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A. There are no indicators of a genocidal intent on the part of Israel

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What distinguishes the crime of genocide from other grave violations of international human rights law (including those enumerated in Article II, paragraphs (a) to (d), of the Genocide Convention) is the existence of the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. Accordingly, the acts complained of by South Africa, as well as the rights correlated to those acts, can only be capable of “falling within the scope of the said Convention” if a genocidal intent is present, otherwise such acts simply constitute grave violations of international humanitarian law and not genocide as such.

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21. ... Having examined the evidence put forward by each of the Parties, I am not convinced that a prima facie showing of a genocidal intent, by way of indicators, has been made out against Israel. The war was not started by Israel but rather by Hamas who attacked Israel on 7 October 2023 thereby sparking off the military operation in Israel’s defence and in a bid to rescue its hostages. I also must agree that any “genocidal intent” alleged by the Applicant is negated by (1) Israel’s restricted and targeted attacks of legitimate military targets in Gaza; (2) its mitigation of civilian harm by warning them through leaflets, radio messages and telephone calls of impending attacks; and (3) its facilitation of humanitarian assistance. A careful examination of Israel’s war policy and of the full statements of the responsible government officials further demonstrates the absence of a genocidal intent. Here I must hasten to add that Israel is expected to conduct its military operation in accordance with international humanitarian law but violations of IHL cannot be the subject of these proceedings which are purely pursuant to the Genocide Convention. Unfortunately, the scale of suffering and death experienced in Gaza is exacerbated not by genocidal intent, but rather by several factors, including the tactics of the Hamas organization itself which often entails its forces embedding amongst the civilian population and installations, rendering them vulnerable to legitimate military attack.

22. Regarding the statements of Israeli top officials and politicians that South Africa cited as containing genocidal rhetoric, a careful examination of those statements, read in their proper and full context, shows that South Africa has either placed the quotations out of context or simply misunderstood the statements of those officials. The vast majority of the statements referred to the destruction of Hamas and not the Palestinian people as such. Certain renegade statements by officials who are not charged with prosecuting Israel’s military operations were subsequently highly criticized by the Israeli Government itself. More importantly, the official war policy of the Israeli Government, as presented to the Court, contains no indicators of a genocidal intent. In my assessment, there are also no indicators of incitement to commit genocide.

23. In sum, I am not convinced that the acts complained of by the Applicant are capable of falling within the scope of the Genocide Convention, in particular because it has not been shown, even on a prima facie basis, that Israel’s conduct in Gaza is accompanied by the necessary genocidal intent....