South Africa slips and slides while alleging genocide

Naledi Pandor recently divulged the origins of South Africa’s International Court of Justice (ICJ) case alleging Israeli genocide in Gaza. According to her YouTube podcast interview on SMWX, published on 23 August 2024, a secret plan was hatched from a WhatsApp chat so as not to alert the South African Jewish community of what was coming.

The department of international relations and cooperation (Dirco) really should have phoned me or at least dropped me an email to ask if this was a good idea with merits to proceed. It’s now obvious that the accusations of an Israel Defense Forces (IDF) genocide in Gaza were operated at an international level all the way to the ICJ without any real extensive planning nor consultation with South Africa’s published military law writers like myself.

Anyway, without my assistance on the issue, anti-Israel sentiment (anti-Zionism) and Jew hatred (antisemitism) spiralled out of control, becoming baseless hatred against fellow South Africans. Mobilising the “G-word” against Israel, especially after the Nazi Holocaust, boiled the minds of everyday South Africans who never took sides in the conflict until hearing the word “genocide” over and over again on a daily basis from local and international media outlets.

The flares of anger from the Boycott, Divestment, Sanctions (BDS) movement and other pro-Palestinian social media “activists” cannot be tamed as they firmly believe South Africa’s false narrative, which was spoon fed to the world at large. South Africa’s manipulation of the media against Israel has subsequently damaged South Africa’s democratic culture and values of diversity, inclusivity, and nation building. It’s not normal behaviour in democratic South Africa to dress children up as Hamas militants. It’s not normal behaviour in democratic South Africa to launch embarrassing, unsolicited social media videos in the kosher-for-Passover section in Norwood Pick n Pay. It’s not normal behaviour in democratic South Africa to threaten a social media intifada.

I don’t expect any form of apology from Dirco nor President Cyril Ramaphosa following his rewriting of history on X on the one-year anniversary of the 7 October Hamas massacre and Nova festival terror attacks. However, when Ramaphosa announced the national dialogue, I was given one more opportunity via the SA Jewish Report to make him take a long, hard look in the mirror.

Interview admissions

Pandor said that the person who really raised the matter of the United Nations Genocide Convention was Professor John Dugard, who in her opinion is a renowned human rights lawyer. Dugard was sending messages not to Pandor, because he doesn’t know her personally, but through Ronnie Kasrils. Kasrils was badgering Pandor with these WhatsApps to ask about the Genocide Convention, as he claimed there was genocide underway soon after 7 October 2023.

There’s the possibility that Dugard and Kasrils were writing to then Justice Minister Ronald Lamola as well, as he sent Pandor a note in Cabinet to consider an action using the Genocide Convention.

The Genocide Convention

Article 2 of the Genocide Convention defines genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group; and
5. Forcibly transferring children of the group to another group.

Article 3 of the Genocide Convention makes the following actions punishable:

1. Genocide;
2. Conspiracy to commit genocide;
3. Direct and public incitement to commit genocide;
4. Attempt to commit genocide; and
5. Complicity in genocide.

Pandor used to report on the war every fortnight to Cabinet, and expressed her dismay at what was happening. Pandor said to Lamola, “Why don’t you initiate the action?” Lamola said no to Pandor as it resided in Dirco’s area of responsibility.

The time frame of the conversations was about eight weeks after 7 October. Pandor went back to Parliament and convened a meeting because she was worried about what was happening to the Palestinian people.

Pandor consulted with Dirco’s Zane Dangor about the Genocide Convention’s provisions, signatories, and the ICJ. Dangor’s team returned with a report. Pandor agreed to create a memo from the report in order to take it to Cabinet, and informed Ramaphosa.

Pandor admitted that maybe she wasn’t not allowed to talk about all of this because she had just left Cabinet at the time of the podcast interview. Pandor furthermore admitted that she hoped that she wasn’t saying anything in the video that could get her into trouble.

