out in self-defence, or even for bad reasons, no matter how destructive and lethal, is not to be characterised as genocidal unless that is the intention of the perpetrator. All war would be genocidal if it only requires that the casualties and destruction be great, and the crime of “genocide” would cease to have any meaning.

In this case, an assertion, even by a lawyer, that Israel is carrying out a genocide with the intention of eliminating all the population of Gaza, would seem somewhat implausible given common sense and the uncontested reality of the situation. Despite several wars and clashes, the population of Gaza increased from 394,000 in 1967, when Israel captured the area in the Six Day War, to well over 2 million in 2023. With regard to the current war alone, Israel has the military and technical means to flatten Gaza entirely in one day and kill all its inhabitants. If genocide were its intention, why bother spending billions of dollars on a war involving a ground invasion which has tanked its economy, and resulted in thousands of its own casualties both killed and injured?

Astonishingly, in reaching its conclusion that South Africa’s allegations were “plausibly” capable of falling with the Genocide Convention, the Court deliberately avoided considering the issue of Israel’s intention at all.

Instead, the Court first referred to the death toll in the conflict, and the resulting dreadful conditions of life for the residents, as described by various UN functionaries. On the figures, it cited reports by the UN Office for the Coordination of Humanitarian Affairs (OCHA), which claimed that, at the time of South Africa’s application, 27,500 persons out of a population of more than 2 million had been killed in Gaza since 7 October, and many more injured. OCHA gets its figures exclusively from the Gazan Ministry of Health; OCHA notes that “It is nearly impossible at the moment to provide any UN verification on a day-to-day basis.” It is fair to consider the Gazan Health Ministry as being an emanation of Hamas, which has been the sole authority in Gaza since its seizure of power almost 20 years ago, eliminating its opponents. Perhaps the court thought it would not be a good look to cite Hamas itself as the source of the evidence, even when considering so low a bar as “plausibility”.

But even if we accept these figures as plausible, let’s also observe that this figure conflates militant and civilian deaths, as well as deaths caused by missiles and rockets fired by Hamas but falling short within Gaza itself. This is an obvious point, and really only bears repeating because one judge claimed in his judgment that “more than 25,000 civilians have reportedly lost their lives as a result of Israel’s military campaign”.

It’s not clear at all how one gets from stating casualty figures such as these, and the describing the awful conditions of war, to a finding that South Africa plausibly has rights to complain about under the Genocide Convention without some consideration of intentionality, which the court deliberately eschewed. Some reports claim that, for example, during the campaign to clear Isis from the city of Mosul in Iraq in 2017, which involved US and UK air support, 40,000 civilians were killed. All the rest fled. A plausible case of genocide?

In place of dealing with the essential issue of Israel’s intentions, the court cited, and then riffed off on, a statement by the head of the United Nations Relief and Works Agency (UNWRA) which said that the crisis in Gaza is “compounded by dehumanising language”. In this regard, the court singled out three examples of “dehumanising language” by Israeli officials: Yoav Gallant, the Defence Minister, the only one of the three who is a member of the War Cabinet, and thus responsible for the conduct and objectives of the war; President Herzog, a noted lifelong liberal, and the then Minister of Energy, Israel Katz.

South Africa had placed great emphasis in its written and oral submissions on what Mr Gallant is alleged to have said to soldiers on 9 October (two days after the massacre), of which the court duly “took note”:

South Africa’s written representations quoted short extracts from various video clips of Gallant and claimed that he had made the following statements, which were dramatically read out at the oral hearing:

1. “I have released all restraints”.
2. “We are fighting human animals and we are acting accordingly.”
3. “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”

The problem is that all three quotations are incomplete: the South African legal submissions omitted the qualifying phrases or words which show what Mr Gallant was really talking about. Below I have inserted numbers in the court’s collected passage to indicate the three separate South African quotations above, and I have rendered the South African omissions in bold:

1. “I have released all restraints… We are activating everything. We are taking off the gloves. We will kill anyone who fights against us.”
2. “You saw what we are fighting against. We are fighting human animals. This is the Isis of Gaza. This is what we are fighting against…”
3. “Gaza won’t return to what it was before. There will be no Hamas. 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.”

