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You don't need "intent" to risk a genocide

A lot of South Africa's case against Israel hinges on the question of Israel's intentions - but genocides through history show the original intent is almost irrelevant. 

January 13 2024, 14.35pm

You don't need intent for mass atrocities. You just need a war

The hearings at the International Court of Justice considering South Africa’s charge of genocide against Israel are symbolic for many reasons - not least for the sheer gravity of the country that triumphed over Apartheid levelling this accusation against the country set up by and for survivors of the Holocaust. But there is another, more practical and immediate aspect that makes this proceeding practically unique. In contrast to many famous trials of alleged perpetrators and litigations against states, the petitioners in this case are not seeking to ensure accountability for acts of genocide already committed, or to set a historical record straight. Their primary aim is to forestall a genocide they believe is taking place already - and not by a military intervention by a third party, but via an injunction issued by a court of law. For this reason, South Africa is placing considerable emphasis not only on what Israeli forces are doing in Gaza, but on what Israelis are saying - both on the ground in the devastated enclave, and in the comfort of TV studios and parliamentary podiums back home.

Israel’s defence has been three-pronged. Some of it has been procedural, arguing on the finer points of international law. Some of it was rhetorical in itself, urging the court to note that the indiscriminate brutality of Hamas’s attacks on Israeli communities on October 7th was in itself genocidal (a point not without merit in itself, but one of limited legal relevance to the proceeding: even self-defence against genocide does not justify genocidal violence in return.) And another line dealt with the attribution of intent, arguing that for all the vicious grandstanding of Israeli politicians and boasts by Israeli soldiers, their words do not amount to admission of intent to commit genocide. 

The question of intent has long done a lot of heavy lifting in this conflict - from framing the massive civilian casualties inflicted by many Israeli operations over the years as regrettable collateral damage (in contrast to the Palestinian paramilitaries practice of deliberately targeting civilians), to the question of whether the occupation of the West Bank and Gaza was intentional or merely the result of fortunes of war. But if there was ever a setting in which intent was a secondary factor it is the risk of genocide during war time. In a sense, both Israel and South Africa have the wrong end of the stick. 

Many genocides are not, in fact, pre-planned in meticulous detail from start to finish - even if at some point a terrifyingly detached logistical operation does end up facilitating the butchery, and what began as an attempt to constrain or move a minority refocuses on its elimination. Genocides often occur in a spiral of escalation when these more limited (if still brutal) projects fail, or encounter more fierce resistance than anticipated; in particular, as historian Michael Mann notes in “The Dark Side of Democracy”, in situations where demos is conflated with ethnos, and where minorities under a state’s control are perceived to be potential agents and abetters of external enemies. Israel-Palestine is laced through with mechanisms for just such an escalation, and the longer the war goes on, the higher the risk for genocidal violence in Gaza and beyond - regardless of whether anyone in power is planning for the total elimination of the other community or not. 

Generally speaking, courts are meant to decide on the merits of cases and on interpretation of the law, not on political considerations. But international law and litigation between polities are political by definition. Both Israel and Hamas currently appear to think their vision of victory (eliminating Hamas and surviving the Israeli onslaught in any fighting shape at all, respectively) is within reach; a mediated ceasefire does not appear to be on the horizon. Less than half of international courts' rulings are actually abided by; but a historic injunction from the ICJ could provide the pretext for a hitherto reluctant international community to yank the emergency brake handle. With all due respect to historical narratives and case law, an injunction might be worth it for that result alone.