In January, the court found that South Africa had made a “plausible” claim that Israel was committing genocide in waging the war against Hamas in Gaza. The standard for finding plausibility is astonishingly low; meanwhile, the perversity of deploying this explosive accusation against Israel is hard to grasp.
The party with clear genocidal intent here is Hamas, which, because it’s not a state, is conveniently not subject to the jurisdiction of the ICJ. Just take a look at the Hamas founding charter, which outlines “our struggle against the Jews.” After the, yes, genocidal Oct. 7 attack, a senior Hamas official declared the terrorist group’s intention to repeat the murderous feat and announced that “Israel is a country that has no place on our land.”
As to Israel, yes, there are painful and difficult questions about the civilian casualties and suffering it has inflicted in Gaza — casualties that are the result of not only the Hamas attack but also the organization’s cruel and cynical decision to reap benefit from embedding its operations deep in the civilian population and using the ensuing civilian casualties in its war for public support.
But the matter of Israel’s complicity in the suffering is an issue of international humanitarian law entirely separate from the unfounded allegations of genocide. “Israel, its officials and/or agents, have acted with the intent to destroy Palestinians in Gaza,” South Africa claimed.
No. Israel’s intent — its legitimate intent, 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, ethnical, racial or religious group.” A country with genocidal intent does not warn the civilian population it is supposedly seeking to destroy to leave an area it plans to bomb. It does not deliver incubators and baby formula to their hospitals.
None of this stopped the International Court of Justice. Responding to another prod from South Africa, it said Israel had to do more to ensure humanitarian aid to civilians — and, alarmingly, seven judges on the 15-member court said they would order Israel to stop the fighting.
To be clear: Israel has erred, badly, on the issue of humanitarian relief, which is a moral and strategic imperative as well as a legal one. The tragic killing of seven aid workers for World Central Kitchen only adds to the understandable pressure on Israel to ease the humanitarian crisis — and to its potential legal exposure on that score. But, and here I need to make a maddeningly legalistic point, the ICJ has jurisdiction to decide only the genocide question. It doesn’t have the authority to determine whether Israel has violated the broader requirements of international humanitarian law.
Add to that the structural imbalance because of the ICJ having no power over Hamas. As Judge Aharon Barak, Israel’s representative on the ICJ, wrote, “The Court has accepted South Africa’s invitation to become the micromanager of an armed conflict,” a “dangerous endeavor” when only one party, Israel, is bound by its decisions.
What’s going on here isn’t law; it’s lawfare, an effort to hijack what should be the somber mechanisms of international justice to the political ends of tarring Israel with the calumny of genocide. South Africa, with close ties to Hamas and its sponsor, Iran, is deploying the Genocide Convention to dirty Israel in the public eye.
Years from now, when the genocide claim is ultimately resolved, it’s not likely Israel will be found to have committed this most terrible of crimes. But that’s not the goal. The goal is in the here and now, to turn public opinion even further against the Jewish state.
The ICJ is enabling it. As Barak put it, the ICJ’s “approach to this case is steadily leaving the land of law and entering the land of politics. The ideas of a judge as a human being should not determine the opinions of a human being when he or she acts as a judge.” The court’s new president, or chief justice, Nawaf Salam, is a former ambassador to the United Nations from Lebanon, where another front could erupt into war at any moment. In 2015, he wrote, “Unhappy birthday to you, 48 years of occupation.” Doesn’t exactly sound impartial.
And this is not the only example of lawfare at work in the Israel-Gaza war. Next week, the ICJ will hear an even more fantastical claim filed by Nicaragua against Germany, seeking to force Germany to stop providing military aid to Israel and to resume funding of the U.N. Relief and Works Agency, some of whose employees have been accused of participating in the Oct. 7 attack. Nicaragua accuses Germany of “facilitating the commission of genocide.”
This is more than a bit rich coming from a government that, the day before its ICJ filing, was found by a panel of U.N.-appointed human rights experts to have engaged in “serious, systematic human rights violations, tantamount to crimes against humanity” against its own citizens.
There is understandable anger against Israel over its treatment of Palestinians, over its building of settlements in the disputed territory seized in 1967 and, now, over the scope of the suffering in Gaza. But — see Nicaragua — somehow Israel seems always to be held to a different, higher standard than other countries. The ICJ’s ruling is the latest manifestation of this familiar double standard, from an entity from which we should be able to expect better.
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