"Ok, you want to know from a lawyer why the allegation that Israel is committing genocide is false?
Fine.
I prefer to focus on the absurdity of the allegation, especially since it is Hamas that expressly seeks Jewish & Israeli genocide; but it's clear people want this analysis.
Genocide is defined by the 1948 UN Convention on Prevention & Punishment of the Crime of Genocide as: (1) the coordinated; (2) planned; and (3) intentional destruction, in whole or in part, of a national, ethnical, racial or religious group.
Let's set aside for a minute the fact that the the #UN Convention regarding #genocide was adopted because of what the #Nazis had done to the #Jews thereby making its invocation here not only absurdly false, but also unforgivably offensive.
That outrageousness aside, we can analyze the elements of the crime of genocide under the present situation in #Gaza.
The requisite mens rea to find a government guilty of genocide is the intent to destroy, in whole or in part, a particular group of people.
This intent to commit genocide doesn't magically come into being just because people want to believe it exists. There must be actual proof of criminal intent to destroy a particular group of people.
#SouthAfrica cannot possibly carry its burden of showing Israel "intended or intends to commit genocide"; thus, the allegation fails.
Just some of the obvious reasons intent to commit genocide could not possibly be shown follow:
- 10/7 & Hamas' words since 10/7 have proven the #terror group would, if it could, continue carrying out massacres until it killed every #Israeli & potentially every #Jew on Earth. Israel, like every other UN member state, has the inherent right to self-defense under Article 51 of the UN Charter. In this case, Israel's right to self-defense continues until it has done everything "necessary" to to ensure #Hamas can never attack Israeli civilians again because of: (1) the genocidal brutality of the #October7Massacre; (2) Hamas' 35+ years of genocidal warfare against Israel & Jews; & (3) Hamas' express & repeated commitment to repeat massacres like 10/7 "again and again." Therefore, Israel's right to self-defense includes both the right to eliminate the threat from Hamas to its civilians & to restore a sense of security to its civilians.
- The Hamas-run Gaza Health Ministry claims 22,000 #Palestinians have died. Even if that number was reliable (it is not), Hamas claims every one of the deaths was a civilian, not a #HamasTerrorist. That is obviously not the case. Israel claims to have killed ~9,000 Hamas terrorists. Even assuming the Hamas numbers were correct, that would mean about 1.45 civilians have been killed for every 1 "combatant" (Hamas terrorist). As horrible as the loss of any civilian life is, it is simply a fact that civilians suffer disproportionately in war & what Israel has done in protecting civilian lives is unprecedented in the history of urban warfare. In fact, according to the UN statistics of global conflict, the average civilian to combatant killed ratio is 9 civilians killed for every 1 combatant killed. This ratio in and of itself makes the allegation of "genocide" a complete absurdity.
- Even assuming the "worst case scenario" numbers above of ~9,000 terrorists killed & ~13,000 civilians killed still does not take into account the cause of those civilian deaths. We know that somewhere between 20%-35% of all Hamas & #Palestinian #Islamic #Jihad missiles misfire & land in Gaza (like the one that landed at a Gaza hospital that Israel was wrongly accused of bombing). So, how many Gaza civilians were killed by misfired rockets from Palestinian terror groups? Suddenly, that already incredible ratio of civilians:combatants in the annals of warfare is improving even further.
- There are at least dozens of videos of Hamas #terrorists firing at #IDF troops while wearing civilian clothing (which is itself a #WarCrime) to blend in with the civilian population. So, how many Gaza "civilians" who were killed were actually just Hamas terrorists wearing #civilian clothing? That civilian:combatant ratio is improving once again.
- We know from video, reconnaissance, audio, interrogations, & eye-witness accounts (including from #Gazans themselves) that Hamas uses both voluntary & involuntary human shields to protect Hamas terrorists & their weapons (each time they do it, that is also a war crime). So, how many Gaza "civilians" who were killed were voluntarily acting as human shields for Hamas? And while Israel has made significant efforts to limit civilians casualties, those involuntary human shields who die are legally dead at the hands of Hamas. Wow, that civilian:combatant ratio is looking beyond amazing now!
- There is video, photo, interrogation, & eye-witness accounts that Hamas uses women & children under 18 in combat roles. Therefore, not every allegedly killed woman or child counts as a "civilian."
- What kind of genocidal army would do what Israel has been doing in engaging in massive warning campaigns before it attacks via hundreds of thousands of phone calls, text messages, leaflets, & via roof knocking? Gazans are actually given so much warning & time to evacuate that the extreme majority of "civilians" who remain in a targeted area are there either because they support Hamas or because they were forced to stay & act as human shields by Hamas. Essentially, not only is Israel obviously not conducting a genocide, it has completely eliminated their own advantage of surprise that would have helped Israel eradicate Hamas much quicker by providing warnings that reach both civilians & Hamas terrorists.
- A large percentage of Palestinian deaths in Gaza have been due to their combined use by Hamas as human shields & by Hamas' refusal to permit Gaza civilians to either to use Hamas tunnels as bomb shelters or to flee via safe corridors provided by the @IDF
(what kind of genocidal army provides safe corridors for civilians even knowing some Hamas terrorists will manage to escape by blending in with the crowd???). In other words, it is Hamas that is by far the most responsible party for putting #Gazan #civilians in harm's way; and the mere fact that civilians have died is in no way indicative of any deliberate intent on the part of Israel to kill Palestinian civilians - let alone intentionally "destroy" the population, as required to prove genocide.
