As it hosts Africa's first G20 Summit, South Africa remains fixated on Israel. It is likely to leverage its Summit hosting – which key players including the United States have boycotted – to once more attack Israel while its own government ignores atrocities within its own borders. This at the same time as many attending G20 states have outright rejected South Africa's allegations of Israeli genocide in Gaza.
Distrust of experts is at an all-time high. Whether it relates to COVID-19 or climate change, expert opinions are now casually dismissed in favor of armchair commentators. All the while, the true experts wrestle underlying complexities, relying on the assessment of hard evidence, not emotion, and the proper frameworks.
Nowhere is this failing more present than allegations that Israel has committed genocide against the Palestinian people. These circled within days of the October 7th attacks, before Israel's now-ceased military campaign had begun in earnest. For its critics, tarnishing Israel with the label of genocide, the most heinous crime under international law that precipitated the founding of that very State, has proven irresistible.
Take the International Association of Genocide Scholars ("IAGS") - an organization regularly cited in top tier press. Its resolution earlier this year alleging that 86% of those who voted claimed that Israel had committed genocide in Gaza is riddled with flaws. In fact, only 28% of members participated in the vote - just above the 20% minimum required for a resolution to pass, with membership available for just $30 a year.
This resolution fails the basic standards of international law and scholarship, it erodes the integrity of genocide studies, and threatens to undermine the very meaning of the term 'genocide'.
Following the report, I felt compelled to establish Scholars for Truth about Genocide. The group brings together over 500 legal experts, professors of antisemitism, history and sociology, and former Nazi prosecutors. The group aims to provide substantive, expert opinions on the conflict and correct the current misapplication and misunderstanding of international law.
It was a mere two months after October 7th that South Africa launched a case before the International Court of Justice (ICJ), alleging in haste that Israel was committing genocide. Those proceedings at the ICJ continue – the case has not yet reached the merits stage, and a resolution is not expected until 2027 or beyond.
But South Africa is not having its way, and its claims are not helped by the Jewish state willingly assenting to the current ceasefire. Israel has rejected the accusation outright.
At an ICJ hearing on provisional measures in January 2024, the Court accurately determined that Palestinians have 'plausible rights' to protection from genocide; but it did not rule – despite some false reports – that Israel was plausibly committing genocide.
A focal point of the ongoing case will be the question of intent. Under the 1948 Genocide Convention, South Africa must fully conclusively prove that Israel demonstrated specific intent, dolus specialis, to destroy, in whole or in part, the Palestinian people of Gaza.
Despite social media commentary, South Africa will fail to do so. Israel has fought a legitimate war in unprecedented conditions against a uniquely evil and uncompromising enemy, a combination of factors that justified its military campaign and rule out genocide.
Starting with the threat as it existed: Hamas, not a government, but a proscribed terrorist organization, has admitted to using Palestinian civilians in Gaza as a shield for their operations by embedding in Gaza's civilian infrastructure. Until their release on 13 October, Hamas held Israeli hostages in and beneath Gaza's hospitals and is known to have used the Al Shifa Hospital as a military command center.
In combination with Hamas' labyrinthine network of terror tunnels, direct conflict – combatant to combatant, without harm to civilians – was almost impossible.
In this context, Israel rightly adopted a strategy that allowed it to fight a legitimate war in compliance with international law. South Africa's case at the ICJ ignores the modus operandi and callousness of Hamas, confirming its political motivation and sympathy for terror tactics.
Hamas infrastructure is not mentioned, and Israel is not credited for its consistent efforts to minimize harm to civilians, for example by providing advance warnings to citizens prior to incoming strikes.
South Africa is similarly myopic when it comes to the humanitarian crisis in Gaza. Gazans have suffered immeasurably, but they have suffered under Hamas. Israel has taken unprecedented steps to allow and facilitate delivery of necessary aid. More than 2 million tons of aid, including 136 million meals since May 7th of this year, have been distributed to Gaza.
Israel, therefore, continues to work to prevent the dire humanitarian situation in Gaza as Hamas monopolizes, diverts, and materially benefits from supplies meant for Palestinian civilians.
This reflects the rhythm of the ICJ case to-date. South Africa accuses Israel of committing crimes when, in fact, Israel is seeking their redress.
Reports that South Africa-aligned NGOs, such as Amnesty International, are calling for the scope of the term genocide to be expanded are also a grim threat to jurisprudence and the ongoing legal process. They ultimately reflect South Africa's failing confidence in its case which cannot be won under the Genocide Convention.
Israel will make its case to the ICJ in full in 2026, but its merits must be assessed not by the court of public opinion, but the just proper application of the law to the proven facts. Attempts to prejudge the outcome of this process should be condemned and rejected out of hand.
If the process is allowed to run its course, and the legal definitions adhered to, South Africa will fail in its ill-motivated attempt to tar Israel with the brush of genocide.
Elliot Malin is an attorney and Chair of the Nevada Governor's Advisory Council on Education Relating to the Holocaust and Genocide Education in the Nevada Department of Education. He is also the founder of Scholars for Truth about Genocide, a panel of academic, legal, history and genocide experts concerned with attempts to misapply law and history.
