Current Events: Israel At War Israel On Trial

Current Events, Episode 171

israel at war, EXPLAINED: israel on trial for genocide

january 15, 2024

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South Africa has brought charges of genocide against Israel at the International Court of Justice in The Hague, Netherlands. What is this case about, and what does it all mean?

In the surreal, upside-down world that is Israel on the global stage, South Africa, a deeply troubled nation that supports Hamas’ genocide against Israel, has brought Israel before the International Court of Justice on charges of genocide. The accusation is mostly based on rhetoric from a few Israeli leaders, and the case was presented without actual hard evidence that Israel is carrying out the systematic destruction of the Palestinian people in Gaza.

Not that that matters. As we all know, sometimes the accusation alone is enough, and that is the point here. To continue the global campaign to demonize and delegitimize Israel. South Africa does not care about the Palestinians or their access to humanitarian aid: not when nearly 20% of South Africa’s population does not have access to clean water, 25% of schools don’t have clean water, one-third of people go without basic sanitation, unemployment stands at around 33%, electricity is only intermittent in large parts of the country, and the government and its ruling party are corrupt and inept. 115 rapes every day, 75 murders. On December 5, South Africa held a ceremony marking ten years since the death of Nelson Mandela. At the head of the march, and given the honor of laying a wreath with Mandela’s grandson and other government officials, was a delegation of Hamas officials led by Bassem Naim, a senior Hamas leader who denies that any Israeli civilians were killed on October 7.

A week before South Africa presented its case of genocide against Israel, South Africa’s president hosted Muhammad Hamdan Dagalo, the Sudanese leader of the Janjaweed militia, which slaughtered hundreds of thousands of innocent people in Darfur. So let’s dispense with the pretense that South Africa’s government is deeply concerned with human rights. And just the other day, South Africa removed the Jewish captain of their under-19 cricket team just before the Cricket World Cup. They cited the likelihood of protests against Israel specifically calling him out. But as they are still keeping him on the team and allowed to play, it sure looks like punishment for his public support for Israel.

So on the one hand, we have a brazen hypocrisy that is enormously disheartening. Not on the docket, of course, is Hamas, which not only makes explicit its goal of genocide, but on October 7 carried it out. This trial is a farce, it’s just posturing. I almost don’t even want to address it, because doing so suggests it should be taken seriously. Yet it is serious: the charge of genocide is no small thing, even if the term is getting diluted to the point of meaninglessness. And Israel is vulnerable to some of the charges, though let’s be clear that it is not committing genocide. But beyond the demonization of Israel, does the International Court of Justice — the ICJ — have any real power here? What is this case specifically about? What does a verdict either way mean for Israel? Let’s get into it. I’m your host, Jason Harris, and this is Jew Oughta Know.

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So what is the International Court of Justice? The ICJ was established in 1945 as part of the United Nations. It’s located in The Hague, Netherlands. Its purpose is to adjudicate disputes between nations over international law, and to offer advisory opinions about global legal issues. Any country can bring a case against another country, which is why South Africa can haul Israel before the court, even though South Africa has no involvement in the current war — other than, of course, as a supporter of Hamas. But the ICJ only deals with states, which is why Israel can’t bring Hamas before the court. Even if Gaza was a recognized state, Hamas has not, of course, signed up to the ICJ’s jurisdiction. Lisandro Novo is a lawyer at the Atlantic Council who used to work at the ICJ. She explains that the ICJ isn’t a criminal court. “The ICJ rules on questions of state responsibility — that is, on when a state has violated a rule of international law or an international legal obligation.” There is a system for prosecuting individuals for things like crimes against humanity — the International Criminal Court, but that’s a separate body.

