Why Germany Should Join Sides with Israel before the ICJ in its Defense against South Africa’s Accusation of Genocide
Yesterday and today, the ICJ heard an application for provisional measures brought by South Africa, in which Israel is accused of the particularly serious crime of genocide against Palestinians in Gaza due to its reactions to the Hamas attacks of 7 October 2023. Leaving aside specific questions of “provisional measures”, the proceedings raise fundamental questions of the determination and attribution of the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” (Article II of the Genocide Convention). In proceedings initiated by The Gambia against Myanmar concerning the genocide of the Rohingya in 2019, similar questions of attribution and evidence arose. In November 2023, Germany, together with Denmark, France, the Netherlands, the United Kingdom and Canada, took a position on these issues by way of an intervention under Article 63 para. 2 of the ICJ Statute and supported The Gambia’s position as applicant. This participation in the proceedings, as well as other reasons to be explained below, speak in favor of also declaring an intervention in the proceedings between South Africa and Israel – in this case, however, with the aim of supporting Israel as defendant and countering the South African argumentation.
Characteristics of intervention before the ICJ
The ICJ Statute provides for intervention by third states in two different forms. First, there is the possibility of intervening if a state considers that its own legal interests may be affected by pending proceedings (Art. 62 para. 1 ICJ Statute). This is unlikely to be an option for Germany in the current proceedings, even considering the special historical connections between Germany, Israel and the Genocide Convention. Ultimately, Germany is not differently affected than any other party to the Genocide Convention.
Apart from this, a state may also intervene if a pending case concerns the interpretation of a multilateral treaty to which the intervening state is also a party (Art. 63 para. 2 ICJ Statute). The interpretation of a multilateral treaty has a high precedential effect for all other contracting parties, regardless of the judgement merely having a bilateral binding effect between the parties to the dispute (Art. 59 ICJ Statute). Therefore, all other contracting states are being given the opportunity to participate without having to assert a specific legal interest of their own. This general purpose of an intervening party under Article 63 para. 2 ICJ Statute can be regarded as largely consented, despite many other unresolved issues in the law of intervention. It also formed the basis for the declaration by Germany and its partners in the proceedings between The Gambia and Myanmar mentioned at the beginning of this post. This purpose also explains why – in contrast to the notion of intervention in many domestic settings – the intervention does not have to be declared explicitly in favor of one of the parties to the dispute. The focus is rather on protecting one’s interest in a particular interpretation of the treaty than on supporting one of the parties to the dispute. Notwithstanding this, the decision on a declaration of intervention naturally also has a considerable political dimension – as is the case with much of international law. This becomes very clear in a press release by the Federal Foreign Office on the declaration of intervention in the proceedings between The Gambia and Myanmar, in which, on the one hand, basic questions of the interpretation of the Genocide Convention are addressed, but on the other hand, a clear position is taken in favor of The Gambia and thus against Myanmar. The political positioning is even clearer in Germany’s declaration of accession in a third current case based on the Genocide Convention, namely the one between Ukraine and Russia (see, for example, the analysis in German here).
Why should Germany declare an intervention in the proceedings between South Africa and Israel?
Firstly, because of continuity. The proceedings between South Africa and Israel are the third to be brought before the ICJ within a comparatively short period based on the jurisdiction clause in Art. IX of the Genocide Convention. As just mentioned, Germany submitted a declaration of intervention in the two previous proceedings. In the proceedings between Ukraine and Russia, Germany expressly justified its declaration of intervention with its own history (para. 14). If Germany’s own history was part of the motivation for the declaration at that time, in order to be consistent, this must apply even more regarding an accusation of genocide brought against Israel. This does not mean that, for historical reasons, Germany must defend Israeli positions unconditionally or in a one-sided manner. But Germany’s historical responsibility does mean that it must make every effort to ensure that the Genocide Convention is interpreted and applied appropriately, especially in the Middle East.
Although intervening parties do not become parties to the dispute, they acquire their own procedural position, which includes, for example, the possibility to submit written statements and participate in oral proceedings (Art. 86 Rules of Court). These opportunities for participation are an important instrument for exercising responsibility for the Genocide Convention.
