I think it's important to situate the Genocide Convention and South Africa's case within socio-legal context in which they operate. I think it will help explain the dissonance between people's excitement at South Africa's arguments and my more cautious view🧵
For starters, we talk about how difficult it is to prove "intent". This is not "natural". It is the result of political processes that made genocide difficult to prove. I've said before: genocide is common; findings of genocide are not. That's not "good"
Genocide is how the world order was (is) created. Most national foundational myths involve genocide. US's "Wild West", Argentina's "Conquest of the Dessert", European "mission civilisatrice" - all genocide. (And all would be hard to prove under the Genocide Convention)
This is bc when the term "genocide" was created states were careful to make sure it would cover the Holocaust (and now Rwanda), but not Jim Crow, and not colonialism in Africa, etc. Only the most obvious genocides could be genocide, not my national mythos!
So this brings us to South Africa's case. It needs to prove that genocide is the "only reasonable inference" from Israel's actions. This is difficult no matter what, because, like South Africa said in its presentation, most genocides are not pre-announced and advertised
This is why Israel made sure today to argue that 1) its genocidal statements were misconstrued and 2) it is taking measures to safeguard civilian wellbeing. It specifically asked "would a genocidal state would go to these lenghts if what it wanted was to destroy the group?"
So, South Africa's job is more difficult than just saying "look, just *look* at what's happening". It needs to convince the Court to deduce this intent from the overall context of the operation. That even these humanitarian measures are part of the genocide
In essence that if you know that 2 million people are starving and you knowingly give them insufficient food/water, while your soldiers kill them on sight and bomb them in "safe places", then you should conclude that your intent is to destroy them despite these measures
But is that the "only reasonable inference"? Israel will argue it is not. At some point, if it gets desperate, it may even concede that the other reasonable inference is an intent to comit war crimes, but not genocide - that is enough: there is no jurisdiction for war crimes...
This is why South Africa has also claimed Israel is not trying to prevent its soldiers from comitting genocide or punishing its officials who incite genocide. Because Israel winning the main claim sort of means Israel will lose the other two
Of course, there is a scenario where South Africa prevails. But it is not a scenario a colonial and Eurocentric international law was created for. South Africa's case is sort of subversive of the sysem in this way
To be clear: this is not bc ICJ Judges are just realpolitik agents of their states. They are serious competent jurists. But they do operate within the socio-legal context of an int'l law that conceives genocide a "once in a lifetime" crime that ought to be very difficult to prove
Int'l law is not an "even playing field", not because there is any kind of conspiracy, but because it was born out of colonialist principles, not to enable liberation. South Africa is challenging this, and they may succeed, but they don't have it "in the bag"
So I guess, don't be pessimistic, but be cautiously hopeful rather than confident
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The problem with Elliot’s analysis is that frankly it is trapped by two methodological choices: narrow interpretation and excessive formalism. Why he makes these choices is for him to reveal, but I do think it is important for people to know they are choices 🧵
It is a fundamental principle of law that laws that protect rights should be read expansively and laws that restrict rights should be read narrowly. Rules regarding the protection of people from genocide therefore should be read expansively.
Elliot thus incorporates new elements to the definition of genocide (like the only reasonable inference test) because the ICJ mentions them, but he does so to close the door on the protection from genocide by making the narrowest possible reading.
I’m pretty sure I’m one of the people who knows most in the world about a relatively obscure Brazilian diplomat and nobleman called Felippe Lopes Netto. I came across him researching for my PhD and I’ve been obsessed with his life ever since. 🇧🇷 😍
I was looking for non-Euro-American actors implementing the laws of war in the 19th Century. One of the key arguments I make in my dissertation is that 19th Century laws of war were really, literally, *laws* in plural, with different parts of the world adopting different readings
I argued that the Euro-American Clausewitz-inspired interpretation that puts military necessity at the heart of the discipline was just that: one interpretation among a larger global ecosystem. In fact, I argued, it was one that was not as popular as people tell us today
I’ll play
Here’s what Elliot is neglecting: we are not establishing the genocidal intent *of the war cabinet* but *of the Israeli state*. This is part of an ecosystem of genocidal beliefs in Israeli society, from Netanyahu to the IDF grunt singing may your village burn in Gaza 🧵
If this was “just” Israeli leadership making genocidal statements, what we’d have is a “risk” of genocide, demonstrated by the leadership’s “incitement”. But the idea that this neat division can exist in practice is absurd given what we know irl.
First, like I said, these are not isolated statements. When a cabinet member says something, it’s then repeated by a military officer and then eventually by a soldier and then, importantly, *carried out* on the ground.
First: No genocide looks like the Holocaust. Just like no genocide looks like the Rwandan genocide or the Herero genocide. There are common aspects and patterns. But genocide does not come with a franchising manual.
Russia’s kidnapping and transferring of Ukrainian children to Russian families is also genocidal under int’l law. It looks *nothing* like The Holocaust. What it has in common is the intent to destroy another group. Russia does not believe Ukrainians exist as a people
We’ve gone from “Hamas hides under hospitals” to “Hamas made us to build insufficient food hubs in the south far from people in the north and put kill zones in between then Hamas made us to shoot at those who survived the trip and torture those our AI said had a cousin in Hamas..
“Then Hamas forced us to displace those who remained so that we can put everyone in a ghetto while we try to deport them away from Gaza so that we can take control of and colonise this land. Don’t you see? It’s all Hamas’ fault!”
Like seriously who could possibly take this ridiculous take seriously anymore other than the most inhumane and racist twitter ideologues at this point?