More than five months after a ceasefire in the Israel-Hamas war, a highly contentious legal proceeding arising out of that military conflict remains a sword of Damocles hanging over the State of Israel’s head. In December 2023, two months into the war, South Africa formally charged Israel before the International Court of Justice with perpetrating a genocide in Gaza. Needless to say, Israel is vigorously contesting the accusation.

Last week, the United States joined Fiji, Hungary, Iceland, Namibia and the Netherlands as the latest countries to file declarations of intervention with the ICJ in South Africa v. Israel. The U.S. and Hungary rejected the genocide charge as a matter of international law while Namibia, the Netherlands and Iceland supported South Africa’s position. (Fiji, meanwhile, argued for a narrow, strict reading of the Genocide Convention rather than the more expansive, “holistic” interpretation urged by South Africa and many of its acolytes that had previously intervened in this case.)

I read the U.S. intervention with particular interest given that I have been teaching about the law of genocide at Cornell Law School since 2008 and at Columbia Law School since 2011. Indeed, beginning two weeks after the Hamas terrorist savagery on Oct. 7, 2023, my students and I have considered the applicability of the 1948 Genocide Convention to the Gaza war. I hasten to add that these discussions at both Cornell and Columbia have consistently been intellectually rigorous, civil and, perhaps most importantly, without any disruption or acrimony whatsoever.

I personally have maintained since the start that Israel’s actions in Gaza did not violate the Genocide Convention and that South Africa’s allegations to that effect were spurious. I further believe that in bringing this case before the ICJ, South Africa was representing and furthering the interests of Hamas rather than the interests of justice, however construed. This is also the U.S. government’s position.

I fully expected, therefore, that its contribution to the ICJ proceedings would substantively buttress Israel’s defense in this case. Instead, I found the U.S. intervention to be underwhelming and pro forma at best.

Specifically, it is unlikely in the extreme to move the needle in any meaningful way. As far as I can see, this submission’s only positive aspects are (a) that it was made at all, and (b) that it “affirms, in the strongest terms possible, that the allegations of ‘genocide’ against Israel are false.” However, the intervention does not provide any factual back-up for this contention other than quoting Israel’s assertion in the course of  the ICJ proceedings that the case brought against it

is wholly unfounded in fact and law, morally repugnant, and represents an abuse both of the Genocide Convention and of the Court itself. Israel moreover wishes to reiterate that its commitment to the observance of international law, including the Genocide Convention and international humanitarian law, is unwavering and applies — as Israel has demonstrated in word and deed — in relation to the conduct of the present hostilities in Gaza and independently of any proceeding before the Court.

is wholly unfounded in fact and law, morally repugnant, and represents an abuse both of the Genocide Convention and of the Court........

© The Jewish Week