Moreover, an intervention gives Germany the opportunity to clarify and further develop its own position formulated in the declaration of intervention in the proceedings between The Gambia and Myanmar. In this intervention, a strong emphasis was placed on sexualized violence, violence against women and children, and the creation of conditions of life calculated to bring about its physical destruction. In view of the terrible humanitarian situation in the Gaza Strip, these aspects become once again of fundamental importance in the present proceedings. South Africa’s application argues with an extensive list of measures described as “genocidal acts” (paras. 43 et seq.), which are closely linked to Israel’s massive use of military force and demonstrate the unbearable current living conditions. However – and in this respect the situation in the Gaza Strip differs fundamentally from that of the Rohingya in Myanmar – the military conflict between Israel and Hamas must be taken into account when conclusions about a possible genocide are to be drawn from the extent of the use of military force and from the extent of destruction of civilian infrastructure. South Africa completely ignores Israel’s self-defense situation. This is not to say that all of Israel’s actions are covered by the right to self-defense and are therefore justified. However, even excessive self-defense does not automatically constitute genocide, but “merely” a violation of international law. Thus, the alternative “Self-defense or Genocide?” (see the heading of an article in German linked here) is a simplified and incorrect description of the situation. The same also applies to possible violations of international humanitarian law or human rights guarantees. Even if they exist, they do not automatically establish genocidal intent.
One of the central legal questions in the ongoing proceedings will be how and when the “intention to destroy, in whole or in part, a national, ethnical, racial or religious, as such” can be inferred from a combination of the massive use of military force and statements made by political leaders and other officials during an ongoing military conflict (some of which are difficult to bear…). In that regard, plausible alternative interpretations must not be completely ignored. The ICJ expressly declared this in connection with the Yugoslavia conflict: “[…] in order to infer the existence of dolus specialis from a pattern of conduct, it is necessary that this is the only inference that could reasonably be drawn from the acts in question.” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, l.C.J. Reports 2015, p. 3, para. 148). Regarding the measures taken by Israel, such a plausible alternative interpretation does exist. The military measures could be understood as aiming at the destruction of the Hamas terrorist network and not to annihilate the Palestinian population. Thus, even though the high number of civilian deaths and the enormous material damage are appalling, they do not automatically prove the intention of genocide. The repeated requests to the civilian population to leave certain parts of the area or the observance of the duty to warn and set a deadline before withdrawing protection from a civilian hospital when it is “used to commit, outside their humanitarian duties, acts harmful to the enemy” (see Art. 19 IV Geneva Convention) are two concrete examples of precautionary measures taken by the IDF which may speak against such an intention.
Unfortunate focus on the accusation of genocide
By way of conclusion: It is, of course, to be welcomed in principle that the South African application leads to the emotionally and politically highly charged conflict between Israel and Palestine being channeled into arguments of law, which by its nature promises a rational and structured form of dealing with disputes. As the “principal judicial organ” of the United Nations (Article 92 of the UN Charter), the ICJ is also the appropriate forum. However, it must not be overlooked that the scope of the ICJ’s jurisdiction depends on prior consent by the parties to the dispute. Under the Genocide Convention, the contracting parties declared their consent to the jurisdiction of the ICJ as early as 1948. Unfortunately, however, this does not apply to most of the other rules applicable to the conflict between Israel and Palestine. Therefore, the ICJ lacks jurisdiction with regard to international humanitarian law, international human rights guarantees and, above all, the UN Charter and the right of self-defense. This limitation leads to a very unfortunate focus of public attention on the accusation of genocide and, at the same time, limits the ICJ’s options regarding its decisions. It is not foreseeable whether the overly narrow focus on genocide will trigger a dynamic of its own at later stages of the present proceedings and, if so, in which direction such a dynamic will point. This uncertainty in further development is another reason for Germany to participate in the proceedings.
I am indebted to Narin Nosrati for her support in translating the German version of this post.
Your blog entirely disregards the historical situation, the fact that the nakba has been carrying all signs of genocide and eviction of a people. The terminology “unfortunate focus on genocide” when an estimated 30 000 civilians with majority of whom are children has been killed is a disgrace from someone functioning as a public body representing law. There has been a 80plus pages long report of the genocidal intention of Israel towards Palestinians which is by the way public . I hope you are courageous enough to post this. I am ashamed to share nationality with people like the Germans these days.
Omitting or ignoring the scrupulously and extensively documented war crimes, as well as the blatantly genocidal and unpunished language of members of the Israeli government and its military body just to pretend to take a dubious leadership role vis-à-vis the EU and the Western world is irresponsible and only jeopardises national and international security.
@ Toni Steffens
I wholeheartedly disagree with your position.
“an estimated 30.000 civilians” does not correspond to the Hamas figures.
According to Barron’s/ AFP: of today: “The health ministry in Hamas-run Gaza said Saturday at least 23,843 have been killed in the territory in 99 days of war between Palestinian militants and Israel.”
in addition, Hamas does not differentiate between civilians and fighters.
