Israel is not committing genocide — but Hamas is  

As 2023 drew to a close last week, South Africa decided to file a claim at the International Court of Justice in The Hague, preposterously accusing Israel of carrying out genocide in Gaza. 

The crime of genocide, coined in 1944 by the Polish-Jewish jurist Raphael Lemkin to describe the systematic extermination of Jews by the Nazis, is one of the most serious accusations that can be leveled in international law. Today, it has a very specific definition under Article II of the Genocide Convention of 1948, meaning committing acts, including by killing, that are intended to destroy, in whole or in part, a national, ethnic, racial or religious group. 

It is important to underscore that the commission of genocide has nothing to do with the number of civilian casualties; the key element of the crime is the need to possess relevant “intent.” Whatever criticism one may have of Israeli policies or Israel Defense Forces (IDF) actions in Gaza, Israel is not seeking to destroy the Palestinian people, whether in whole, in part, or in any manner. 

During a Nov. 20 briefing, U.S. National Security Council spokesperson John Kirby eviscerated the inappropriate use of the term genocide to describe Israel’s actions in Gaza, forcefully stating: 

“Israel isn’t trying to wipe the Palestinian people off the map. Israel isn’t trying to wipe Gaza off the map. Israel is trying to defend itself against a genocidal terrorist threat. So, if we’re going to start using that word, fine. Let’s use it appropriately.” 

This week, asked about South Africa’s claim against Israel, Kirby could was unequivocal, saying the U.S “find this submission meritless, counterproductive, and completely without any basis in fact whatsoever.”

Israeli leaders, including Prime Minister Benjamin Netanyahu and IDF Chief of Staff Herzi Halevi, have been unequivocal and repeated in stating that the goal of the operation in Gaza is to eliminate Hamas, by destroying its military and governing capabilities. 

If anyone is guilty of genocide here, it is the internationally recognized terrorist group Hamas. Not only does Hamas openly state that the destruction of Israel is its ultimate goal, as evidenced in its Charter, it acted out on those intentions on Oct. 7, when Hamas massacred over 1,200 Israelis, including raping, burning, mutilating and executing women and children.  

That there have been civilian casualties in Gaza is tragic, but it is also the inevitable consequence of Hamas using its own people as human shields and embedding its military operations in schools, hospitals, kindergartens and homes. Notwithstanding this challenge, the IDF have gone to extraordinary lengths to avoid casualties and abide by principles of international humanitarian law.  

For example, the IDF has been warning civilians in Gaza to evacuate before a pending attack and providing safe passage for them to do so, while at all times adhering to the principles of distinction and proportionality in aiming only at Hamas military targets. The proportionality of operations are also examined by the IDF’s Military Advocate General’s Office, Israel’s attorney general and the relevant commanders on the ground before being carried out.  

In baselessly leveling the charge of genocide against Israel, all that South Africa is doing is engaging in a form of lawfare as a proxy of the Iranian regime and Hamas. Furthermore, South Africa is only diminishing real acts of genocide, such as those that occurred in the Holocaust, as well as against Armenians, Yazidis, in Rwanda, Darfur and Syria more recently. 

In a Oct. 24 interview, senior Hamas official Ghazi Hamad gleefully stated that the terror group would repeat the Oct. 7 massacre “again and again” until Israel was “annihilated,” openly admitting the group’s genocidal intentions. 

In response, then British Foreign Secretary James Cleverly commented, “How can there be peace when Hamas are committed to the eradication of Israel?” 

Next week, the International Court of Justice is set to hold the first hearing into the case brought by South Africa. If the court wishes to maintain its credibility, respect for the rule of law and sacrosanct obligation in holding real perpetrators of genocide accountable, it will immediately dismiss these baseless and mendacious proceedings against Israel and direct its attention solely to the crimes of Hamas. 

Stanislav Pavlovschi is a former judge of the European Court of Human Rights (2001-2008) and former Minister of Justice of Moldova.  

Arsen Ostrovsky is an Israeli human rights attorney and CEO of The International Legal Forum.