The ICJ: A reply to the SAZF

I’m Jewish, anti-Zionist, and a member of the South African Jews for a Free Palestine and the Palestine Solidarity Campaign though not their spokesperson. I approve of their dedication to vigorous and nonviolent campaigning. I support the boycott of Israel, and disinvestment from and sanctions against Israel.

On 16 March 2026 the South African Zionist Federation (SAZF) issued a statement expressing its approval for the Intervention by the United States of America in the International Court of Justice (ICJ) in the proceedings brought by South Africa against Israel in terms of the Convention on the Prevention and Punishment of the Crime of Genocide (abbreviated as the Genocide Convention).

Writing on behalf of the SAZF, Rolene Marks extols the US Intervention. She writes:

‘It is also important to correct a persistent misrepresentation promoted by the ANC government. The ICJ’s preliminary ruling did not find that Israel was committing genocide. The Court merely determined that Palestinians have a plausible right to be protected under the Genocide Convention, a legal threshold required for the case to proceed. This distinction has repeatedly been ignored and deliberately distorted by government officials to create the false impression that the Court endorsed South Africa’s accusation’.

It would be surprising indeed if anyone ever claimed on behalf of South Africa that the ICJ had concluded that ‘Israel was committing genocide’, and that the court ‘endorsed South Africa’s accusation’. As Rolene Marks says, this certainly misrepresents what the ICJ has decided so far. I cannot prove that no South African government authority made such statements — how does one prove a negative? — but as Rolene Marks claims that there is such a ‘persistent misrepresentation’ she should have no difficulty in proving it. I challenge her to do so.

In fact, she herself is guilty of an egregious distortion — suppression might be more accurate — of the Provisional Order of the ICJ. Her use of the word ‘merely’ is an attempt to weasel her way out of acknowledging that the ICJ said more than she admits.

It is true that after reviewing the evidence before it, in Paragraph 54 of its Order the ICJ stated that it was sufficient —

‘to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention’.

Rolene Marks summarises this, but the judges went further. In paragraph 66 they said that the rights found to be plausible ‘are of such a nature that prejudice to them is capable of causing irreparable harm’.

And then in paragraph 74 the Court stated explicitly that it —

‘Considers that there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, before it gives its final decision’.

In the contexts used here, the word ‘plausible’ means no more than the phrase ‘prima facie’ which is familiar in South African criminal courts: on the face of it, the incriminating evidence appears to be credible, so does the person incriminated have a reply to it?

Rolene Marks attempts to hide even more behind the word ‘merely’. Without deciding finally whether Israel was indeed committing genocide, the ICJ ordered Israel to comply with measures which addressed the risk found to be plausible. In para. 79, it ordered Israel to take all measures within its power —

‘to prevent the commission of all acts within the scope of Article II of [the Genocide Convention], in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group’.

The Court further ordered Israel ‘to ensure with immediate effect that its military forces do not commit any of the above-described acts’; to prevent and to punish incitement, and to —

‘take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip’.

If the ICJ felt that it was necessary to order such measures, what are conditions like in Gaza?

These are some of the matters which the SAZF hid behind Rolene Marks’s ‘merely’.

To determine whether Israel is committing genocide, the ICJ will have to decide whether the acts referred to above to have been ‘committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such’. The Interventions by America and other countries focus on the meaning of ‘intent’. No attempt will be made here to explain the problems of interpreting this word where it is used in the Genocide Convention. It is possible that this will be the point on which South Africa’s case hinges.

However, one result of the ICJ’s provisional conclusions is that it is plausible that, in Gaza, Israel is intentionally targeting individuals who are protected by the Geneva Conventions. Here, the required intention need not be ‘to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. One has but to read the evidence relied on in the Provisional Order of the ICJ to see the relevance of the Geneva Conventions.

This is explored by Francesca Albanese in her capacity as Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967. Her Report, “Anatomy of a Genocide”, relies heavily on official Israeli state publications. One is a paper published by the Ministry of Foreign Affairs entitled ‘Hamas-Israel Conflict 2023: Key Legal Aspects’.

Quoting the Geneva Conventions and Protocols, Albanese writes:

‘International law stipulates that attacks must be “strictly limited” to objects, which, “by their nature, location, purpose or use make an effective contribution to military action”, whose “total or partial destruction, capture or neutralization” in the circumstances ruling at the time “must offer a definite military advantage”’.