Ramaphosa was supportive of the initiative, and even asked to see the memo before Pandor sent it out. Pandor asked for permission from the Cabinet secretary to do it urgently because she couldn’t go through the cycle procedurally.

Pandor didn’t want this to go public before it had gone down a long line because she knew she would get a negative response. She kept it secret between herself, Dangor, Ramaphosa, Ramaphosa’s legal advisor Nokukhanya Jele, and Lamola.

Pandor got the matter in, and was thrilled with the reaction. She asked that no statement be made until after they submitted it to the ICJ. The legal document had not yet been drafted and a team had not yet been put together.

Nobody leaked it despite Pandor’s admission that there was a problem with leaking information from the African National Congress and Cabinet. Nobody said a word until South Africa submitted the legal documents to the ICJ. South Africa made a public statement afterwards, and that helped a great deal because it blindsided everyone who was opposed. The lack of objections gave South Africa enough time to prepare appropriately.

Pandor didn’t have arguments in the public domain about the steps they were taking because a lot of people in South Africa were against what they had done, particularly the South African Zionist Federation and the South African Jewish Board of Deputies. Pandor didn’t want a huge debate and argument in South Africa. She wanted to smooth the process so that even the Palestinians didn’t know.

Ramaphosa wanted to see everything, looked at every paragraph, and when he was happy, they submitted it. Pandor said that you couldn’t go to court on an international matter if the president of the country wasn’t in support of the action.

Pandor said that supporters of the Israeli state were vocal, present, and wrote consistently. She furthermore stated that those who supported Palestine weren’t using the formal media as much as they should, and there needed to be equal representation of voices if the situation was to be understood and a battle was to be waged.

Fake it until you make it

Without knowing better, it’s easy to assert that South Africa’s ICJ team got one over the South African Jewish community even without it having access to the relevant military law knowledge to understand the substantive holes in its own legal document.

South Africa’s legal team was greeted at OR Tambo International Airport like heroes, and it was acclaimed in the local media for having comprehensive expertise and meticulous arguments.

Daily Maverick, for example, stated in December 2024 that, “The SA legal team may not have been crowned person of the year, but their 28% share of the public vote reflects the immense respect and admiration for their work. Their contributions this year stand as a beacon of hope and a testament to the power of collective effort. The South African ICJ team has not only made history, but has inspired a nation by proving that our voice can shape global narratives. Their legacy will endure as one of the defining achievements of 2024.”

Applicable rules of international law

I’m ethically and morally tasked with peeling away the ugly smear of South Africa’s genocide allegations levelled against Israel after the Hamas massacre on 7 October. Here we go!

As a starting point, the ICJ application against Israel lacks factual and legal substantiation in the fields of International Humanitarian Law (IHL) via the 2009 HPCR Manual and its commentary document, which provides the modern-day restatement of IHL applicable to an air and missile warfare. Four major faulty arguments are listed as so-called compelling circumstances for genocide. The arguments in question are dumb bombs; hospital attacks; starvation; and dehydration.

Dumb bombs

It’s alleged twice in the 84-page ICJ application that Israel is said to be dropping “dumb” (unguided) bombs on Gaza, as well as heavy bombs weighing up to 2 000 pounds (900kg), which have a predicted lethal radius “of up to 360m”, and are expected to cause severe injury and damage as far as 800m from the point of impact. This weaponry is being deployed in one of the most densely populated areas in the world, where about one in every 100 people has now been killed.

There’s no difference in law between ballistic missiles and guided missiles. One cannot claim that a guided missile will perform in a more legal manner than a ballistic missile. The Max Planck Encyclopedia of International Law states that guided missiles, as such, are not more nor less able to comply with the law than ballistic missiles.

“Some ballistic missiles are also perfectly capable of complying with all applicable legal provisions. No general statements can be made that would be true for all types of missiles, in short: everything depends on the level of targeting accuracy of a given type of missile, on the one hand, and on the precise way in which it is used to conduct a given attack, on the other.”