- A country's intention to destroy a group in whole or in part is typically found in state policy (as it was with the Nazis & as it is with Hamas). However, no such policy in Israel has ever existed. Israel has made clear repeatedly (and its actions, with some examples stated above, show this is more than just words) that its goal is to "operate[] against Hamas & other terrorist groups in Gaza, not against the civilian population ... Israel wishes no harm to civilians & is committed to addressing the humanitarian needs of those suffering ..."
- Simply, the loss of lives in Gaza are reasonably explained by & attributable to Israel's necessary self-defense military goal of eradicating Hamas' ability to make war. The loss of lives in Gaza are not, however, reasonably explained by some claimed genocide on the part of Israel, as there is no actual evidence to support a finding of the type of criminal intent required to prove genocide.
- Israel is a straight-up parliamentary #democracy; thus, it has voices in the Knesset that can be extreme. Those voices, however, are not mainstream; and, more importantly, those voices are not the ones who are responsible for prosecuting the war against Hamas. Therefore, their words (indelicate as they may have been) are irrelevant to a finding of genocide on the part of the government of Israel. The Israeli war cabinet in charge of prosecuting the war to eradicate Hamas consists of only five people: PM Benjamin Netanyahu, Defense Minister Yoav Gallant, unity coalition member, former Deputy PM, & Minister of Defense Benny Gantz, former military Chief of Staff Gadi Eisenkot, & Minister of Strategic Affairs Ron Dermer. Attempting to attribute the words of anyone else, especially in the very fringes of Israel's eclectic democratic government, to try to show proof of government intent to commit genocide fails as a matter of both fact & law. Any comments by the five members of the war cabinet at which any dishonest person may wish to point to try to prove "intent to commit genocide," in reality can only be reasonably interpreted as statements referring to the destruction of the Hamas terrorist regime.
So, what is the takeaway?
It is South Africa's burden to show Israel had/has the intent to carry out a "genocide" of the Palestinian people in Gaza. For the foregoing reasons (among many others - but this is long enough for X), South Africa cannot possibly prove intent to commit genocide.
South Africa's allegations are defamatory & are an attempt to hold the world's only Jewish State to a different standard than every other state in the history of humankind; and, perhaps worse, to try to turn the victims of a genocide into the alleged committers of a genocide.
Were the #ICJ to find intent to commit "genocide" here, then no country on Earth would be permitted to act in self-defense in the event it is attacked - no matter how horrible the attack - if any civilians may be killed in the process.
If that were the case, Hamas & other terrorist organizations would be given carte blanche to attack countries with impunity & then simply hide behind civilians to suddenly become entirely immune from justice. That obviously can never be the law.
#Education #Israel #Palestine...
I agree that the #SouthAfrican application accusing Israel of #genocide is extraordinarily bizarre & your take on it is not at all unreasonable.
It refers to "occupied Palestinian territory" more than 100 times - this obviously makes no sense in a war against Hamas in Gaza (nor would it make sense in the so-called "#WestBank," but I wrote a whole separate two-part post on that - let me know if you'd like links to them).
Similarly, #SouthAfrica mentions "settlers" & "settlements" several dozen times. Again, what? There has not been a settlement of any kind in #Gaza since 2005.
South Africa also disgustingly accuses Israel of #apartheid even though #Jews, #Arabs, & #Israeli citizens of all backgrounds enjoy equal protection under the law, there is no legal segregation or separate legal systems for Jews & Arabs, and Arabs are active in every part of Israeli political, professional, judicial, and social life. In fact, recent polls show a record number of #Arab-Israeli citizens feel "more Israeli" since 10/7 - to the tune of roughly 7 out of every 10. Tell me when that ever happened under apartheid South Africa!
It does seem South Africa is using its application to tell the old #Palestinian fairytale narrative that Israel, as a state in any borders, is illegal & that its very existence is a #WarCrime.
Like I said, it's bizarre & it's also obscene."
Related:
Tasha Kheiriddin: If Trudeau really cared about the ICJ, he'd join Israel's side in court - "South Africa’s case against Israel is not about standing up for the Palestinians, but a proxy for the interests of Russia and China. Both nations love the chaos the Israel-Hamas war is sowing for Israel’s allies, namely, the United States. And both countries have South Africa in their pocket. South Africa’s ruling party is indebted to Russian mining interests who have given it millions of dollars. Last year, South Africa participated in joint naval exercises with China and Russia. Small wonder South Africa has refused to join in international condemnation of either China or Russia at the United Nations. Due to its history of apartheid, South Africa is the perfect flagbearer for this legal case"
Composition of Israeli defence team at ICJ shows it takes genocide case seriously - "Israel takes this case seriously and appears to be betting that its team can present a convincing case against claims of genocide, helped in no small part by its leading member, Malcolm Shaw KC. Shaw, a British barrister with extensive experience in humanitarian law and a professor at the University of Essex, is a renowned expert on international law, specific territorial disputes, and genocide... This is not the first time Shaw will appear in front of the International Court of Justice, as Shaw also represented the UAE, Serbia, and Cameroon in other cases. He also took cases in front of other international institutions for Malaysia, Ukraine, Azerbaijan, Cyprus, Germany and Ireland. Shaw’s appointment means Israel chose expertise over showmanship, dashing, for instance, rumours that it could appoint controversial US lawyer and Harvard Professor Alan Dershowitz. Beyond the ICJ, Shaw appeared in front of as diverse entities as the European Court of Human Rights, the European Court of Justice, the Court of Final Appeal in Hong Kong, the High Court of Ireland, the UK Supreme Court, the House of Lords, the Court of Appeal and the High Court of England and international arbitral tribunals. He certainly is a formidable adversary to face in court. Shaw also specifically knows the field in question, having written a book titled Genocide and International Law."
Addendum: On the typical casualty ratio of civilians to combatants
