Irish Intervention in South Africa v. Israel Genocide Case

By Aidan O’Sullivan

Why has the Irish case proved to be so destructive for Irish-Israeli relations and how does it differ from other state interventions?

If you took a stroll through the virtual Israeli news stand over the last few months and looked for any mention of Ireland, you would be greeted with the veritable burning effigy that is current Irish-Israeli relations.

In the Jerusalem Post, David Ben-Basat claimed Ireland held ‘long standing anti-semitic and anti-israeli policies.’ In The Times Of Israel, blogger Louis Hemmings compared the recent incident at the Holocaust memorial in Dublin where a Jewish UCD tutor was removed from the event as akin to the Judenfrei policies of Nazi Germany. The Irish and Israeli writer Paul James Kearns in an opinion piece for Haaretz spoke of how reactions to his Irish nationality have gone from pleasant intrigue to questions asking why the Irish ‘hate’ the Israelis.

With the recent Irish intervention in January, Ireland has become the only European state besides Spain to join the South Africa v. Israel genocide case on Israeli actions in the Gaza Strip, currently underway in the International Court of Justice (ICJ). In response, the Israeli state removed its embassy in Dublin, a striking diplomatic move, often reserved only as a method of last resort. No other state has seen this level of reproach after joining the South Africa legal proceedings.

In comparison to other conflicts such as the Russian war in Ukraine, Western states have continued to host Russian embassies and indeed operate their own in Moscow despite the heightened tensions.

While it has been argued that Ireland has been singled out due to its small global presence making it an easy target for Israeli ire, it is also true that the Irish intervention is unique in the legal argument it takes, calling for an expansion to how the ICJ constructs the definition of genocide.

Interventions are enshrined in Article 63 of the ICJ statute. They allow states to submit arguments on how a multilateral treaty is defined. Considering how the ICJ constructs its understanding will be applicable to all committed states it is an important legal process. Technically, by submitting an intervention a state submits its own legal interpretation of how the convention should be understood rather than join a side in the case. However, most states that have submitted interventions have for the most part simply reiterated the argument put forward by South Africa. The Irish intervention is both more pointed and potentially more consequential both for the Israeli case and how genocide is generally determined by the ICJ going forward.

A guilty verdict relies on both the material element (actus reus) and the mental element (mens rea) to be considered genocide. The material element is those acts that are contravened under the 1948 convention while the mental element is the intent to destroy a national, ethnic or religious group in whole or in part. While these unlawful acts may be present in many a conflict, the establishment of genocide requires a ‘specific intent’ that these prohibited acts were carried out as part of a wider destructive campaign aimed at a group in part or in whole.

The Irish intervention looks to expand the definition of genocide to include indirect and circumstantial evidence. Of the observations submitted the two most significant are:

1. According to the intervention, genocidal intent may exist simultaneously with other motives such as the defeat of an enemy.
2. Further, a perpetrator does not have to hold genocide as their purpose in order for genocidal intent to be proven. If they enact a policy in which they would reasonably know that the outcome will result in genocide or genocidal acts, then they can potentially be held liable for genocidal intent.

The Irish intervention also places a particular emphasis on the value placed on children’s lives in establishing a verdict. It argues that children are key to the continued existence of any human group and that acts affecting them deserve extra consideration. It references recent studies that have concluded that children are seven times more likely to be killed by explosive weapons and that hunger and malnutrition affect them more severely than any adult. If there is evidence that children of a group were either specifically targeted or no distinction was made between children and adult members, then potentially acts can be constituted as genocide.

Seemingly, The Irish intervention takes direct aim at Israeli policies which critics of the regime have claimed unduly restrict humanitarian aid and access to vital resources within Gaza. Further, it mirrors concerns that IDF tactics have resulted in blanket bombing procedures which have led to the destruction of civilian centres and essential infrastructure such as hospitals.

The Israeli state has remained consistent in its stance that it did its utmost to limit civilian casualties, and those that have occurred are as a result of Hamas tactics which rely on using civilians as human shields. The Israeli state also disputes the validity of the death count in Gaza which now numbers above 40,000.

The intervention itself continues to be disputed by Israeli authorities who have described it as anti-israeli in character. In the coming months both South Africa and Israel will have the opportunity to submit a legal response to Ireland’s intervention.

As the legal proceedings deepen Ireland will be faced with the task of maintaining cordial relations between itself and Israel, an increasingly unlikely prospect as ties between the two states deteriorate further and further.

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