The South African government has clearly picked a side in the Israel-Hamas conflict. Its incredibly shameful accusations against Israel at the International Court of Justice (ICJ) reveal its overt bias in the conflict.
South Africa has welcomed the International Criminal Court (ICC) arrest warrants levelled against Israel’s Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, as well as Hamas leaders Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri and Ismail Haniyeh.
But is South Africa’s government right to draw a moral equivalence between Israel and Hamas, when it was Hamas that instigated this conflict through its brutal attack on 7 October?
Evaluating the Charges Against Hamas
Hamas instigated the conflict on 7 October, and has been charged with various war crimes performed by its personnel and sanctioned by its leadership on that day and since. While anti-Israel pundits may try to justify these crimes through bringing up Israel’s so-called occupation and “Zionist colonialism”, these crimes are never justified and never proportionate.
“Extermination as a crime against humanity, contrary to article 7(1)(b) of the Rome Statute:”
Hamas clearly sought to exterminate Israelis on 7 October. This is consistent with their rhetoric. Sinwar stated on Hamas’s Al-Aqsa television station that Israel “will never get anything but guns, fire, martyrdom, death, and killing” from Gaza.
The Hamas charter calls for the killing of Jews to usher in a Day of Judgement: the words of an apocalyptic death cult.
Even the deliberate targeting of Jewish and Israeli civilians on 7 October alone is enough to consider this charge of war crimes valid.
“Murder as a crime against humanity, contrary to article 7(1)(a), and as a war crime, contrary to article 8(2)(c)(i):”
Like the first charge, Hamas clearly murdered civilians as a part of a systematic campaign. Civilians are not valid targets, no matter one’s religious or ideological self-delusions.
“Taking hostages as a war crime, contrary to article 8(2)(c)(iii):”
Hamas’s kidnapping, imprisonment and torture of hostages is well-documented. As of writing, 125 hostages still remain within Gaza. Many are presumed dead. What Hamas probably thought they could use as a bargaining chip has since become a rallying cry for Israel.
“Rape and other acts of sexual violence as crimes against humanity, contrary to article 7(1)(g), and also as war crimes pursuant to article 8(2)(e)(vi) in the context of captivity:”
Despite widespread denial by propagandists and Hamas itself, the forensic evidence, footage published by Hamas itself, and overwhelming witness testimony make it clear that Hamas performed countless acts of sexual violence on October 7th on the hostages it kidnapped. Documentaries like Screams Before Silence showcase some of the atrocities that Hamas committed, as a part of its key strategy to strip the dignity and lives away from Israeli women.
“Torture as a crime against humanity, contrary to article 7(1)(f), and also as a war crime, contrary to article 8(2)(c)(i), in the context of captivity:”
Hamas’s footage itself, and evidence left at the scenes of its violence, are clearly indicative of torture. Torture also continued past October 7th, with surviving hostages reporting being sexually assaulted and tortured while in captivity.
The remaining charges:
The remaining charges indicate that inhumane acts, cruel treatment and outrages upon personal dignity were all clearly performed by Hamas fighters. Footage published by Hamas itself shows fighters stomping on Israelis’ heads while chanting religious slogans. 22-year-old Shani Louk was paraded naked and beaten through the streets of Gaza. Corpses were mutilated and hostages tortured.
Hamas and its leadership are very clearly guilty of all the above charges. But what about Israel’s Netanyahu and Gallant?
Evaluating the Charges against Israel’s Leadership
“Starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of the Statute:”
If Gazans are starving, this doesn’t mean it is a deliberate strategy by the Israeli Defence Force (IDF) or the Israeli government. War is chaotic, and it is difficult to ensure that food aid reaches the needy, rather than bandits or Hamas fighters.
The IDF has actively distributed food to Gazans, while overseeing the guarding of aid trucks. The fact that Israel has allowed and actively supported the distribution of food aid is evidence enough that the starvation of Gazans is not deliberate. It is just an unfortunate byproduct of a war started by Hamas.
Intentional targeting, killing and causing of suffering to civilians (various charges)
Civilians have died and suffered as a result of this war, but wilfulness is the crucial factor here. The IDF has gone out of its way to minimise civilian casualties far more than most other modern armies, which receive very little backlash from the international community.
Intent to harm and kill civilians needs to be proven here. This is something the court must take very seriously if Gallant and Netanyahu are arrested. As the IDF has taken action to avoid civilian casualties, and Hamas has ensured the maximisation of human suffering due to its intentional embedding of itself into civilian infrastructure, the blame should be levelled at Hamas, not Israel’s leaders.
“Persecution as a crime against humanity contrary to article 7(1)(h):”
Israel is not persecuting Gazans. They are persecuting Hamas: a terror group that waged a war of extermination against them. The Rome statute does not protect terrorist organisations, so this is an invalid charge.
Conclusion
The accusations against Israel’s leadership all rely on intent and deliberate action. The IDF and the Israeli government have not shown a clear intent to harm or kill Gazan civilians. They have acted in proportion to Israel’s military objective to destroy Hamas and save Israeli hostages.
On the other hand, Hamas has engaged in vicious and disgusting crimes against humanity. Mountains of footage, forensic evidence and the words of Hamas itself back up the assertion that it committed these crimes.
South Africa’s government is wrong to commend the ICC charge in its totality. Israel’s leadership should not be issued an arrest warrant in the same breath as a terror group that oversaw the single most-destructive day against the Jewish people since the Holocaust.
Hopefully, the ICC will drop its foolish charges against Netanyahu and Gallant soon, and focus its efforts on capturing and prosecuting Hamas’s vicious leadership.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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