So the ICJ isn’t a criminal court, and the charges that South Africa has brought against Israel aren’t about criminal responsibility for committing genocide. The accusation is that the State of Israel has not upheld its obligations to abide by the provisions of the Genocide Convention, which we'll get to in a minute. What South Africa is asking is that the ICJ issue a provisional ruling ordering Israel to suspend its military operations. That is, for Israel to stop doing what South Africa says is violating the Genocide Convention. According to Lisandro Novo, all South Africa needs to show here is “to convince the court that its allegations are plausible.” So if South Africa can convince the ICJ that its accusations of genocide have merit, then the ICJ can issue a provisional ruling demanding that Israel stop its operations. Then later there will be a fuller trial to determine Israel’s guilt in committing genocide against the Palestinians, an effort that will likely slog on for years before a definitive ruling.

South Africa’s accusation is that Israel is in violation of the Genocide Convention. The definition of genocide is “acts intended to destroy, in whole or in part, a national, ethnical, racial or religious group.” But crucially, to meet the definition, you have to prove both that these acts are being committed and that these acts are intended to destroy the group in question. General warfare, however awful, doesn’t fit the criteria, and neither does individual acts of atrocities.

South Africa argues that all of the effects of this war on Gaza amount to genocide from Israel. In other words, what Israel is doing is not the routine conduct of war, as awful as that always is. Instead, Israel’s military activities are expressly intended to bring about the destruction of a substantial part of the Palestinian national, racial, and ethnic group. Israel, says South Africa, is implementing a plan to “destroy Gaza” that comes directly from the Israeli government’s highest officials, and is being carried out by the military.

At the risk of giving credence to South Africa’s exceptional hypocrisy, let’s take a look at how it presented this accusation. It focused almost entirely on the statements, not the actions, of the Israeli leadership.

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That was Tal Becker before the court, the Israeli Foreign Ministry’s legal counsel. South Africa cites a litany of inflammatory statements from Israeli officials as the only real evidence that Israel is committing genocide. Certainly these statements were, let’s say, not great. If you already wanted to think that Israel is committing genocide, then these statements can easily be construed as genocidal. Proof, says South Africa, of the government’s intent. But as Israel’s legal team pointed out, “To produce random quotes which are not in conformity with government policy is misleading at best.” South Africa took these officials at their word, without considering any additional context.

South Africa begins with the highest official, Prime Minister Benjamin Netanyahu. Netanyahu has repeatedly invoked the notion of Amalek in referencing Israel’s intentions towards Hamas. In the Hebrew Bible, Amalek — the Amalekites — are the arch-nemeses of the Israelites who repeatedly attack the Israelites. God commands the Israelites to always remember what the Amalekites did to them and to utterly wipe out their descendants: men, women, children, even their livestock. It’s not a great moment in the Hebrew Bible, to be sure, though there isn’t much evidence that the Amalekites were real or that ancient Israelites really did engage in this genocide. Still, “Amalek” has been a coded phrase on the far right for years with respect to seeing the Palestinians as the Israelis’ arch enemies. But Netanyahu has also said that the war is aimed only at eliminating Hamas, not the Palestinians, and that the government has no intention of permanently occupying Gaza or displacing its population. South Africa only takes Netanyahu at his word when he references the Amalekites; they ignore completely his contrary statements.

And by the way, you can find the phrase about never forgetting Amalek on a monument to a depopulated Jewish neighborhood located not far from the ICJ. So if referencing the Amalekites is evidence of genocidal intent, then the Netherlands has it prominently displayed in the heart of the Hague’s downtown.

Yet there are statements coming from Netanyahu’s extremist ministers that are pretty alarming, and who already have a track record of nastiness towards the Palestinians. Fanatics like Itamar Ben-Gvir and Bezalel Smotrich have been demanding that Israel reoccupy Gaza, and are pushing a scheme they call “voluntary relocation” but really amounts to expelling as many Palestinians as possible from Gaza. It’s terrible. But what’s most important here, that separates their words from Israel’s government action in Gaza, is that neither of these guys is part of the war cabinet setting policy or making decisions about the military’s conduct of the war.

On October 9, Yoav Gallant, Israel’s Minister of Defense, declared that Israel was “imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals and we are acting accordingly.” Gallant also told the IDF that he was releasing all the restraints and that, “we will eliminate everything.” Now, demonizing one’s enemies as “animals” is not something to be proud of, but neither is it uncommon from wartime leaders.

