Could the country representing the survivors of the greatest genocide in modern history be guilty of the same crime just 80 years after the Holocaust? That is what South Africa is claiming, and the International Court of Justice is convening this week to consider it.
In offering a primer on the charged situation at the Hague, I'll start with the ending: The genocide charge is spurious despite the huge death toll in Gaza, and the International Court of Justice (ICJ) is both political and toothless; yet the proceedings could be impactful because of the toxic election year in the US.
Sound confusing? Read on.
What on earth is the ICJ?
The average reader might assume that this is the same court that hauled in Serbian miscreants Slobodan Milosevic and Radovan Karadzic—but that's the International Criminal Tribunal for the Former Yugoslavia. Is it the court that issued a genocide arrest warrant against Sudanese President Omar al-Bashir and more recently has a warrant out for Vladimir Putin? Nope—that's the International Criminal Court (ICC).
The ICJ, like the others, is housed in The Hague, but unlike them it's toothless and highly political. The 15 judges don't need to be actual judges and are appointed along a regional formula guaranteeing global balance of interests and perspectives.
To understand just how toothless the ICJ is, consider the case of Azerbaijan, which 13 months ago started blockading ethnic Armenians in disputed Nagorno-Karabakh. The ICJ last February ordered the blockade lifted immediately. The order was ignored, the blockade was tightened in June, Azerbaijan attacked the starving population in September and all 120,000 people fled. Azerbaijan paid no price.
The only way a country can be punished for ignoring the ICJ is if the UN Security Council takes action, but the Security Council is itself political and anything interesting is likely to be vetoed by one of the five permanent members. Especially if the country in question has oil and natural gas at a time of global disruption in those markets.
What can the court do?
The actual case could drag on for months and years, but the court certainly could quickly issue a temporary injunction against Israel. The range is broad. It could require Israel to be more mindful of humanitarian needs in Gaza, or to investigate statements by radical lawmakers that could be interpreted as calls to illegal action. The nuclear option would be an injunction demanding an end to the fighting and a pullout from Gaza.
If the latter happens, Israel will ignore it. But this will give momentum to Israel-haters in every country and could end up costing it on all fronts, curtailing trade and commerce and its various interactions with the world.
Moreover, there is every chance that the matter ends up before the Security Council where there will certainly be a majority in favor and the United States will be expected to veto. Such a veto would be very costly for President Biden. He has been hammered for standing by Israel and is bleeding critical support among minorities and progressive youth who have little patience for Israel's narrative.
Israel has ignored Biden's pleas to spell out a plausible endgame, and this seeming indifference to Biden's problems is such howling ingratitude that one might suspect Prime Minister Benjamin Netanyahu of trying to cause Donald Trump's return to the White House. Cynical? It's such a fine line between a cynic and a realist.
Is the genocide charge real?
The ICJ was set up by the United Nations and must take into account the UN's own definition of genocide as it appears in the Genocide Convention, a document approved by the UN General Assembly in 1948.
Genocide is not defined as a mass killing, as most people might think, but something entirely different: "Acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group"—including killings as well as "causing serious bodily or mental harm" and "imposing measures intended to prevent births" or "forcibly transferring children of the group to another group." Broad, and odd.
The key is "intent" to harm members of a specific group on account of their membership. By that definition Oct. 7, in which the governing authority of Gaza invaded Israel with thousands of armed men, massacring 1,200, burning to death babies, torturing and raping pregnant women, and kidnapping about 250 people, is clearly genocide.
Israel's response to this attack, while far deadlier at more than 20,000 and counting, is not genocide, because Israel's intent is to return the hostages and remove the genocidal Hamas government from power. Fulfill those conditions and not one Gazan will be killed. Moreover, Israel's beseeching of the civilian population of Gaza to leave the area of the fighting is further evidence that its desire is not to kill innocents.
If Israel's operation in Gaza is genocide, then so was the U.S.-Iraqi operation in Mosul to remove ISIS, which killed many thousands of civilians for the same reason: as in Gaza the jihadis were dug in among them. So, by the way, was the WWII firebombing of Tokyo, the obliterations of Dresden and Hamburg, and the atomic bombs dropped on Hiroshima and Nagasaki.
The genocide charge is rich, by the way, coming from South Africa—the country which a few years ago refused to arrest Sudan's Omar al-Bashir despite the genocide warrant issued by the ICC. South Africa managed to be quite sanguine about a real genocide when it was politically expedient.
If Israel is wise, it will make those points in its rebuttal on Friday, and also make clear that it is indeed willing to end the war.
How can the war end?
It is very important that Qatar this week reportedly proposed that the Hamas leadership in Gaza go into exile and cough up the remaining 140-odd hostages (some of whom are believed to be dead) in exchange for an end to the war.
That will not be enough for Israel because there is no way it will allow Hamas, which has vowed to repeat Oct. 7 whenever it can, to remain in power. Removing it is a favor to the Gazan people and should be an imperative understood by anyone who understands anything in the world.
But the exile idea can be an accelerator that brings closer an appealing deal that I have proposed on these pages. By restoring a new and improved Palestinian Authority to power in Gaza, and forcing Hezbollah to pull back from Israel's norther border, there is a chance for success. Israel would probably have to accept restarting talks on Palestinian statehood, with a sweetener being peace with Saudi Arabia (a deal that appeared imminent and was derailed by the Hamas massacre).
A wiser Israel would be pushing for this with all its might. Instead, the victim of one of the greatest terrorist attacks in history finds itself in a sort-of trial for genocide.
Part of the reason is antisemitism. Part of the reason is the ignorance and vapidity of the global progressive movement that gets its knowledge from TikTok and sees the world in black and white. And part of the reason is Israel itself—its political dysfunction, strategic blundering, and epic failure of public diplomacy.
The Israeli government has refused to lay out a plausible endgame in Gaza because Netanyahu, who is on trial for bribery, is dependent for his feeble parliament majority on ultranationalists who oppose anything but force. Those same radicals insist on continuing Israel's settlement shenanigans in the West Bank and have also generously provided South Africa with extremist rhetoric to insert into its brief.
There's a lesson in all this for the U.S. and other countries about to vote in 2024: elect idiots and you get idiocy, which can be very, very expensive.
Dan Perry is managing partner of the New York-based communications firm Thunder11. He is the former Cairo-based Middle East editor and London-based Europe/Africa editor of the Associated Press. Follow him x.com/perry_dan and at danperry.substack.com.
The views expressed in this article are the writer's own.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
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