As Yair Rosenberg pointed out in The Atlantic, where you can check all these references for yourself, by removing these references to “the Isis of Gaza”, “those who fight against us” and ‘There will be no Hamas’, South Africa turned a specific threat against Hamas into a general unspecific threat, enabling it to argue that Gallant was threatening genocide and using dehumanising language against Palestinians in Gaza generally. Moreover, Rosenberg adds, there are plenty of examples of Gallant making clear what his intentions were around that time:

“On October 8, Gallant declared, “Hamas has become the ISIS of Gaza. In this war, we are fighting against a murderous terrorist organization that harms the elderly, women, and babies.” On October 12, the defence minister told NATO, “The IDF will destroy Hamas.” On October 27, while urging Gazan civilians in the north to evacuate to the south, Gallant said, “We are not fighting the Palestinian multitude and the Palestinian people in Gaza.” The list goes on. The only way to misunderstand Gallant’s intentions is to ignore pretty much everything he has said on this subject.”

The second Israeli politician quoted was Israel Katz, then Minister of Energy and a prolific tweeter. (He would do well to remember Lord Cameron’s aphorism, that “too many tweets make a tw*t”.) He was replying on X to Alexandria Ocasio-Cortez, a member of the United States House of Representatives, who takes a keen interest in Israel. He tweeted: “We will fight the terrorist organization Hamas and destroy it. All the civilian population in [G]aza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.”

South Africa left out the sentence in bold which clearly enunciates Katz’s stance. In fact, it’s the only part of his tweet that makes any sense. The rest is baffling, not genocidal; I assume English is not his first language. How can anyone who has “left the world” receive water and batteries?

The only other Israeli politician whose utterances were referred to by the court was an astounding choice in itself: Israel’s President Isaac Herzog. Israel’s presidency is ceremonial; Herzog is not part of its War Cabinet, and he does not determine Israeli war policy. In the course of a lengthy live press conference held by the President on 12 October 2023 he said this (with the words in bold omitted from South Africa’s submissions):

“First of all we have to understand there is a state, there is a state, in a way that has built a machine of evil right at our doorstep. It’s an entire nation out there that is responsible. It’s not true, this rhetoric about civilians not aware not involved, it is absolutely not true. They could have risen up, they could have fought against that evil regime which took over Gaza in a coup d’etat, murdering their family members who were in Fatah… Israel evacuated Gaza. I was a member of the cabinet… We are working, operating militarily according to rules of international law period. Unequivocally. But we are at war…”

Nineteen minutes of the press conference can be seen in the video embedded in this article cited. In the course of it, he specifically denies that innocent civilians are legitimate targets and repeatedly states Israel’s commitment to acting in accordance with international law. His comments on civilians are an attempt to explain why innocent civilians are inevitably going to be harmed when fighting terrorists embedded amongst civilians. It is difficult to think how any of that could fairly be characterised as “dehumanising language”, let alone as evidence of an intention to commit genocide whilst simultaneously operating “according to the rules of international law”.

By now you will have got the picture: every quotation emanating from South Africa’s representatives which was relied on by the Court as “dehumanising language” omitted key words and context that rendered the meaning of the quotation different from, if not the exact opposite of, what South Africa had asserted.

There is a further strange feature of all this. Although South Africa omitted the qualifying, emboldened words in all of these quotations, somebody subsequently inserted some of the missing words which I have highlighted into the court’s own citation, thus rendering its conclusions completely absurd. Why is it evidence of genocidal intent, or of use of “dehumanising language” for Mr Gallant to say that Hamas are human animals, or that there will be no Hamas in the future of Gaza, or that Israel will kill those who fight against it in the war?