What South Africa fails to disclose is that Gallant was speaking in the aftermath of the massacre before Israel had attacked Gaza. The political scientist Shany Mor points out that Gallant’s “human animals” comments came while Israeli forces were battling Hamas terrorists inside Israel, fighting back against the people who were still rampaging around committing rape, murder, torture, and kidnapping as part of Hamas’ genocidal campaign. And yet this remark is the one being offered as the key piece of evidence that Israel is trying to wipe out all the Palestinians. Shany Mor writes that it was this original Hamas attack on October 7 that first brought out the accusations of genocide against Israel, again before Israel had even struck back in Gaza. It’s almost as if everyone was waiting for the opportunity to jump on that bandwagon.

It is true that Israel did seal off its border with Gaza in the aftermath of the massacre and in the beginning stages of the war; actions which could be construed as genocidal had they been permanent. But of course they weren’t, as Israel has let in thousands of tons of aid since then. As a South African friend of mine put it to me the other day, “If turning off the power to a disenfranchised population is a sign of genocidal intent, as South Africa claims at the ICJ, then the South African government is a bunch of genocidally—depraved monsters because of their program of rolling blackouts, euphemistically-termed ‘load shedding.’”

Rather than “releasing all restraints,” the IDF operates under a policy that requires the military to adhere to all international laws of war and Israel’s own rules of engagement. That is, that all attacks be directed solely at military targets, and in a manner intended to reduce civilian casualties as much as possible.

South Africa alleges that Israel’s warnings to civilians to leave areas of fighting were genocidal in nature, because they were intended to make life impossible — one of the criteria for genocide. But it was actually the opposite: Israel warned civilians away to prevent civilian casualties, despite Hamas using the people as human shields.

Tal Becker is the Israeli Foreign Ministry’s legal advisor. Becker argued that if there were acts of genocide, they were perpetrated against Israel. “In the applicant’s telling, it is almost as if there is no intensive armed conflict taking place between two parties at all, no grave threat to Israel and its citizens, only an Israeli assault on Gaza.” Professor Malcolm Shaw also argued before the court, reminding the judges that “not every conflict is genocidal. If claims of genocide were to become common currency of armed conflict wherever that occurred, the essence of that crime would be lost.” Israel’s legal team alleged that South Africa was weaponizing the term “genocide” in order to prevent Israel from defending its own citizens.

These were the basic arguments. Now what?

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The ICJ isn’t ruling right now on whether or not Israel committed genocide. That will take years. South Africa is asking the court to affirm that there is a plausible case of genocide here. If so, then South Africa wants the ICJ to issue an emergency order to force Israel to stop fighting. It could be days or weeks until we get a ruling.

The question is whether that ruling would have any teeth. It depends on how you look at it. The ruling is binding on countries that have signed up to the International Court of Justice — which Israel has. If the ICJ orders Israel to stop fighting, in theory Israel would need to comply. But the ICJ doesn’t have any way to enforce its order. If Israel refused to stop fighting, the ICJ could refer the case the UN Security Council, which then could decide to try to enforce the ruling. In the most extreme circumstance, the Security Council — the United States, UK, France, Russia, and China — could decide that the ruling is so essential to international peace and security that they could authorize attacking Israel to force it to stop the war. That has never happened before, and there’s no reason to think it would now.

The real impact of the ruling is to try to drive a wedge between Israel and its allies. If the ICJ rules against Israel, it’s saying that Israel is in violation of the expectations, norms, and values of the international community. That it’s on the wrong side of history. It’s a mark of shame that threatens to spread to Israel’s allies as guilt by association — they look bad by continuing to support Israel. Of course, that only works if Israel’s allies think the charge is real and serious, which they don’t. Germany has announced its intention to join the case on Israel’s side, both to stand with the Jewish State and to protest the politicization of the Genocide Convention.

