How Israel’s leaders opened the door to South Africa’s ludicrous genocide claim

Firing on one’s own soldiers, often called “friendly fire,” has been costly to Israel in the Gaza War. But another kind of friendly fire — reckless, unnecessary statements by Israel’s own political and military leaders after Hamas’s Oct. 7 attack — could be costly in a different way.

Those statements became South Africa’s Exhibit A in the case it has brought to the International Court of Justice (ICJ), alleging that Israel is committing genocide in Gaza.

South Africa’s claim borders on the ludicrous, because Hamas, whose foundational charter and current leaders call for the annihilation of Israeli Jews, deliberately maximizes Gazan casualties as a means of mobilizing world opinion against Israel, including through such genocide claims.

Having deliberately provoked the Israel military response, Hamas refuses to allow Gazan civilians — not even pregnant women and children — to take shelter in its 350-400 miles of well-stocked, underground tunnels, which run beneath hospitals, schools and mosques and where Hamas fighters hide. As a top Hamas official boasted, “We are proud to sacrifice martyrs.” 

South Africa has no moral standing to bring this case. It immediately blamed Israel for the Oct. 7 attack, even before Israel had responded, and hosted a delegation from Hamas to show its solidarity with a terrorist organization responsible for the worst single day loss of Jewish lives since the Holocaust.

South Africa’s legal team includes Jeremy Corbyn, who was found by a British government watchdog to have tolerated “harassment and discrimination” against Jews while he was the head of the Labour party.

Yet, many experts anticipate that the ICJ will preliminarily find that South Africa’s claim is “plausible.” How is this even a possibility?

A key question before the ICJ is whether Israel has the intent to destroy, in whole or in part, “a national, ethnical, racial or religious group, as such,” in accordance with the UN definition of genocide. At this preliminary stage, South Africa only has the lenient burden of proving a “plausible” claim of genocide. If it can do that, the ICJ can order provisional measures such as requiring Israel to suspend its military operation in Gaza. This would leave Hamas, whom South Africa unsurprisingly did not name as a party, free to attack Israel. A final merits determination, which could take years, would likely require South Africa to meet a more exacting “fully convincing” standard.

But even under the lenient standard, South Africa would have struggled to prove the requisite intent if not for the reckless statements by Israel’s own leaders after the attack.

South Africa quoted Prime Minister Benjamin Netanyahu as invoking the biblical story of Amalek, the nation that persecuted the Israelis and — according to South Africa — whom the Bible commanded Israel should wipe out. (More about this in a moment.) Defense Minister Yoav Gallant announced a “complete siege of Gaza” and vowed to cut off all food, water and fuel. Right wing Deputy Knesset Speaker Nissim Vaturi wrote that Israel should “erase the Gaza Strip from the face of the earth.” Even the mild-mannered President Isaac Herzog said that “it is an entire nation out there that is responsible.”

Israel’s lawyers argued that the statements reflected the trauma experienced by Israel, that many were taken out of context or selectively quoted, and in any event, do not represent Israel’s operations in Gaza in which, unlike Hamas, it has taken steps to mitigate civilian casualties. Indeed, South Africa misrepresented Netanyahu’s Amalek comment by linking it to a different chapter of the Bible — not referred to or quoted from by Netanyahu — in which King Saul is commanded to wipe out every member of Amalek. 

But even when accurately quoted, these statements still provided evidence for South Africa’s claim. They should never have been made.

Israel’s leaders may have compounded their catastrophic intelligence and preparedness failures on Oct. 7 by walking Israel into a damaging, even if non-final, ICJ finding that the allegations of genocide are at least plausible.

Gregory J. Wallance was a federal prosecutor in the Carter and Reagan administrations and a member of the ABSCAM prosecution team, which convicted a U.S. senator and six representatives of bribery. He is the author of the new book “Into Siberia: George Kennan’s Epic Journey Through the Brutal, Frozen Heart of Russia.”