The regular use of unguided bombs by military forces around the world shows that they are quite simply not indiscriminate in nature – just like ballistic missiles. In many instances, these weapons can be delivered against enemy combatants with little harm to civilians or civilian objects. Their usage can be accurate depending on the circumstances and method of delivery. Furthermore, the usage of unguided bombs has already been addressed by the Israeli Air Force in an explanatory video.

Accordingly, the term “dumb bombs” described munitions that are not guided based – not GPS guided. These are standard munitions that are regularly used by militaries worldwide. The claims that such munitions are indiscriminate or cause uncontrollable damage are misleading. Even though these munitions aren’t GPS guided, they are still used accurately. They are released at a specific release point calculated by the aircraft’s system to allow the pilot to strike the target accurately. These heavy munitions detonate underground, causing craters, preventing fragmentation which could harm civilians and significantly reduce the blastwave and debris as a result.

Hospital attacks

According to the ICJ application, “South Africa is highly cognisant of the fact that acts of genocide are distinct from other violations of international law sanctioned or perpetrated by the Israeli government and military in Gaza, including intentionally directing attacks against the civilian population, civilian objects, and hospitals, amongst other sites mentioned.”

Hospitals, however, don’t always enjoy protection from lawful military attacks within the modern-day restatement of IHL which applies in an air and missile context. International guidelines explain in which circumstances a hospital may be legitimately attacked for military purposes as explained below.

As a starting point, Palestinian hospitals, by default, must not be the object of attack. According to the laws of air and missile warfare, hospitals must be respected and protected at all times. This is the basic premise, however further legal provisions are explained below.

According to the laws of air and missile warfare, the party subject to attack – Hamas – must avoid locating military objectives within or near densely populated areas including hospitals which are entitled to specific protection. The protection to which hospitals are entitled doesn’t cease unless they are used to commit harmful acts outside of their humanitarian function like using hospitals as kidnap points or military bases.

It’s also prohibited to locate legitimate military targets – such as Hamas combatants – within or in the vicinity of a hospital to shield them from attack. This tactic cannot be justified under any circumstances. According to the HPCR Manual commentary, the party subject to attack must neither encourage nor tolerate “voluntary human shields” who ought to be removed from the hospitals which could become legitimate military objectives.

The party subject to attack – Hamas – must also to the maximum extent feasible take necessary precautions to protect the civilian population, individual civilians, and civilian objects under their control against the dangers resulting from military operations. Accordingly, the necessary precautions contemplated here include air warning systems, air raid shelters, etc.

Starvation

An extremely disturbing socio-economic trend appears to exist within the Gaza Strip. A tremendous financial inequality exists between active militants and passive civilians. This wealth gap starts with the Hamas elite living lavishly in Qatar, and ends with the helpless civilians who fled from Operation Swords of Iron and are squeezing the remaining resources in the south of Gaza. In October 2023, the unemployment rate in Gaza was 47%, and more than 80% of its population was living in poverty, according to the United Nations. This is despite the massive system of underground terror tunnels built underneath the Gaza Strip which would have been built only through vast financial investment.

I therefore asked ChatGPT the following question, “What do you call an economic system where the most violent people get the most money?”

ChatGPT replied, “There isn’t a specific term for an economic system where the most violent individuals or entities receive the most money. However, if you’re describing a situation where coercion, force, or violence play a significant role in economic transactions, it may be associated with a corrupt or lawless environment rather than a formal economic system.

“In conventional economic terms, a system where violence is a primary means of accumulating wealth would likely be considered dysfunctional, and such conditions would likely hinder sustainable economic development. In well-functioning economic systems, the rule of law, property rights, and a fair legal framework are typically considered essential for fostering economic growth and prosperity.”

The economic turmoil facing civilians in Gaza is in fact noted by South Africa’s 84-page ICJ document, however this is framed against an alleged economic normality as there’s no further reference to the ongoing practice of a violence economy.

