Julia Ioffe interviews David Scheffer, a lawyer and professor who served as Bill Clinton's ambassador-at-large for war crimes, to provide some clarity around South Africa's suit against Israel in the International Court of Justice:
South Africa is alleging the entire corpus of the Genocide Convention and its application, namely that Israel has failed to prevent genocide against Gaza and that it is committing genocide against Gaza. It is a very fulsome application. South Africa is not asking the I.C.J. to make a finding of a failure to prevent, or a commission of, genocide. They are asking the I.C.J. to direct Israel through what are called provisional measures to do what is necessary to prevent and not commit genocide in Gaza, to take those measures while the I.C.J., over a much longer period of time, considers the merits of South Africa’s allegations. For a commission of genocide, one needs to establish that both the genocidal act has occurred and that it has occurred with the specific intent to destroy all or part of a national, racial, religious, or ethnic group. The dolus specialis, we call it—the specific intent to do that. That’s why, particularly on a merits stage, it takes time to put those two together: the genocidal acts, and the mens rea of the specific intent.
The application disgorges an enormous amount of publicly available information about what has happened in Gaza. We all know that it’s a humanitarian catastrophe of some dimension in Gaza right now. I don’t want to diminish the importance of that. But nowhere in South Africa’s application is there any recognition that there is a war taking place. This is not a genocide like Rwanda or of the Rohingya or the Yazidis in recent times, where these were just authoritarian regimes that went after populations that were not attacking them.
But this is a war. There is an act of self-defense by Israel. Now, that does not mean that Israel has clean hands on absolutely everything it’s done, absolutely not.
I think genocide is a very powerful word. You get everyone’s attention. South Africa could just as easily say, “We clearly think atrocity crimes are occurring now in Gaza. We’re not prepared yet to say whether it’s genocide or not.” But they did make a determination: They want to call it genocide. And they’re free to do so. I don’t blame them.
But in the court of law as well as in the court of public opinion, I think it’s very important that we not embrace that word in this particular conflict until there’s a better understanding of what is occurring in terms of warfare and of the humanitarian plight of the Palestinian people.
At the same time, as I have pointed out, Hamas could stop it all tomorrow by surrendering. Hamas has the power to prevent genocide. It has had the power to prevent genocide even after it, itself, probably committed genocide on October 7th. It had the power, after October 7th, to subject none of the Palestinian population to what South Africa describes as genocide. Hamas had the power and it did not use that power. Hamas has no right to fight on. It has no right of self-defense. And furthermore, by virtue of the fact that it continues to fight, it brings an enormous amount of suffering and destruction upon the Palestinian people, all of which it could stop by simply surrendering.
The last paragraph I quoted is particularly important. For all the online outrage I see about Israel's military campaign against Hamas, I don't see many Palestine supporters recognizing that Hamas started this, and Hamas can end it.
Because really, October 7th and what happened afterwards comes down to Hamas wanting to destroy Israel. People seem to forget that.
Netanyahu has to go, soon, along with all the right-wing crazies propping up his government. But so does Hamas.