Furthermore, please do not forget who abuses of these civilians, using them as human shield with the sole intention to make IL actions look like violating international law. A devious manoeuvre of the terrorist group Hamas.
It is turning things upside down to hold IL responsible for the inhumane and devious strategy of Hamas actions aimed at making IL/ jews disappear (genocidal intention officially published by Hamas).
I appreciate Germany taking a clear position, finally, following these cowardly abstentions in the UN.
No reason to be ashamed of our nationality, to the contrary.
We will see what the ICL decides in the urgency and main proceedings.
Wholeheartedly in agreement.
Hi everyone,
Three days later, today, the numbers have increased from circa 23,843 to 24,000. AFP and Reuters are also saying that 8000 are missing. If we round all numbers up, those who have been confirmed dead and those who are missing, then 30,000 + is a plausible number.
Having said that, it’s sad how we’re fighting over the numbers of the dead to prove a point, as if those who have lost their lives and entire families and children are just details to fuel a debate of those who are with or against.
What a shame.
on top of arguing about numbers, the bigger shame is to focus on victims of one side in the conflict.
What on earth was the justification for Hamas to raid Israel villages and kill/abduct on site whoever they came across, including infants as small as < 1 year, and the aged in their 70s+, at parties, in homes, including in their beds?
Innocents have perished in this conflict on both sides, and it helps nothing to be biased in emotional submissions we are seeing everywhere. Arabs and Israels are all people who deserve good alike, and we should all look at the situation in balanced way irrespective of religious or geopolitical inclinations.
Germany never fully admitted its role in multiple genocides. It took them over 100 years to partially admit genocide in Africa, still trying to avoid talks about taking full responsibility and everything else that goes with that. At same time suppressing Palestinian in Germany,. So yes Germany can help Israel to avoid and fight genocide accusations., they have a lot of experience.
“23 708 personnes ont été tuées” le Monde du 12/01 (source Hamas)
As many , you give us false information : 30000 civilians….
This is propagande not information
Dear Mr. Mazouz,
Today, Reuters and AFP have reported that more than 24,000 Palestinians have been killed and 8000 more are missing. If we were to calculate both sums, then the number of those killed would be above 30,000.
Generally, the numbers provided by Gaza’s health ministry have shown historical reliability.
For preliminary research on the topic, please read the Guardian’s “Can we trust casualty figures from the Hamas-run Gaza health ministry?”.
Thank you so much for this reply!! Even reading the headline gave me chills so i absolutely feel the same way you do!!! Thanks for speaking up and exposing this cruelty and wrongdoing.
Germany should have a sense of shame for what they have done to the Jewish people in the past.With that being said,railroading Palestinian civilians because your a sense of shame shows that Germany merely learned to redirect their injustice rather than deal with it.So much respect for Germany has rightfully been lost.The blood of innocence is on Germany hands too!
Germany has learned nothing from the Holocaust. The slogan “Never Again” has the force that it has because it expresses universal norms accepted by rational individuals, groups and institutions: https://www.un.org/en/about-us/universal-declaration-of-human-rights
These rights apply everywhere and nowhere specifically, to everyone and no one specifically. That is, they are universal in scope. They apply whenever and wherever those rights are violated and those crimes committed. If Germany wished to express contrition for the Holocaust, if it wanted to honor the memory of those the Nazis killed, which was not limited to the Jews, it would intervene on behalf of the Palestinians in Gaza and the West Bank if it had cause to do so. That is what the Universal Declaration and the Genocide Conventions require of the states.
The historical context provided by South Africa is one-sided and only reflects the historical period as understood by one party in the conflict. Histories on both sides are politicised for the aim of trying to make one party be deemed more moral and more just than the other.
Given that records from Arab states about the 1948 war are not open, it’s impossible to get a full accurate picture of what happened. However the Israeli and Western records are open and suffice to say no genocidal intent was demonstrated. It’s also questionable that a systematic endeavour was taken at ethnic cleansing as well. What we do know is that Palestinians were forcefully removed in circumstances, and some fled because of the fear of potential atrocities occurring. In no way does that justify Israel’s actions at the time, neither does it justify accusing it of the most heinous crime imaginable.
The historical picture also blatantly ignores how the war in multiple stages was initiated and the historical context both within the time of the Ottoman Empire and British mandate played out. As argued by Prof. Malcolm Shaw KC, the argument for historical context could go well back two to three millennia.
Given the substantiative content in South Africa application is from post October 7th, then the immediate context surrounding that date is the most applicable.
