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Washington, D.C. – Today, House Foreign Affairs Committee Chairman Michael McCaul sent a letter to President Biden and Secretary of State Antony Blinken calling on the Biden administration to formally intervene in South Africa’s case against Israel at the International Court of Justice alleging violations of the Genocide Convention. In the letter, Chairman McCaul notes that the United States must protect the Convention from South Africa’s efforts to debase its significance, render hollow the meaning of genocide, and permit its use as a political tool by malign actors.

“As a party to the Genocide Convention; an ally of Israel; and a leader in preventing, responding to, and ensuring accountability for mass atrocities; the United States must not remain idle in these proceedings, which implicate core national interests,” wrote Chairman McCaul. “I thus specifically urge that the administration intervene in the case without delay, as is its right under the ICJ Statute.”

 

The full text of the letter can be found here or below.

 

Dear President Biden and Secretary Blinken,

On December 29, 2023, the Republic of South Africa submitted an Application to the International Court of Justice (“ICJ” or “Court”) alleging that Israel has violated its obligations under the Genocide Convention. South Africa has requested the Court to declare that Israel’s actions following Hamas’ October 7, 2023 assault on Israel “breach[ed] its obligations under the Genocide Convention, in particular the obligations provided under Article I,” as Israel purportedly has “engaged in and failed to prevent or to punish acts and measures which are genocidal.”

As your administration has observed, South Africa’s claims are “meritless, counterproductive, and completely without any basis in fact whatsoever.” Moreover, that Hamas’ assault itself “was carried out by a genocidal organization and comprised nothing less than the full range of atrocity crimes under international law,” as I have noted, underscores that South Africa’s claims are absurd. These claims are a baseless abuse of international legal process and threaten to undermine the Genocide Convention.

In January, I joined 210 members of Congress in a bipartisan letter urging the administration to “offer Israel all appropriate support in opposing the South African application to the ICJ.” Yet – over a month later – requisite support has not been provided, and the case nevertheless is proceeding rapidly. Indeed, the Court has since indicated provisional measures against Israel, South Africa has requested further provisional measures, Israel has made observations on this additional request, the Court has ruled on this additional request, and Israel has filed a report with the Court detailing its compliance with the provisional measures. In addition, Nicaragua has filed an application for permission to intervene in the proceedings, in which it refers to Hamas as a “paramilitary” organization and asserts that “the actions of Israel have crossed the threshold of . . . permissible measures of self-defense.”

As a party to the Genocide Convention; an ally of Israel; and a leader in preventing, responding to, and ensuring accountability for mass atrocities; the United States must not remain idle in these proceedings, which implicate core national interests. I thus specifically urge that the administration intervene in the case without delay, as is its right under the ICJ Statute.

In this regard, upon signing the Genocide Convention Implementation Act, Ronald Reagan observed that “[d]uring the Second World War, mankind witnessed the most heinous of crimes: the Holocaust. And after the war, the nations of the world came together and drafted the genocide convention as a howl of anguish and an effort to prevent and punish future acts of genocide. . . . I’m delighted to fulfill the promise made [ ] to all the peoples of the world, and especially the Jewish people.” Decades on, this promise includes – as it must – a solemn duty for the United States to protect the Convention from South Africa’s efforts to debase its significance, render hollow the meaning of genocide, and permit its use as a political tool by malign actors.

Pursuant to Article 63 of the ICJ Statute, Member States have “the right to intervene in [] proceedings [before the Court]” “[w]henever the construction of a convention to which [those] states [ ] are parties is in question.” A declaration to this effect must be filed “as soon as possible.” In 2022, the United States filed a Declaration of Intervention in Ukraine v. Russian Federation (another case brought before the ICJ under the Genocide Convention), in which the United States set forth observations regarding its interpretation of the Convention. These observations concerned key elements of the crime of genocide, including “the scope of the subject matter the Genocide Convention is intended to address,” and sought to protect the United States’ rights and interests in the proceedings.

The United States must similarly intervene in South Africa’s case against Israel. In particular, the United States should demonstrate clearly and with precision – before the Court and, in consequence, the international community – that Israel’s actions in defending itself against Hamas plainly are not genocide. In this regard, South Africa’s submission fails to provide any substantive evidence to support its claims and rather presents a “deliberately curated, decontextualized and manipulative description of the reality of current hostilities.” This includes relying repeatedly in its pleading on statements by the United Nations Relief and Works Agency (UNRWA), whose employees are known to have participated in the October 7, 2023 assault on Israel, as the House Foreign Affairs Committee recently has examined.

That Israel follows extensive procedures to prevent harm to civilians, continues to facilitate humanitarian assistance into Gaza, and remains committed to upholding international humanitarian law is beyond reproach. And the suggestion that Israel has carried out genocidal acts is an affront to international justice, undermines the promise of the Convention itself, and cannot go unaddressed by the United States before the Court.

The United States must actively engage in issues before the ICJ which implicate its national interests. Accordingly, I am deeply concerned that South Africa’s case against Israel remains pending without a Declaration of Intervention by the United States. I urge the administration to promptly file such a Declaration.

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