South Africa's Case: A Study in Flawed Logic
South Africa's genocide case against Israel at the ICJ faces insurmountable legal obstacles. The case ignores the sequence of events beginning with the 7 October attacks, mischaracterises Israel's right to self defence, and overlooks evidence inconsistent with genocidal intent, including humanitarian aid delivery and operational focus on Hamas. Recent calls to expand the definition of genocide suggest South Africa implicitly accepts the weakness of its case. As proceedings continue, adherence to established legal standards and due process remains essential.
Less than three months after the 7 October terrorist attacks, South Africa launched its case against Israel at the International Court of Justice (ICJ).
South Africa alleges that Israel's military campaign against Hamas, now ceased, constitutes genocide against the Palestinian people.
The Legal Standard
South Africa will need to prove that Israel has harboured special intent (dolus specialis) to 'destroy, in whole or in part' the group in question.
Under the ICJ's established approach to genocide cases as guided by the Genocide Convention, there exists a 'beyond reasonable doubt' standard for genocidal conduct.
These legal realities, grounded in the Convention, a universally respected document, are seen by many expert commentators as insurmountable for South Africa.
As such, its legal team is surely questioning the logic of its case. The case does indeed suffer from illogical reasoning.
The Sequence of Events
Take, for example, the 7 October attacks. The murder by Hamas of 1,195 people in Israel that fateful day realised Israel's fears that Hamas, operating from Gaza, is an existential national security threat.
Israel invoked its right to self defence, guaranteed under international law, in response. And thus, the military campaign began. It is very difficult to dispute this sequence of events.
Accusing Israel of special intent to destroy, when the state itself was the victim of attempted destruction, is ultimately perverse.
Israel's Actions in Gaza
The ICJ will consider, too, that the absence of special intent is strongly evidenced by Israel's specific actions in Gaza.
During the conflict, Israel allowed and facilitated delivery of more than 100,000 trucks of aid to Gaza and continues to do so under the terms of President Trump's peace agreement.
This, as well as the advanced warnings of strikes, and the transparent operational focus on Hamas as a legitimate enemy, is wholly inconsistent with the alleged special intent to destroy, in whole or in part, the Palestinian people.
Attempts to Redefine Genocide
Recent developments prove that South Africa implicitly accepts this reality. There have been calls by South Africa aligned NGOs for the definition of genocide to be expanded, in a seeming attempt to undermine the Convention.
This is reasonably judged to be lawfare and is a grave concern for all those committed to international law.
The Path Forward
At a time of high emotion, rational observers can take comfort in the carefully drafted words of the law.
If legal instruments are protected from attempts to stretch them for political purposes, then the illogic of South Africa's case will see it unravel.
Israel will rebut South Africa's allegations in an official submission to the ICJ next year. As the case progresses into 2027 and beyond, reference to the law and respect for due process must be the lodestar for all involved.
This applies to both sides of the case, but also the media, international organisations, NGOs and third States.
Sensational copy may win eyeballs but corrupts public and political opinion on one of the most complex geopolitical events of recent times.