Regards civilian casualties, Hamas makes no distinction between civilian and combatants in both its calculation and overall military strategy, which South Africa blatantly ignores. No neutral and reliable estimate for both combatant and civilian casualties exists. Only the IDF is making estimates of the number of combatants. What we do know is civilians are being killed but at what proportion to combatants we do not know. If the IDF’s figures are accurate, then the civilian:combatant casualty rate stands at 2:1 which is not indicative of genocide.
The vast majority of South Africa’s documents highlights the devastation in Gaza without demonstrating that genocidal intent is the only plausible explanation for such devastation. This is highly irresponsible form of argumentation. Either South Africa need demonstrate that Hamas’ strategy is vastly different from what Israel claims it is, or it must demonstrate that it has little bearing on what’s happening in Gaza. So far it has failed to do either. As a result, the military context of Israel’s actions is relevant in determining whether the Genocide Convention even applies.
The vast majority of the quotes by the key figures who determine the aims and goals of the war effort (the War cabinet) aren’t genocidal. Netanyahu has used Amalek in reference to Iran back in 2010 at Auschwitz on International Holocaust Remembrance Day – Iran frequently talks of the annihilation of Israel in remarks that are explicitly genocidal in character. The context provided by Malcolm Shaw in the hearing strongly implies that Hamas is Amalek, not the Palestinian people, which also used explicit genocidal rhetoric and going further with actions as well. His usage is consistent with the Amalek reference found on the Holocaust memorial found at the house of the ICJ The Hague as well. Yoav Gallant’s comments are the most concerning however he has a history of utilising brutal unequivocal language as a means of projecting Israeli power. The use of language is unacceptable but plenty of comments by him suggest it is aimed at Hamas, not the Palestinian people.
The comments that are definitely genocidal are better characterised as incitements to genocide which is a crime under the Genocide Convention. It will remain to be seen whether the Attorney General investigation into such comment is sufficient in ensuring Israel is upholding its obligations under the Genocide Convention. This is a matter of doubt that legal experts dismissive of the claim Israel is conducting genocide are concerned about. Some believe Israel has not done enough.
In a world in which genocidal terrorist organisations, such as Hamas and IS, used tactics and strategies that blatantly defy the Geneva convention, the Genocide Convention and other aspects of International Humanitarian Law, Germany has every right in ensuring that these aren’t weaponised so nefarious agents can use such legal measures as a means of waging war in complete disregard and defiance of them while gaining a military advantage. My hope is that the UK joins in as well.
If Israel is committing genocide, then the ICJ must ensure that the nefarious uses of humanitarian law aren’t deemed permissible in determining the outcome. Otherwise humanitarian law will serve those who only the values the death of human life, not the fulfilment of life.
Can you please provide a link to the archives of Israel, that highlight what exactly happened in the time of the Naqba?
If Israel indeed did commit violent actions to force people to leave and others left in fear of their lifes and becoming victim to this violence, you would not describe this as ethnical cleansing? What would you call it than?
From what I have heard, Israel has not been particularly open about the events of Naqba.
Thank you!
I cannot understand how the right to self defense can take precedence over genocidal intention if they are determined to be so. With this reasoning there would be no way to stop a genocide of happening if it was done under cover of self defense. The reason the genocide is done cannot be taken into question. They main question is : is there intent and proof that this intent is carried out, and there is plenty. Israel cannot self govern its army against genocide if the intention of genocide is transmitted from its own governing bodies.
I would add that I am absolutely dumbfounded that Germany has actually decided to intervene on Israel’s behalf. The question I have is : under what circumstance if any would Germany be able to condemn any actions done by Israel? Germany is not an impartial party to this dispute and cannot be in regards to its history on the subject. I am also shocked by the fact that of all things Germany could have done in this very particular situation it has decided to specifically not come to the help of another population that is being dehumanized and in dire need of protection against what is indeed a behavior that has some clear genocidal characteristics. I also hope you will post my comments.
There is no evidence at all of genocidal intent on the part of the state of Israel. There is plenty of genocidal intent on the part of Hamas – an organisation which is very open about its genocidal intent.
I for one as a German m rather proud that my government has decided to support Israel in front of the ICJ, against this slander.
@ Kaffeesatzleser
Totally agree with you.
“There is no evidence at all of genocidal intent on the part of the state of Israel. ”
There is in fact plenty of evidence to demonstrate the genocidal intent.
A good selection is summarized in page 59-67 of the SA application to the ICJ:
https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf
SA has posted a completely incomplete, truncated record of what was being said and what the aims of Israel are. Not very convincing.