Germany recognizes what is happening. This isn’t about stopping genocide but about demonizing Israel. To credibly accuse Israel of genocide is to apply what Shany Mor, the political scientist, calls the “special dictionary,” in which terms like proportionality, collective punishment, occupation, and genocide get construed to mean whatever Israel is doing, irrespective of what those terms have meant in the past.

The accusation of genocide is a convenient one for the Israel haters, because it allows them to pretend to be simply appealing to international law in their obsessive pursuit of Israel. Mor writes that these “thunderous intonations” about international law allow people to deflect any suspicion of bias against Israel or outright antisemitism. Mor writes that, “the argument is: there are laws and Israel is violating them, therefore my consuming hatred of Israel is just an application of these higher principles.” Mor calls this an “obsessive pathology” that is couched in the language of international law in order to make it seem neutral and reasonable.

The charge of genocide holds particular resonance in the context of the Jewish People, which is precisely its attraction to those who want to demonize the Jewish State. If the Jews — excuse me, now it’s the Zionists — are just as much war criminals as the Nazis, then they are just as guilty as the Nazis. It renders meaningless the impact of the Holocaust, erases Jewish suffering, and makes the Jews and their state as the most-evil embodiment of humanity’s dark side. Bringing the Jews in front of the world court just as their oppressors were, accusing them of the same genocide that was brought upon them, forcing them to answer for defending themselves against the same crime again, is intended as the ultimate manifestation of the Jews’ guilt and Israel’s illegitimacy. As the historian Ruth Wisse wrote, “Jews are blamed for the efforts to destroy them.”

And so the International Court of Justice case is a farce, though a serious one. It uses the idea of genocide to allow a supporter of genocide — South Africa — to go to bat for an implementer of genocide — Hamas — against a country, Israel, that while engaged in a brutal war of self-defense nevertheless has the policy of upholding the laws of war in order to save lives. As Tal Becker, the Israeli Foreign Ministry’s legal counsel, put it, “the [Genocide] convention becomes an aggressor’s charter. It will reward, indeed encourage, the terrorists who hide behind civilians, at the expense of the states seeking to defend against them.” That, of course, is the point of Hamas and South Africa and the other pathological Israel haters who hold nothing sacred — not rape, not kidnapping, not torture, and not genocide — in their pursuit of Israel’s destruction.

We await the court’s ruling.

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Today marks the 101st day of the war. A terrorist attack today killed one woman and injured 17 in Ra’anana, a city outside Tel Aviv. Turkey has declared its intention to join the ICJ trial on South Africa’s side. Turkey, which hosts Hamas leaders and helps to manage Hamas’ funding operations to enable it to carry out its genocidal ambitions, arrested and then deported an Israeli soccer star for displaying a wristband in honor of the hostages, which Turkey alleged was “incitement.”

And then there are the hostages. Yesterday Hamas released a 37-second clip of three hostages, promising that “tomorrow we will inform you of their fate.” We don’t know when or where the clips were filmed, and as I published this episode, there is no further information.

Around 132 Israeli hostages remain in Gaza, with very little known about their health or well-being. There are parents, children, two babies, several workers from Thailands, young people from the music festival, people we know were shot and wounded, even dead bodies that Hamas dragged into Gaza and refuses to return for proper burial. Israel has given medicine for the hostages to Qatar, which is supposed to turn them over to the Red Cross, which will then be responsible for bringing the medicine to them. Hamas and others have accused Israel of using this as a ploy to ascertain the hostages’ whereabouts, as if that would be some kind of atrocity. 120,000 people showed up a 24-hour vigil and rally in Tel Aviv to keep the pressure on the Israeli government. They argue that time is running out and the government isn’t doing enough to get them back. 101 days. For many in Israel, it’s still October 7, 101 days over and over in this upside-down world.

As always, I’m at jewoughtaknow.com and my email is jewoughtaknowpodcast@gmail.com. Thanks for listening everyone. Am Yisrael Chai — the Jewish People live.