“By 16 November 2023, the food infrastructure in Gaza was already considered “no longer functional”, given shop and market closures; the lack of essential food items; and the inflated price of the scarce food available. Bread is scarce or non-existent, with food scarcity leading to significant price hikes, and the price of flour increasing by 65% at one stage. Livestock that hasn’t been killed is facing starvation, and crops are damaged or destroyed. Many Palestinians are resorting to foraging due to hunger, collecting spilled flour from aid distributions from the road, or other unsafe food practices.”

The shattering socio-economic phenomenon of a violence economy goes far deeper than Hamas militants commandeering aid trucks for military purposes. While a violence economy is the end result of what was promised to voters in Gaza in 2006, many wouldn’t have foreseen it backfire so tremendously.

This system of economic investments, rewards, and incentives to attack Jews and Israelis will inevitably be studied by students in global economics, history, politics, and philosophy textbooks in years to come even if the South African government doesn’t acknowledge it today.

Dehydration

Dehydration is mentioned twice in South Africa’s genocide application against Israel. It states:

“In addition to being killed by Israeli weaponry, Palestinians in Gaza are also at immediate risk of death by dehydration as a result of the ongoing siege by Israel.”

“Causing widespread dehydration to besieged Palestinians in Gaza, through the cutting off of sufficient water”

On 19 December 2024 COGAT (the Co-ordination of Government Activities in the Territories: Judea and Samaria and towards the Gaza Strip) posted substantial arguments against allegations of dehydration on X, saying, “Enough with the baseless accusations. Millions of litres of water flow into the Gaza Strip through three Israeli water pipelines. Israel also facilitated hundreds of water infrastructure repairs and fixed water lines leading to Gaza on the Israeli side that were damaged by Hamas. Some of these repairs were done under fire. Suggesting otherwise ignores reality and continues Human Rights Watch’s history of doing anything it can, including ignoring the actions of Hamas terror, to demonise Israel.”

Importantly, a 2023 social media video recently resurfaced, which provides indisputable evidence that Hamas militants dig up local water pipelines and repurpose the materials to manufacture indiscriminate rockets. Posted by Hamas themselves, this video was picked up by media sources Crux, Spotlight, Mail Online, and the IDF, and re-posted on their YouTube channels during October 2023.

It stated, “Hamas video shows fighters crafting rockets from water pipes. A 2021 video shows fighters digging pipes out of the ground. The militants then attach pipes to warheads containing explosives. The video also shows various launchers Hamas uses for attacks. Hamas has used rockets crafted from pipes in previous attacks on Israel.”

Water pipelines are specifically listed in the HPCR Manual as objects indispensable to the survival of the civilian population. Furthermore, the removal of water pipelines is prohibited in international law for the specific reason of denying civilians their usage.

However, this prohibition doesn’t apply when the water pipelines are used by the enemy – Hamas – in direct support of military action. Therefore, it appears to be academically feasible for the IDF to intervene militarily in Gaza’s water pipelines in certain circumstances.

The only condition is that in no event can the IDF take actions against water pipelines which may be expected to leave the civilian population of Gaza with such inadequate water to cause starvation or force its movement.

Any legally valid IDF operations would, of course, also have to comply with the principles of precaution – advanced warning measures to remove civilians; proportionality – weighing up that incidental civilian harm isn’t predicted to be excessive in relation to the expected military advantage; and distinction – hitting a military target as the point of attack.

Conclusion

Even at the surface level of investigation, South Africa’s case against Israel at the ICJ is riddled with controversy and problems. In my opinion, the aggressive legal actions taken against Israel after the 7 October Hamas massacre has brought the South African government into disrepute. The millions of rands allocated from Treasury to the departments of justice and international relations to pursue charges of genocide against Israel have most likely been misappropriated without the full knowledge of their own chosen legal arguments.

• Joel Block is an International Law researcher and published writer in the South African Journal of Military Studies. He specialises in international humanitarian law in the air and missile context.