Dear Kaffeesatzleser,
To sum it up, South Africa has accused Israel of 8 “genocidal acts”. Here they are.
1. Killing Paletsinians: so far, more than 24,000 Plaestinians have been killed and 8000 more are missing.
2. Causing serious bodily and mental harm:
Over 59,410 Palestinians have been injured. More than 1000 children have lost limbs.
3. Mass expulsion from homes and displacement:
85% percent of Gaza’s population has been forcibly displaced.
4. Deprivation of food and water:
through a complete siege on Gaza, blocking electricity, water, food, and fuel.
5. Deprivation of shelter, clothes, hygiene and sanitation:
many Palestinians have lost their homes and do not even have access to clean water or toilets.
6. Deprivation of medical assistance:
Israel carried out over 230 attacks on Gaza’s health system. Hospitals are performing surgeries without anaesthesia or proper sterilisation and working under flashlights due to lack of supplies.
7. Destruction of Palestinian lives:
the obliteration of entire neighbourhoods, housing, infrastructure like sidewalks, agrivulture, schools, religious sites, community spaces, bakeries and cultural institutions.
8. Imposing measures intended to prevent birth:
70 percent of those killed in Gaza are women and children. The acse also calls out unsafe birthing conditions and increases in premature births, infant mortality and birth complications.
You say there is no genocidal intention. If we take Gaza, it is true it is complicated to prove given the self defense war which is going on, and Israel is taking full advantage of this situation. But you forget there is a very clear example of what Israel intentions towards the Palestinian population are : the West Bank. Colonisation is going on at a very rapid pace. Basic human rights are disregarded. Palestinians can be put in jail without any documented offense and no judgment, and this is indeed the case for most. Palestinian houses are being systematically destroyed, without any law governing this. Settlements are being approved and constructed directly by the government. Settlers are increasing their attacks towards a population who have not taken arms. How can the intentions of Israel be more clear than what is going on, with absolute and total disregard to international law, in the West Bank ? It would be easy to disregard and view the war in Gaza by itself, but it is not. It is a continuation of a long history of dehumanization and disregard to international law that has been going on for more than 30 years in the West Bank. Jewish supremacist Itamar Ben Gvir now minister of national security ? I can’t wait to see how long Germany will be able to back the governments he is part of.
I fully support this argument, the historical context should not be ignored. It is irresponsible to rely entirely on an event in the recent past, intentionally omitting preceding events and responsibilities, in order to justify collective punishment its an active endorsement of a war crime.
To omit or ignore the scrupulously and extensively documented war crimes as well as the blatantly genocidal and unpunished language by members of the Israeli government and its military corps is irresponsible and only endangers national and international security. Instead, owning up to the mistakes, sanctioning and de-escalating the unconscionable military response can prevent genocide, the illegal displacement of millions of innocent people from an occupied land and pave the way for an effective humanitarian response and consequent peace. Something so humanly basic should be above the immediate economic interests and alleged responsibilities or complicit commitments of the past.
Self-defence does not take precedence over a violation of the Genocide Convention, nor can self-defence justify such a violation, if it exists at all. However, since the discussion is being held against the background of the application for provisional measures, an ordered halt to Israel’s military activities, which could (!) constitute necessary and proportionate self-defensive measures, would eventually (!) deprive Israel of its right to self-defence, which according to Art. 51 UNC should not be impaired by anything in the Charter, e.g. the Court’s rulings. Because the jurisdiction of the Court is as narrow as described in the post, the Court will have to exercise restraint in its assessment on self-defence. In the hearing on the merits, however, self-defence can no longer be an issue.
Expressions of intent of displacing and destroying the Palestinian people in Gaza as a whole, that is, not just Hamas, but innocent men, women and children. by Israeli officials and Government ministers, by Israeli military figures, army personnel and citizens, has been well documented.This is reflected in the very conduct of Israel‘s response in Gaza. All this had been detailed by WHO and UN staff, as well as various other human rights organizations and individuals on the ground. This information is publicly available.
This is a very enriching and informative article for us lay people, especially the part about the limitations of the court and its scope. Thank you. There are some non-legal points made that deserve a rebuttal, such as the IDF allowing people to adequately flee. There are reports by human rights organizations and resources in the English speaking media that show otherwise. Regardless, I am here to say that the most important reason Germany should side with Israel is the necessity to defend itself by association. By assisting Israel and equipping it with arms, Germany might be found to be complicit in genocide if Israel is ever to be found guilty of such a crime. Germany should therefore fight tooth and nail for the Israeli side so that it does not end up a pariah once again on the world stage.
