In January, the court found that South Africa had made a “plausible” claim that Israel was committing genocide in its war against Hamas in Gaza. The standard for finding plausibility is surprisingly low. On the other hand, it is difficult to understand the perversion of this explosive accusation against Israel.
The party with clear genocidal intent here is Hamas, and since Hamas is not a state, it conveniently does not fall under the jurisdiction of the ICJ. Take Hamas’ founding charter, which outlines “our struggle against the Jewish people.” Yes, after the genocidal attack on October 7, a senior Hamas official declared that the terrorist organization intended to repeat this murderous act and announced that “Israel has no place on our land.”
As for Israel, yes, there are painful and difficult questions about civilian casualties and the suffering it has inflicted in Gaza. The casualties are the result not only of Hamas’ attacks, but also of the cruel and cynical decisions of the organization seeking to profit from embedding its operations. It has deeply penetrated the civilian population and uses civilian casualties in subsequent wars to support the population.
However, the issue of complicity in Israel’s suffering is a completely different issue of international humanitarian law than groundless allegations of genocide. “Israel and its officials and/or agents acted with the intent to destroy the Palestinian population in Gaza,” South Africa claimed.
No, Israel’s intention, its legitimate intention under international law, is to defend itself and destroy Hamas. The Genocide Convention requires proof of intent to “destroy, in whole or in part, a national, ethnic, racial or religious group.” States with genocidal intentions do not warn the civilians they are allegedly destroying to leave the areas they plan to bomb. Incubators and powdered milk have not been delivered to hospitals.
None of this stopped the International Court of Justice from moving forward. In response to a separate complaint from South Africa, Israel said it needed to do more to ensure humanitarian aid to civilians, and, surprisingly, seven judges on the 15-member court ordered Israel to fight the war. He said he would order it to stop.
Let’s be clear: Israel made a terrible mistake on the issue of humanitarian relief, but it is as much a moral and strategic imperative as it is a legal issue, and one that will be dealt with many times in the future on larger issues of international law. I hope to say more in the coming weeks. . But I have to make a very legalistic point here: the ICJ has jurisdiction to decide only genocide issues. Israel does not have the authority to determine whether the broad requirements of international humanitarian law have been violated.
Added to that is the structural imbalance caused by the ICJ’s lack of authority over Hamas. Justice Aharon Barak, Israel’s representative at the ICJ, wrote that “the court accepted South Africa’s invitation to become a micromanager of the armed conflict,” but this meant that only one party, Israel, was bound by the decision. This is a “dangerous endeavor” in the midst of the current situation.
What’s happening here is not legal. It is a legal effort to hijack what should be the solemn machinery of international justice for the political purpose of smearing Israel with the smear of genocide. South Africa, which has close ties to Hamas and its sponsor Iran, has deployed a genocide treaty to smear Israel in public view.
Years from now, even if the genocide claims are finally resolved, it is unlikely that Israel will be found to have committed this most horrific of crimes. But that’s not the goal. The goal is here and now to turn public opinion further against the Jewish state.
ICJ makes that possible. As Mr. Barak stated, the ICJ’s “approach to this case is steadily moving away from the realm of law and into the realm of politics. When judges act as judges, their ideas as human beings… should not determine human opinion.” The court’s new president, Chief Justice Nawaf Salam, is a former ambassador to the United Nations from Lebanon who could see a new front break out at any time. In 2015, he wrote, “48 years of professional life, happy birthday.” That’s not fair at all.
And this is not the only example of law working in the Israel-Gaza war. Next week, the ICJ is scheduled to hear an even more fanciful claim brought by Nicaragua against Germany, forcing Germany to stop providing military aid to Israel and a UN relief operation in which some of its staff are accused of participating. It seeks to force funding to the agency to be reinstated. In the attack on October 7th. Nicaragua has accused Germany of “facilitating the commission of genocide.”
This comes from a government that was found by a UN-appointed panel of human rights experts to have committed “gross and systematic human rights violations amounting to crimes against humanity” the day before the ICJ filing. , it’s a bit luxurious. against one’s own people.
There is understandable anger against Israel over its treatment of Palestinians, its construction of settlements in the disputed territory it occupied in 1967, and the extent of its current suffering in Gaza. But see Nicaragua. Somehow Israel always seems to be held to a different and higher standard than other countries. The ICJ judgment is the latest manifestation of this familiar double standard by an institution from which we should expect better.
