This zionist law professor agrees. Fiji and Paraguay both ran circles around the US as it regards to defending israel. Actually better than anything I've seen from israel itself. It isn't like an impossible assignment. It just happens that the people responsible for this have trash for brains. The US intervention has the same tone that the israeli's own documents take. Completely unserious.
By Menachem Z. Rosensaft
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.”
Israel made its case forcefully and credibly, which is to say that the drafters of the U.S. intervention could have found ample material to shore up their arguments by simply reading the verbatim record of Israel’s Jan. 12, 2024, argument before the ICJ. It appears that they did not bother to do so.
The legal arguments put forward in this intervention were similarly shallow and did not add anything new or persuasive to a sophisticated debate on a critical element of international criminal law that has been going on for almost a year and a half. Neither we nor the ICJ needed this declaration to remind us of the court’s prior holding that “claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive,” or that “the Court must be ‘fully convinced’ that allegations of the crime of genocide have been committed.” While these and similar propositions in the U.S. intervention are accurate, they are so basic, bordering on the facile, that their inclusion without more is embarrassing. The same holds true for the abstract contention that:
“Civilian casualties, even widespread civilian casualties, are not necessarily probative of genocidal intent, particularly when they occur in the context of an armed conflict involving urban combat. The law of armed conflict not only recognizes the possibility of civilian harm but permits it so long as the relevant principles of discrimination and proportionality are met. In drawing inferences during an armed conflict, evidence of efforts to comply with the law of armed conflict with respect to the protection of civilians, as well as other efforts to avoid or mitigate civilian harm, should be taken into account as evidence that genocide is not a reasonable inference from the conduct in question—and is certainly not the only reasonable inference that may be drawn from that conduct.”
This particular argument would — and easily could — have benefited from a description – that is, “evidence” — of “efforts” made by Israel “to comply with the law of armed conflict with respect to the protection of civilians, as well as other efforts to avoid or mitigate civilian harm.” Presented as a stand-alone and without any reference to what actual happened, i.e., to what Israel actually did to protect civilians and mitigate civilian harm, this assertion, although undeniably accurate, is effectively meaningless.
The U.S. intervention does make the important point that under the Genocide Convention, the existence of a “dolus specialis” or “special intent” to “destroy a national ethical, racial or religious group as such” must not only be present but must be the only inference that can be drawn from an alleged perpetrator’s conduct. The intervention further urges the IJC to retain this standard. “Lowering the standard,” it maintains, “risks broadening the application of the term ‘genocide’ such that it no longer carries its original weight and meaning, and invites attempts to misuse the Convention as a gateway for bringing extraneous disputes before the Court.”
What the intervention fails to do, however, is to specify why this argument is central to the controversy at hand, namely that a number of previous interventions by supporters of the South Africa (and Hamas) genocide charge against Israel specifically seek to change or lower the applicable standard for intent. Thus, for example, Chile calls for “a holistic analysis of evidence, considering the overall factual picture within the context in which the acts occurred, and the pattern of conduct of the accused. Assessing all evidence, taken together, is an approach that aligns with the fluid concept of intent.”
In the same spirit, Brazil wants the ICJ to adopt a “balanced approach to dolus specialis, one that reflects not only the criminal law dimension but also the Convention’s overarching humanitarian object and purpose.”
Ireland for its part calls on the court “to broaden its interpretation of what constitutes the commission of genocide by a State. We are concerned that a very narrow interpretation of what constitutes genocide leads to a culture of impunity in which the protection of civilians is minimized.”
Belize, meanwhile, goes even further, maintaining, inaccurately as it happens, that “There is no requirement that the State or individual act exclusively with genocidal intent. It is the case that ‘genocidal intent may exist simultaneously with other, ulterior motives’, such as achieving military objectives, including defeating the enemy in the context of an armed conflict.”
The U.S. intervention addresses this war of words over the meaning of intent under the Genocide Convention only obliquely, by noting that the “understanding” of its government is that intent as used in the Convention means “the specific intent to destroy, in whole or in substantial part, a national, ethnical, racial or religious group,” and that “acts in the course of armed conflicts committed without the specific intent required by article II [of the Convention] are not sufficient to constitute genocide.”
What the U.S. intervention should have emphasized but didn’t even mention is that the ICJ held in 2007 in Bosnia and Herzegovina v. Serbia and Montenegro that an intent to commit genocide could not be inferred even in the face of a policy of “ethnic cleansing” without a clear showing that such a policy was part of an intention to destroy a protected class. According to the court in that case, ethnic cleansing
“can only be a form of genocide within the meaning of the Convention, if it corresponds to or falls within one of the categories of acts prohibited by Article II of the Convention. Neither the intent, as a matter of policy, to render an area “ethnically homogeneous”, nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is “to destroy, in whole or in part” a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement.”
I am not suggesting that the “protection of civilians,” as called for in Ireland’s intervention, is not a laudable goal, but it lies outside the scope of the Genocide Convention. Similarly, any alleged violations of international law other than genocide are simply not within the jurisdiction of the ICJ. But these arguments are nowhere to be found in the U.S. intervention.
In other words, I fault the drafters of this submission for merely going through the motions rather than taking the time to present a compelling case.
I do not mean to be snide. But as someone who once clerked for a federal trial judge and then spent more than 30 years as a securities and international litigator, I can say without fear of contradiction that a third-party submission in a litigation, which is what these interventions are, that does not educate a court and merely reiterates the obvious will not be taken seriously and may well end up backfiring. No judge or law clerk appreciates being fed pablum. Simply put, if one of my students were to submit a term paper of the quality of the U.S. intervention in one of my classes, they would not be happy with their grade.
I don’t know if a more comprehensively drafted U.S. intervention might have significantly impacted the ICJ’s eventual judgment in South Africa v. Israel. I am quite certain, however, that the one submitted last week will not do so and will be remembered, if it is remembered at all, as a wasted opportunity.
Menachem Z. Rosensaft is a lawyer and human rights activist, adjunct professor of law at Cornell Law School and lecturer-in-law at Columbia Law School.