Matbe it should not and start to stand up for the right side and right values such as protection of ALL civilian life. If you already fear that Germany could be hold accountable as accomplice of Israel in a GENOCIDE than maybe because we ARE doing something wrong – such as supporting genocide. And just to remember the basic human values – supporting genocide is not a good thing to do
Upholding basic human values would mean not negating Hamas’ crimes and the right and obligation of Israel so protect its citizens. Hamas is a genocidal cult.
“South Africa completely ignores Israel’s self-defense situation.”
This is incorrect. South Africa did in fact address this.
And Israel does not have a right to self-defense in a territory on which it is a belligerent occupying force, like in Gaza. That the right to self-defense is not applicable in such a situation should be completely obvious, and this has also already been clarified in an advisory opinion of the ICJ in 2004, where it determined that the border fencing Israel constructed to impose a land blockade on Gaza is illegal under international law and cannot be justified by any claims of “self-defense”.
“The military measures could be understood as aiming at the destruction of the Hamas terrorist network and not to annihilate the Palestinian population.”
Dozens of acts cited by South Africa as genocidal in nature do not have any military value in a struggle against Hamas fighters whatsoever – they only hurt the Gazan civilian population.
How can Israel be an occupying force in Gaza when Hamas is running Gaza and was able to use it to bomb Israeli cities (regularly) and undertake the attacks of 7 October? Hamas wants to end Israel here – they (!) are the ones which w genocidal intent.
belligerent occupying force, ? Before october 7 , no one israeli stand in Gaza…
Dear Mr. Schüler,
the ICJ advisory opinion you stated was just speaking about the Defense Wall in Judea and Samaria/the West Bank. Israel constructed this wall after Palestinian terrorists coming from Palestinian cities have murdered more than 1,000 Israeli civilians.
But Gaza is not inside this territory at all.
Gaza is bordering the South of Israel and shares a border with Egypt.
The ICJ advisory opinion does not speak about Gaza at all.
Regarding the “blockade” of Gaza: Israel is not imposing a siege on Gaza. This is also not possible, since Gaza has a border with Egypt.
Most importantly, the assumption that Israel is an occupying power is wrong.
Under the narrow definition of occupation (“boots on the ground”), Gaza has not been occupied since 2005 at the latest, as not a single Israeli lives in Gaza – Adolf Hitler, who is adored by Hamas [1], would say that Gaza is “Judenrein”.
The requirements of the broad definition of an occupation (“effective control”) are not fulfilled in Gaza neither. If Israel had control over what goes on in Gaza, it would hardly have allowed more than 25,000 rockets to be fired at its citizens since 2007, every single rocket with the aim of killing as many Jews as possible.
Israel left Gaza in 2005. It left in Gaza also a complete functioning infrastructure, even greenhouses.
Just one day (!) after Israel left, there was complete chaos in Gaza.
Synagogues were burned and the greenhouses were looted. [2]
That was tragic for the ordinary Gazans who just want to live in peace and earn money for a decent living.
But it was not Israel’s fault.
[1] https://www.nzz.ch/feuilleton/hamas-ist-von-hitler-inspiriert-ld.1761991?reduced=true
[2] https://www.spiegel.de/politik/ausland/nahost-chaos-nach-raeumung-des-gaza-streifens-a-374523.html
The South African case is not simply based on a high civilian death count and statements by the Israeli political class.
SA has also not ignored the right to self-defense, nobody has. They have demonstrated that self-defense has become and does not excuse societal destruction, the viciousness, disdain and illegality is broadcasted regularly from the ground by IDF soldiers themselves on social media. The entire world is seeing the hatred of an entire people on full display, as IDF soldiers show absolute enjoyment in their decimation of homes, people, cemeteries, just everything.
Something you have ignored, Israel is an occupying force. The ”right“ to defend oneself is already contradicted by the fact that conducting an occupation, restricting a society, is an attack on a people.
Casualties in Gaza are approaching 100,000 people in a few months. If that alone doesn’t compel you to insist the attacks stop, then tell me at what point it would need to reach. It‘s absurd to continue to call this self-defense. Israel likes to claim us that those numbers are Hamas estimates, which apart from historically being accurate in earlier times of conflict, are all we have because Israel does not allow any independent inspection, not in Gaza nor at the sites of 0ctober 7th.
It is using the Oct 7th attack as a pretext for unparalleled offense.
To think that Germany is now going to intervene in support this absurdity is nauseating. However it’s certainly not surprising, as it‘s not a difficult legal dot to connect how Germany, the USA, etc. enable Israel to continue “self-defending“, themselves.