In her study of the legal views of the Ministry of Foreign Affairs, Albanese shows how Israel has misused this rule to “militarize” civilian objects and whatever surrounds them, thus justifying their indiscriminate destruction. According to the Ministry of Foreign Affairs,

‘Hamas pursues an unlawful strategy of systematically embedding its military activity and assets in populated areas (including residential and commercial buildings, places of worship and hospitals), many ostensibly civilian objects may become legitimate targets’.

This is the basis of the ‘human shield’ claim. The Ministry of Foreign Affairs advises: ‘As a result, it cannot be concluded from the mere fact that seeming “civilians” or “civilian objects” have been targeted, that an attack was unlawful’. Albanese replies:

‘The civilian population and the infrastructure of Gaza are presented as obstructions positioned among, in front of and above targets. Instead of abiding by circumstantial status determinations in line with international humanitarian law for each attack undertaken, as is required, Israel has characterized the whole territory as a military objective’.

Albanese observes that ‘Israel considers any object that has allegedly been or might be used militarily as a legitimate target, so that entire neighbourhoods can be razed or demolished under fictions of legality’. She provides practical illustrations of what this has meant in Gaza:

‘Paradigmatic examples are referred to as “power targets” encompassing all civilian objects, including residential buildings, under the pretext that “Hamas is everywhere in Gaza”. Entire multistorey buildings have been levelled while full of civilians, knowingly killing hundreds in single strikes. In the attack on the Al-Taj tower in Gaza City, bombed on 25 October [2023], 101 people were killed, including 44 children and 37 women, and hundreds were injured’.

Relying on the Israeli material itself, Albanese describes how the whole of Gaza has been turned into a ‘military objective’. Where death and destruction have been unintended, it is described ‘collateral damage’ — a regrettable by-product of war, and the result of Hamas’s choice.

The press now reports openly on the implications for soldiers who are told that they serve in ‘the most moral army in the world’ but who find themselves involved in atrocities. The result is different from post-traumatic stress disorder, which is a fear-based reaction after a traumatic incident involving risk for the one’s self or others nearby. What is occurring is defined as ‘moral injury’ and described by Prof. Yossi Levi-Belz of the University of Haifa:

‘Moral injury happens due to exposure to incidents that are perceived as a fundamental violation of basic moral values – of oneself or of others – and typically involves feelings of guilt, shame, rage, disgust, alienation, loss of faith and a breakdown in identity, meaning and a sense of humanity’.

The army refuses to disclose details. The incidence is rising and the accounts make horrible reading. Moreover, growing numbers of reservists are refusing to report for duty.

Turning to the war on Iran, the Zionist Federation displays its rejection of South Africa’s efforts to strengthen our democracy and adherence to international law. Rolene Marks writes:

‘Recent statements from DIRCO condemning Israeli and American military actions against Iran illustrate this posture clearly……Through its rhetoric and diplomatic positioning, Pretoria has repeatedly placed itself in direct opposition to the United States and other democratic allies…… At the same time, the South African government continues to align itself diplomatically with regimes openly hostile to the West’.

‘Western’ standards, apparently, include contempt for the United Nations’ Charter, which states that ‘Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered’. Chapter VII deals with ‘Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’, and none of its terms cover the American and Israeli attack on Iran.

Rolene Marks blinds herself to what the Department of International Relations and Co-Operation has said. Addressing the United Nations’ Human Rights Council on the situation in Iran, South Africa’s Representative emphasised South Africa’s commitment to multilateralism and firm adherence to the international rule of law.

South Africa’s Representative emphasised that the rights to peaceful protest, freedom of expression, and freedom of association are universal rights as enshrined in international human rights law and must be protected. The Representative added that ’’The grievances of the Iranian people need to be heard and addressed and not instrumentalised by anyone’.

The 2026 Report of Amnesty International on the ‘State of the World’s Human Rights’ draws the picture that the Zionists prefer:

‘What alternative to the imperfect global experiment initiated in 1948 is on offer? The undermining of international law, attacks against the International Criminal Court, withdrawal from international conventions, abandonment of UN agencies. Having paralysed the UN Security Council through unconscionable abuse of their veto powers, the predators now assert that peace and security mechanisms don’t work and seek to replace them with self-serving alternatives.

‘The predatory world order discards racial and gender justice, mocks women’s rights, declares civil society a common enemy and rejects international solidarity’.

Section 233 of our Constitution ties South African law to international law. The Preamble to the Constitution records that one of the purposes of the Constitution is to ‘Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations’.

The South African Zionist Federation need not trouble us with its reaction to Amnesty International. We can anticipate the protest at its alleged antisemitism.