Rosenberg suggests one possibility (or should I say, plausibility), namely, that the judgment was originally based on the misleading South African quotes but that someone in the course of preparation later noticed some of the errors and inserted some of the missing words without drawing it to the attention of the judges, who did not change their opinions even though the quotes as eventually printed contradict their conclusions.

Apart from this highly unsatisfactory account of what Israeli politicians actually said, the ICJ took note of a statement by 37 Special Rapporteurs, Independent Experts and officials or representatives of the United Nations Human Rights Council (UNHRC) in which they “voiced alarm over ‘discernibly genocidal and dehumanising rhetoric coming from senior Israeli government officials’”. It is not at all clear from the list of “experts” what expertise they possess in relation to issues of genocide, or why their opinions should be taken into account rather than those of experts less biased in relation to Israel’s plight.

It certainly would have rendered its decision to rely on these “experts” less convincing if the court had drawn attention to another passage in the same press release from these 37 “experts” where they assert that Israel has no right to wage war in self-defence after the attacks of 7 October because “Israel remains the occupying power in the occupied Palestinian territory, which also includes the Gaza Strip, and therefore cannot wage a war against the population under its belligerent occupation”. Israel completely withdrew from Gaza almost 20 years ago.

Perhaps conscious of this flawed basis of its finding of “plausibility”, the court did not issue the main order which South Africa had requested, namely: “The State of Israel shall immediately suspend its military operations in and against Gaza.” One can only presume that by this formulation South Africa intended to leave Hamas free to continue its operations inside Israel unopposed.

In fact, of the six orders the ICJ in fact issued, the first three were rightly described by the dissenting judge (Judge Sebutinde of Uganda) as effectively just mirroring the obligations on Israel imposed by the Genocide Convention itself, and thus unnecessary, namely:

• Israel was ordered, in accordance with its obligations under the Genocide Convention, to take all measures within its powers to prevent all acts within the scope of the Convention,
• to ensure that its military does not commit such acts, and
• to take measures to prevent and punish incitement to commit genocide of the Palestinian people.

The fourth order — to take measures to enable the provision of urgently needed basic services and humanitarian assistance to the Gaza Strip — was unnecessary as Israel had already informed the court of the arrangements being made in this connection, and the fifth order — to prevent the destruction of evidence — was plainly unjustified. As Judge Sebutinde pointed out, there was no evidence to suggest that Israel was engaged in destroying evidence. She also derided the absurdity of requiring one party to a conflict (Israel) unilaterally to ensure evidence was not destroyed whilst leaving the other (Hamas) “free to carry on unabated”. The court also ordered Israel to report back on its compliance with these orders within a month, with South Africa given an opportunity to respond. The lawfare continues.

Judge Sebutinde also made this interesting observation: “It was brought to the attention of the Court that South Africa, and in particular certain organs of government, have enjoyed and continue to enjoy a cordial relationship with the leadership of Hamas. If that is the case, then one would encourage South Africa as a party to these proceedings and to the Genocide Convention, to use whatever influence they might wield, to try and persuade Hamas to immediately and unconditionally release the remaining hostages, as a goodwill gesture. I have no doubt that such a gesture of goodwill would go a very long way in defusing the current conflict in Gaza.” That the court chose not to order South Africa to do so, is telling, particularly since the court had specifically recorded that it had the power to issue orders other than those requested by the parties. If there is one thing which would bring hostilities to an end it is the release of the hostages.

As the novelist Howard Jacobson has said regarding Israel and its opponents, the words “genocide, ethnic cleansing, apartheid, settler-colonialism… simply flutter like so many pennants at a medieval joust. Denoting, in the fading light, which side you’re on, no more”. By issuing even its very limited order based on a foundation as flimsy as this one, the ICJ has achieved nothing more than showing which side it’s chosen. That is at least plausible, isn’t it?