I Israel is withdrawn from Gaza since 2005
This is not my opinion , this is fact
Dear Mr. Mazouz,
It is important to note that interpretations of international law can vary, and different perspectives may exist on this matter.
For instance, the United Nations maintains that Gaza is deemed as territory under Israeli occupation, subject to international humanitarian law. This determination stems from Israel’s imposition of an air, sea, and land blockade since 2007. According to international law, the classification of occupation is not contingent on the presence of ground troops but is based on the assertion of “effective control.”
For starters, please read the Atlantic Council’s take on the issue in their article titled “Israel claims it is no longer occupying the Gaza Strip. What does international law say?”
Many opinions are not all correct. If a territory is surrounded by two countries, like here Egypt and Israel, how is Gaza in ”blockade by Israel’? Surely they wouldn’t be in blockade if Egypt didn’t block them as well, which begs the question why? The answer is very simple, they elected a terrorist organization to rule Gaza and neither Egypt nor Israel should be forced to give up their security to please the genocidal urge of those terrorists to murder innocent civilians like they did on 7 October. They should especially not do so in order to please European salon leftists whose knowledge of history stops in 1917 if not later.
Thank you
Germany considering its past should remain either quiet or support SA pledge asking the investigation of a possible genocide.
Germany indeed has a moral obligation in this case, but not the one you are so disingeniously implying.
I am proud that Germany stands with Israel against this slander.
That’s the point.
This blog suffers from several serious shortcomings and biases that weaken its overall claim. Here is some evidences, (in addition to what has been mentioned before):
First, although speaks in the language of law, it is generally purely political in nature. The writer completely ignores the other legal point of view, which is based on overwhelming evidence, documented evidences, and direct statements from senior officials in the Israeli government, including the PM, indicating an intention to genocide and eliminate the people or at least part of the people of Gaza.
Second, it frames the situation primarily as a binary choice between “genocide” or “self-defense,” overlooking the possibility of other relevant legal violations and ignoring the history of Israeli settlements and policies towards Palestinians.
Third, it downplays the devastating consequences of Israeli military actions on Palestinian civilians, focusing instead on Israel’s self-defense narrative and precautionary measures, leading to an imbalance in representation of the conflict.
Forth, it fails to acknowledge the power imbalance between Israel and Palestine, which significantly affects the interpretation of actions and motives.
Fifth, it mentions specific Israeli actions supporting its argument while omitting details on Palestinian actions or broader context like the legality of settlements and blockades.
Sixth, it criticizes South Africa for ignoring Israel’s self-defense argument but doesn’t raise the same concern about Israel potentially ignoring Palestinian self-defense claims.
Seventh, it arguments obviously driven by a pro-Israel stance rather than a neutral legal analysis, raising concerns about its objectivity and credibility.
Eighth, it reduces a nuanced and deeply emotional conflict to a legal debate, neglecting the historical, political, and social complexities underlying the situation, and the suffering of the Palestinian people during 76 years.
1. The blog explicitly states that Germany’s support for the defence is a political action, just like those who support the ‘prosecution’ case.
2. It makes those points because they’re the most relevant to the ICJ case at the stage it is at the moment. The blog is focussed on the legal ramifications of the case, not the conflict as a whole.
3. The blog is focussed on whether Israel’s actions constitute genocide, which has a very specific meaning. It’s entirely possible to accuse Israel of committing crimes against humanity and committing war crimes, while still believing those actions are not genocidal in nature.
Here’s the relevant passage which includes a dismissive suggestion of what you claim this article does, turn this into a binary matter of self defense or genocide:
“However – and in this respect the situation in the Gaza Strip differs fundamentally from that of the Rohingya in Myanmar – the military conflict between Israel and Hamas must be taken into account when conclusions about a possible genocide are to be drawn from the extent of the use of military force and from the extent of destruction of civilian infrastructure. South Africa completely ignores Israel’s self-defense situation. This is not to say that all of Israel’s actions are covered by the right to self-defense and are therefore justified. However, even excessive self-defense does not automatically constitute genocide, but “merely” a violation of international law. Thus, the alternative “Self-defense or Genocide?” (see the heading of an article in German linked here) is a simplified and incorrect description of the situation. The same also applies to possible violations of international humanitarian law or human rights guarantees. Even if they exist, they do not automatically establish genocidal intent.”
