The ICJ and the crime of genocide

January 12, 2024 by Ran Yaakoby
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The definition of genocide was coined in 1944 by Jewish Lawyer Raphael Lemkin, who promoted the establishment of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide of 1948, in the aftermath of the Holocaust committed by the Nazis against the Jewish people during WWII.

Ran Yaakoby

Often seen as the “crime of crimes”, genocide is defined by the special intent to “destroy, in whole or in part, a national, ethnical, racial or religious group”.

Nonetheless, as the ICJ itself has previously made clear, the use of force, even on a significant scale, “cannot in itself constitute an act of genocide.” This distinction is crucial in understanding the Genocide Convention’s proper application. The proliferating misuses of claims of genocide are worrying and threaten to denude the term of its special status. If every war is a genocide, the term becomes meaningless. It will also harm the Genocide Convention should states withdraw from it to avoid its weaponisation against them.

On October 7th, Hamas and other terrorist groups initiated a war against Israel and perpetrated unprecedented savagery, including the murder, torture, rape and mutilation of over 1,200 Israelis and the taking hostage of 240 people, including infants, elderly and sick. Hamas’ atrocities are in total violation of International Humanitarian Law, as is its brutal treatment of the hostages, still being tortured and denied any access by the ICRC. Israel’s actions, grounded in self-defence and in strict adherence to international law, stand in stark contrast to the reckless misuse of terms like ‘genocide.

Predictably, in accordance with its right and obligation to defend itself and its citizens, Israel had to respond forcefully, seeking to secure the release of its infants, children, women, and men being held as hostages in Gaza, and to deny Hamas and other armed groups in Gaza the capacity to continue attacking its citizens and territory as they have explicitly vowed to do “again and again and again”.[1] 

Israel’s use of military force, strictly within the bounds of international law, for the legitimate self-defence of its citizens, aligns with the principles that New Zealand also upholds in matters of national and international security. Israel has been consistent in explaining that the IDF is targeting the terror operatives and military infrastructures and not the Palestinian civilians.

The intense fighting and scope of the civilian damage in Gaza is in large part the outcome of Hamas’ strategy to embed its combatants within the civilian population of Gaza, including in mosques, hospitals, schools, and UN facilities, which constitute obvious war crimes. Hamas abuses civilians as human shields and strives for a high casualty count to galvanise public opinion against Israel. This tactic not only endangers innocent lives but also distorts the perception of Israel’s defensive actions, potentially leading to misinterpretations such as genocide allegations, put forward by various activists.

Israeli forces are compelled to fight an asymmetric war in a dense urban landscape that Hamas prepared for that purpose for over a decade, in particular by using an unparalleled tunnel network deployed beneath civilian areas.

On the 29th of December 2023, South Africa filed an application with the International Court of Justice instituting proceedings against Israel, alleging that Israel is committing genocide. The misuse of the Genocide Convention against Israel is an outrage.

South Africa bases its case on two claims, neither of which stands up to serious scrutiny. The first is the scale of civilian death and destruction in Gaza. There is no doubt that the war in Gaza has been devastating for the civilian population. However, it’s essential to recognize that the tragic consequences of war do not equate to genocide without clear, irrefutable evidence of specific intent. The second are various statements by Israeli officials or former officials, which they claim prove necessary special intent of committing genocide. The various quotes used to suggest Israel has the intention of committing genocide are not convincing. They do not reflect Israel’s actions in practice, and many were said in the emotional aftermath of the mass slaughter and horrific atrocities committed on October 7th, an event that would shake any civilised country to the core. It would have been better had they not been said, but they are a far cry from any reasonable proof of intent. Moreover, they are a very selective collection of cherry-picked statements, ignoring numerous statements by Israel’s top political and military leaders clarifying Israel’s actual and official policies of minimising harm to civilians and ensuring humanitarian aid.

The true evidence contradicting any intent to commit genocide is Israel’s unwavering and continuous efforts to facilitate humanitarian aid (around 6,500 trucks since the beginning of the war) and the robust measures to minimise civilian casualties, including warnings of attacks and precautionary measures which often increased the risk to its own forces. Indeed, the USA’s NSC spokesperson stated that Israel “has published online maps of places where people can go or not to go. That’s basically telegraphing your punches, and there’s very few modern militaries in the world that would do that. I don’t know that we would do that.”[2] This is hardly genocidal intent.

With the Holocaust as a backdrop and Israel’s attachment to the values sanctifying life, the claim of genocide is especially painful against Israel. It is a modern case of the ancient harmful trope of blaming the Jews with the very crimes committed against them. Hearing and reading such tropes on social media platforms, here in NZ, is alarming, to say the least. It is in New Zealand’s best interest, a nation respected for its careful and principled stance in international affairs, to avoid hastily endorsing a misinterpretation of such a grave term as genocide, which could undermine the integrity of international legal standards.

[1] https://www.gov.il/en/Departments/General/swords-of-iron-faq-6-dec-2023#1

[2] https://www.whitehouse.gov/briefing-room/press-briefings/2023/12/13/press-briefing-by-press-secretary-karine-jean-pierre-and-nsc-coordinator-for-strategic-communications-john-kirby-33/

Ran Yaakoby is Israel’s ambassador to New Zealand

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