Four, the power imbalances are irrelevant when it comes to determining genocide. They can be relevant in determining proportionality in war, but even then likely not in the sense you’re thinking. Given the power imbalances and population density in Gaza, if anything it suggests a genocide by Israel isn’t occurring but Hamas’ ‘attack’ was. Israel has the capability of killing far more Palestinians than it has, which begs the question why haven’t they? If genocide is occurring, the number of civilians killed isn’t a strong point and other means would need to be looked at.
Five, the legality of the settlements and the occupation is relevant only in the West Bank not Gaza. Those policies are certainly oppressive and are crimes against humanity, but given the population has been growing there is no evidence that they are done with the intent of destroying the Palestinians in full, or in part.
Six, October 7th was not an act of self-defence. Systematically raping people, mutilating them, burning them alive and all done deliberately against civilian targets is not self-defence. All these actions not only breach humanitarian law, but Islamic law as well. There are means of resistance in which self-defence would be a satisfactory reason, for instant guerrilla efforts targeting solely the IDF. If Hamas wants to be a resistance movement, perhaps it should consider behaving like one first.
Seven, it is objective in its analysis. Objectively, there is very little evidence that suggests genocide is occurring. There is objective evidence for war crimes. The blog mentions that all the actions taken by Israel aren’t necessarily following international law.
Eight, good. When emotions run so high, reasonable debate about the merits and flaws of the cases of both sides gets ignored in favour of satisfying emotional drives and impulses of he advocates of each position. Not only does it make reasoned discussion much harder, if not down right impossible, but it is a detriment to peace as both sides stopping listening to concerns and grievances of the other. It’s much better letting the matter of the nature of what Israel’s actions are be determined in a court of law, not in emotional shouting contests like we see on Twitter. It’s a blog about the ICJ case and Germany’s subsequent involvement, not about the Israeli-Palestinian conflict as a whole.
Thank you for this article. Your thorough analysis of why Germany should intervene in the ICJ proceedings between South Africa and Israel is compelling and well-articulated.
Certainly, it’s important to acknowledge that many observers may be influenced by the propaganda disseminated by Hamas as part of the social media warfare. The emotional impact of such content can sometimes cloud rational thinking. It’s crucial to approach discussions on this matter with a clear understanding of the broader information landscape and to critically evaluate sources to ensure a well-informed perspective. Thank you for doing so.
Has Germany no shame. Here’s a country that has a history of conducting genocides in Nimibia (1904-1908) and in Germany itself. Now with that lack of moral authority we are presented with an absurdity of Germany intervening at the ICJ AGAINGST preventing another genocide. Just shameless, Germany!!
Dear prof. Walter, I see your argument that Germany should intervene based on its historical position for the sake of continuty in its legal and even political position. However, I fail to see how your suggestion will ensure that continuity. I remind you that Germany’s interventions until today were in favour of the (allegued) victims of genocide and not the allegued perpetrators. You provided the example of German position on sexual assualts. That German position specifically promoted a sufficiently comprehensive, just and victim-friendly interpretation of the Convention. At this point, I fail to see whether Germany has any interest in supporting a narrower interpretation of the Convention, which could only benefit a perpetrator – whether in this case or in any future case. In this context, I would like to ask you (i) whether Germany has any legal, historical or another interest whatsoever to promote a more restrictive interpretation of the provisions related to the procedures or merits of a genocide case? (ii) whether and how Germany’s legal, historical or political position changed in a way to create a justification to stand next to a government before the ICJ, which has heavily been using a language of dehumanisation and which has been heavily critisized by credible human rights organisations and international organisations based on well-documented evidence?
Dear Prof.Walter,
Mainly at the artikel ,instead of the answer of the why Germany should join the case,you have explained the procedure.Yes, tecnically Germany may declare an intervention.But where is the law??
Germany ´s historical obligation is couldnt be argument. This is not law,this is politics.
And South Africa´s main request is not the acceptance of genocide.Request of provisional measures.You havent been consider this.
Dear Christian,
I am amazed how many Western Government are intent on undermining South Africa’s case against Israel to the ICJ, even though this Top UN Court has now ordered Israel to comply with international law on genocide. Germany in particular, appears to be taking the ‘moral high ground in this matter, choosing to forget that if they had not perpetrated the ‘Holocaust’, there would be no need for a Jewish state on the Land of Palestine. When I hear the Israel Defence minister refer to the residents of Gaza as ‘Human Animals’, it reminds me of how the German Government once referred to Slavs as ‘da untermench’ or ‘life unworthy of life’. A little humility in this matter would be appropriate, as condoning a second genocide will not wash your hands clean of the blood of the first genocide, as all human life is sacred, even that of the Palestinians.